Memorandum decisions of this Court do not create legal precedent.
Judge MANNHEIMER.
Jeffrey Allan Hout suspected that Benjamin Kaiser had stolen his truck. With the help of an accomplice, Harry Williams, Hout retaliated by kidnapping Kaiser, taking him to his shop, tying him to a table saw, and then beating and torturing him over the course of several hours. Kaiser died as a result of this treatment.
Following a jury trial, Hout was found guilty of second-degree murder, kidnapping, and tampering with evidence. The superior court later sentenced Hout to a composite 104 years' imprisonment without possibility of discretionary parole. Hout now appeals the superior court's sentencing decision.
Hout argues that the superior court improperly failed to consider the positive aspects of his background. Hout also argues that the record does not support the court's conclusions that he lacked remorse for his actions, that he was "beyond rehabilitation", and that he was a "worst offender" (as that term is defined in Alaska sentencing decisions).
In a related argument, Hout contends that, as a matter of due process, all facts that are "significant" to a court's sentencing decision must be proved by clear and convincing evidence, rather than by a preponderance of the evidence.
Hout also argues that the superior court should not have sentenced him without first ordering a psychiatric evaluation.
And finally, Hout argues that his composite sentence is excessive.
For the reasons explained in this opinion, we conclude that Hout's contentions have no merit, and we therefore affirm his sentence.
On the evening of October 25, 2010, nineteen-year-old Benjamin Kaiser showed up at the Bethel residence of Nicholas Cooke. Kaiser had only known Cooke for a few weeks, but they were becoming friends. On this particular evening, however, Cooke was upset with Kaiser because Kaiser was drunk. In addition, Cooke suspected that Kaiser had stolen two of his marijuana plants. Cooke told Kaiser to leave his house, and Kaiser complied.
The next morning (October 26th), Cooke awoke to find that his three remaining marijuana plants had been stolen. He also noticed that there were fresh tracks in the snow leading away from his house. Cooke went outside and began following the footprints. Along the way, he ran into Jeffrey Hout and Harry Williams.
Hout, who was 46 years old, worked in construction. Williams (who was Cooke's cousin) worked for Hout and lived with him. Cooke thought that both men seemed intoxicated.
When Cooke told Hout and Williams that someone had stolen his marijuana plants the night before, Hout replied that someone had stolen his truck that same night. Then Hout asked Cooke if he knew someone named Benjamin Kaiser. When Cooke told the two men that he did know Kaiser, and that he suspected Kaiser of stealing his marijuana, the two men declared that Kaiser was the one who stole Hout's truck.
Cooke offered to drive Hout and Williams around Bethel to find Hout's stolen truck. But instead of driving around Bethel to find the truck, Hout and Williams told Cooke to drive to Hout's house because they wanted to show something to Cooke.
When they arrived at Hout's house, Hout and Williams brought Cooke into Hout's unheated shop. Kaiser was inside the shop. He was naked, and his feet were tied to Hout's table saw with electrical wire. The table portion of the saw was long enough to support Kaiser's buttocks and legs, but his upper body was hanging over the edge of the table, and his hands were tied to the table saw's frame. Kaiser's mouth was gagged with a black cloth that was held in place with wire wrapped around his head.
Kaiser had been whipped and beaten so badly that Cooke could hardly recognize him. His hair was caked with blood. His genitals were visibly bruised. Cooke noticed that Kaiser's breathing was shallow.
As soon as the three men entered the shop, Hout and Williams began yelling at Kaiser, asking if he was alive or dead, and prodding him with various instruments. Hout then began whipping Kaiser with electrical wire. The whipping caused Cooke to be splattered with Kaiser's blood.
While he whipped Kaiser, Hout yelled, "Where's my truck? Where the fuck is my truck? Where's my tools?" Then Hout laughed and said, "Oh, yeah, I forgot — you're gagged!"
After Hout whipped Kaiser, Williams applied an electric sander to Kaiser's body and hit him on the shins with an angle iron. Kaiser remained unresponsive throughout this beating. Hout declared that they had to "dump [Kaiser] in the river" to prevent Kaiser from later returning to seek revenge.
Around 8:15 a.m., Hout, Williams, and Cooke left the shop — leaving Kaiser tied to the table saw — and went into Hout's house to have coffee and smoke marijuana. While they were in Hout's kitchen, Hout and Williams discussed mining for a while, and then they talked about re-initiating the search for Hout's truck. At that point, Hout left to retrieve a spare key to his truck from one of his tenants, David Kenney.
After a while, when Hout did not return, Cooke and Williams went out to Hout's shop — where they found Hout and Kenney. Kenney insisted that Kaiser was going to die unless they brought him inside where there was heat. (The outside temperature was below freezing.) Later, after Kenney had left, Hout, Williams, and Cooke untied Kaiser from the table saw, dressed him, and carried his bleeding body into Hout's house. Kaiser was in Hout's unheated shop for about six hours before he was moved into the house.
The men laid Kaiser on the floor of Hout's kitchen, where they undressed him and began cleaning his wounds with cotton balls and alcohol. Hout and Williams tried to give Kaiser something to drink, but Kaiser was not swallowing. His breathing was shallow and intermittent.
