Theodore v. State

OPINION COATS, Judge. Herbert Theodore was convicted, based upon his no contest plea, of the offense of incest, AS 11.41.450(a)(1), a class C felony. AS 11.41.450(b). Judge Beverly W. Cutler sentenced Theodore to five years with two years suspended. Theodore appeals this sentence, arguing that it is excessive. We affirm. Theodore points out that he has not formerly been convicted of a felony and argues that therefore his sentence should [988] not have exceeded two years, the presumptive sentence for a second felony offender convicted of a class C felony, unless his case can be termed exceptional. Austin v. State, 627 P.2d 657 (Alaska App.1981). We have reviewed the record and conclude that Judge Cutler found that Theodore’s case was exceptional, and that this finding is supported by the record. Judge Cutler considered the fact that although Theodore is a first felony offender for presumptive sentencing purposes, he has been convicted of a large number of serious misdemeanors. She also considered the fact that his was a particularly serious offense. AS 12.-55.155(c)(10). Judge Cutler pointed out that Theodore’s incestuous conduct had gone for several years and involved full intercourse with the victim. See Huckaby v. State, 632 P.2d 975, 976-77 n. 2 (Alaska App.1981) (sentencing judge can rely on all facts relevant to the nature of the offense to conclude that defendant is a worst offender). We conclude that these factors justify the sentence which Judge Cutler imposed.1 We find that the sentence was not clearly mistaken. AFFIRMED. Footnotes [1] Theodore argues that Judge Cutler improperly relied on evidence that the victim was "a basket case" from the incest. This information apparently came in part from a child in need of aid (CINA) hearing which was held in front of Judge Cutler. However, we note that at the conclusion of the sentencing Judge Cutler gave the parties an opportunity to comment on the matters which she considered in sentencing. Theodore never objected to the information from the CINA hearing, and we assume that he was familiar with the information presented in that hearing since it involved his daughter and he should have been a party to the hearing. Theodore did make an offer of proof as to some testimony which he wished to present concerning harm to the victim. Judge Cutler accepted Theodore’s offer of proof and indicated that the offered testimony would not make any difference in her sentence. Judge Cutler indicated that the length of time the incest went on and the seriousness of the case was the determining factor in the sentence. We conclude that if it was error for Judge Cutler to consider the evidence of the harm to the victim from the offense which was presented to her during the CINA hearing, the error was harmless.