Cynthia L. Strout, Anchorage, for the Appellant.
James J. Fayette, Assistant District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
This case requires us to re-examine and apply the Neal - Mutschler rule-the rule that, when a defendant is being sentenced for two or more crimes, the defendant's composite sentence of imprisonment may not exceed the maximum sentence of imprisonment for the defendant's single most serious offense unless the sentencing judge affirmatively finds that a longer term of imprisonment is necessary to protect the public. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Powell v. State, 88 P.3d 532, 537 & n. 9 (Alaska App.2004).
In the present case, the defendant was convicted of four class A misdemeanors, each with a maximum sentence of 1 year's imprisonment. Thus, the Neal ceiling was 1 year. The sentencing judge affirmatively found that the need to protect the public did not require a sentence of more than 1 year. Nevertheless, the judge concluded that the facts of the case required a more severe sentence-and, accordingly, he sentenced the defendant to a composite term of 545 days ( i.e., approximately 1 1/2 years).
As we explain in more detail in this opinion, we conclude that the facts of this case provide sufficient justification for imposing a more severe composite sentence than the 1-year Neal ceiling. Even though Neal seemingly allows only one justification for such a sentence ( viz., the need to protect the public), the Alaska Supreme Court's post- Neal decisions show that the court has altered its position regarding sentencing benchmark rules. In its more recent sentencing decisions-in particular, State v. Hodari, 996 P.2d 1230 (Alaska 2000), State v. Bumpus, 820 P.2d 298 (Alaska 1991), and State v. Wentz, 805 P.2d 962 (Alaska 1991)-the supreme court has declared that appellate courts should not place inflexible restrictions on a sentencing judge's authority based on pre-established criteria. Instead, the supreme court has taken the position that sentencing benchmarks serve only as guidelines, and that any sentencing decision ultimately must be justified on the particular facts of a defendant's offense and background, evaluated in light of the sentencing criteria codified in AS 12.55.005 and the range of sentences authorized by the legislature.
Based on Hodari , Bumpus, and Wentz, we conclude that the Neal rule must be construed in a manner flexible enough to encompass other compelling justifications for a longer sentence. And given the facts of the present case (as found by the district court), we conclude that the district court had a compelling justification for imposing a sentence exceeding 1 year to serve.
In 1994, Eugene Clayton Phelps was on trial for three counts of aggravated indecent exposure, former AS 11.41.460. This offense, a class A misdemeanor, was defined as knowingly exposing one's genitals in the presence of another person under 16 years of age, acting with reckless disregard for the offensive, insulting, or frightening effect that this conduct may have. 
Phelps was charged with exposing himself and masturbating at the bedside of his girlfriend's teenage daughter between December 1990 and March 1991, when the girl was 13 and 14 years old. On the first day of Phelps's trial, the State made an offer of proof (outside the presence of the jury) in support of its motion to be allowed to present evidence of other bad acts. Specifically, the State presented the testimony of the victim's older sister, who told the court that, over the course of several months in 1988, Phelps had masturbated at her bedside and had attempted to engage in sexual penetration with her. The victim's sister was 15 years old at the time.
The day after the victim's sister presented this in camera testimony, Phelps failed to
appear for trial. His trial continued without him, and Phelps was convicted of the three counts of indecent exposure-although, of course, he was not sentenced at that time. Nearly sixteen years later, Phelps was located and taken into custody. At that time, he was tried for, and convicted of, misdemeanor failure to appear, AS 12.30.060.
Phelps's sentencing hearing in the district court
Each of Phelps's four offenses (the three counts of indecent exposure, and the single count of failure to appear) carried a maximum penalty of 1 year's imprisonment. Phelps was sentenced for all four crimes at a consolidated sentencing hearing before District Court Judge J. Patrick Hanley.
Judge Hanley found that Phelps had masturbated in front of the younger sister ( i.e., the named victim in the three indecent exposure counts) approximately one dozen times, and that Phelps would watch her when she slept. Judge Hanley also found that Phelps's crimes took an emotional toll on the victim and on her family. The victim began wearing a swimsuit when she bathed, so that Phelps would not see her naked if he came into the bathroom, and she affixed a wind chime to her bedroom door, so that she would know if Phelps entered her room during the night.
Judge Hanley found that Phelps's conduct was among the most serious types of indecent exposure, both because of the conduct itself and also because of its emotional effect on the victim and the divide that it created in the victim's family. Weighing the Chaney sentencing criteria now codified in AS 12.55.005, Judge Hanley declared that there was " no doubt in [his] mind that the ... criteria of community condemnation and deterrence of Mr. Phelps requires a ... substantial jail sentence, and [his offense] does constitute the worst offense of the types of [conduct encompassed within] indecent exposure."
Having found that Phelps's crime of indecent exposure was among the worst offenses within the definition of that crime, Judge Hanley then addressed the Neal - Mutschler rule, as interpreted by Judge Singleton (a former judge of this Court) in his concurrence in Peruski v. State, 711 P.2d 573, 575 (Alaska App.1985):
The Court: [My finding] leads us ... next [to] the [ Neal -] Mutschler rule.... [Under that rule,] in order to impose consecutive sentences that exceed the [1-year] maximum sentence for the single most serious count, the sentencing court must expressly find that the [greater] term of imprisonment is necessary for the protection of the public[,] ... and [that] the defendant can neither be rehabilitated nor deterred by a shorter sentence.... [I]t's a pretty strong rule[, and it can not be satisfied by] the [sentencing] judge's perception of a need for the deterrence of other wrongdoers or the affirmation of community norms.
Judge Hanley noted that there was no evidence that Phelps had engaged in further sexual misconduct-indeed, further criminal activity of any kind-during the more than fifteen years between the time he absconded from his trial and the time he was caught and arrested. Based on the fact that Phelps had apparently been law-abiding for the immediately preceding fifteen years, Judge Hanley concluded that he could not, in good faith, find that Phelps could not be rehabilitated or deterred by a sentence of 1 year or less, or that the protection of the public required a composite sentence of more than 1 year's imprisonment.
Accordingly, Judge Hanley ruled that even though Phelps's acts of indecent exposure were among the most serious offenses within the definition of that crime, Phelps's sentences for these three counts of indecent exposure should not cumulatively exceed 1 year.
However, Judge Hanley then turned to Phelps's separate offense of failure to appear.
Judge Hanley noted that if Phelps's sentence for this crime was included within the Neal - Mutschler rule-in other words, if the judge was barred from giving Phelps additional jail time for this offense, over and above the 1 year that the judge believed was the proper composite prison term for Phelps's three acts of indecent exposure-then this result would seemingly conflict with the doctrine that a defendant should normally receive consecutive jail time for crimes of escape or failure to appear. See Walton v. State, 568 P.2d 981, 986 (Alaska 1977); Hayes v. State, 790 P.2d 713, 717 (Alaska App.1990).
Judge Hanley noted that Phelps's act of failing to appear " wasn't a garden-variety failure to appear at a pre-trial conference, or even [at] a trial call" . Instead, Phelps's failure to appear was significantly more serious-because (as Judge Hanley found) Phelps committed this offense " after [his] trial had begun, [and] after [he] ... hear[d] what the [other crimes] evidence was, ... and after he ... reach[ed] the conclusion that it wasn't looking good for him" .
Judge Hanley concluded that Phelps's failure to appear also was serious for a separate reason: " the effect that it had on other people" . Because Phelps absconded in the middle of trial, he remained unsentenced (and his whereabouts remained unknown) for more than 15 years. Judge Hanley found that, as a result of the unfinished status of the criminal prosecution against Phelps, the emotional problems that the victim and her sister experienced as a result of Phelps's underlying conduct (his acts of indecent exposure) were exacerbated and prolonged.
Based on all of this, Judge Hanley concluded that Phelps should receive a composite sentence of more than 1 year's imprisonment for the three acts of indecent exposure and the separate act of failure to appear:
The Court: [Phelps's] indecent exposures are so significant that they require ... [a sentence of] one year in jail[, just] for those.... [His] failure to appear is significant also.... [But] if that [offense is] governed by [ Neal -] Mutschler, it would be as if nothing ever happened [to Phelps] because of it. It [would] be [as if] it was never considered in [Phelps's] sentencing and never reflected in [his sentence].
[I conclude] that if there is no consequence [to Phelps] for the failure to appear, [that] would frustrate the sentencing criteria [codified in AS 12.55.005].... [It] would have the same effect as if he had no conviction for failure to appear.
And so, for those reasons, [even though] the indecent exposure [sentences] are bound by the [ Neal -] Mutschler rule, ... I don't think that the failure to appear sentence [is covered by that rule].... [And] I am going to make [the failure to appear sentence] consecutive to the indecent exposure [sentences] for those reasons.
Judge Hanley then sentenced Phelps to serve a total of 365 days on the three indecent exposure counts, with a consecutive 180 days for the failure to appear count. In other words, Phelps received a total of 1 1/2 years to serve for his four offenses.
Why we uphold the district court's sentencing decision
On appeal, Phelps argues that Judge Hanley violated the Neal - Mutschler rule when he imposed a composite sentence of more than 1 year (the maximum sentence for any single one of Phelps's crimes) after explicitly finding that a sentence of more than 1 year was not required by the sentencing goal of protecting the public.
Almost thirty years ago, in Neal v. State, 628 P.2d 19 (Alaska 1981), the Alaska Supreme Court endorsed the rule that a sentencing judge should not impose a composite sentence exceeding the maximum term of imprisonment that could be imposed for the defendant's single most serious offense unless the judge " make[s] a formal finding that confinement for the combined term is necessary to protect the public" . Id. at 21.
This sentencing rule was derived from the American Bar Association's " Standards Relating to Sentencing Alternatives and Procedures"
(Approved Draft, 1968), § 3.4(b)(iv): " Imposition of a consecutive sentence should require the affirmative action of the sentencing court. The court should be authorized to impose a consecutive sentence only after a finding that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant." (Quoted in footnote 3 of Neal, 628 P.2d at 20.)
(For many years, this Court referred to the supreme court's sentencing rule as the " Mutschler " rule, even though the supreme court expressly declined to reach this issue in Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977), and did not adopt the rule until Neal. For the last several years, this Court has referred to the rule using the names of both supreme court decisions: the " Neal - Mutschler " rule.)
This Court has repeatedly applied the Neal- Mutschler rule to both felony sentences and misdemeanor sentences. However, in the years since the Neal decision, both the Alaska Supreme Court and the American Bar Association have reconsidered their approach to the type of sentencing rule epitomized by Neal- Mutschler -that is, a rule that sets an absolute limit on a sentencing judge's discretion (in addition to the limits already contained in the pertinent sentencing statutes) unless the record supports one ...