Cooke left Hout's house a little before 9:00 a.m. because he had to take his son to school. Thirty-two hours later (i.e., late in the afternoon of the following day), Cooke reported this incident to the police.
Before Cooke made his report to the police, Hout telephoned a number of people, both family and friends, and indicated that he had "done something bad". He told one friend that he thought he had beaten a kid to death. He told another friend that he had murdered someone. There was no evidence that Hout expressed remorse for Kaiser's death during these conversations.
When the police arrived at Hout's residence, they found Kaiser in one of the bedrooms. Kaiser was lying dead, his body covered by a blanket, with a garbage bag draped over his face. The medical examiner testified that Kaiser's entire head had suffered blunt-force injury — and that these injuries were the cause of Kaiser's death. There were also injuries to every other surface of Kaiser's body. His face and neck were bruised, swollen, and scratched. The tissue on the inside of his mouth had been injured from impact with his teeth. There was linear bruising on his arms, torso, back, and feet. There was a looped bruising pattern on his thighs, hip, buttocks, and back. And the medical examiner testified that the bruising on Kaiser's abdomen was consistent with an injury inflicted by a metal angle iron.
A jury convicted Hout of second-degree murder, kidnapping, and evidence tampering.
Both second-degree murder and kidnapping are unclassified felonies,
Apart from a reckless driving conviction in 2002, Hout had no prior criminal convictions. He had earned a bachelor's degree in business management, and he had a good employment history, making use of his carpentry skills. The pre-sentence investigator thought that Hout had good prospects for rehabilitation, although the investigator could provide no explanation for Hout's violent behavior toward Kaiser. The pre-sentence investigator suggested that the court obtain a psychological evaluation to help determine what triggered Hout's extreme violence on the night of the offense.
At the sentencing hearing, both the prosecution and the defense supported their sentencing arguments by relying on aggravating and mitigating factors codified in AS 12.55.155(c) and (d). As the sentencing judge recognized, these aggravators and mitigators did not strictly apply to Hout's sentencing for second-degree murder and kidnapping — because sentencing for these offenses is not governed by the presumptive sentencing laws. The judge nevertheless allowed the parties to argue these factors by analogy.
(This Court has repeatedly approved a sentencing judge's use of the statutory aggravating and mitigating factors as points of reference when sentencing a defendant for a crime not governed by presumptive sentencing — to help assess how the defendant's conduct should be viewed in comparison to a typical instance of the crime. See Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002); Sakeagak v. State, 952 P.2d 278, 284 (Alaska App. 1998); Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984).)
The prosecutor argued that Hout's offenses were aggravated because Hout acted with deliberate cruelty, and that Hout's conduct was among the worst included within the definition of second-degree murder because the evidence demonstrated that Hout intended to kill Kaiser, thus making him factually guilty of first-degree murder. See Benboe v. State, 698 P.2d 1230, 1232 (Alaska App. 1985).
Hout's attorney argued that Hout had a good prior record (only one driving offense), and that he had good prospects for rehabilitation. The defense attorney pointed out that Hout was an educated man who had successfully run a business and who had solid ties to the Bethel community. The attorney suggested that alcohol had influenced Hout's life in the year or two preceding this offense, and that Hout could again lead a productive life if his substance abuse problem was addressed. The defense attorney rejected the prosecutor's contention that Hout had intended to kill Kaiser; the attorney argued that the jury had reached the appropriate conclusion regarding Hout's mental state when they acquitted him of first-degree murder and found him guilty of only second-degree (non-intentional) murder.
Finally, the defense attorney asked the judge to impose a sentence within the 20- to 30-year benchmark range established in Page v. State, 657 P.2d 850, 854-55 (Alaska App. 1983), for a "typical" second-degree murder. Hout's attorney argued that, given Hout's age, a sentence within this benchmark range would keep Hout in prison long enough that he would no longer be a danger to the community upon his release.
Hout exercised his right of allocution, and he told the court that he was "truly very, very sorry for [his] actions on that fateful morning." Hout declared, "Not a day goes by that I [don't] wish I could change the events that led to [Kaiser's] death. In my heart, I know I did not intend for this to happen. . . . My actions can never and should never be condoned. . . . Please forgive me."
In his sentencing remarks, the sentencing judge agreed with the prosecutor that Hout had acted with deliberate cruelty. The judge noted that Hout had tied up Kaiser, upside-down and naked in a freezing shop, and had beaten and tortured him with various implements for six hours. The judge also found that Hout's declared intent to throw Kaiser in the river showed a "total lack of remorse".
The judge rejected the prosecutor's contention that the evidence demonstrated that Hout acted with the intent to kill Kaiser — although the judge conceded that the evidence would support this inference. However, the judge declared that it was "of little practical significance for sentencing purposes" whether Hout acted with a conscious intent to kill — because the judge concluded that Hout's conduct was "the moral equivalent of murder in the first degree" even if Hout did not beat and torture Kaiser with the specific intent to kill him.
The judge added that Hout and his co-defendant Williams "were high on killing" — that they beat and tortured Kaiser for "personal gratification", and that it was "a thrill for the defendants to do what they did".
Based on these findings, the sentencing judge concluded that the horrific circumstances of the kidnapping and murder outweighed the favorable aspects of Hout's educational and work history. The judge then added:
With regard to the defense attorney's contention that Hout's offenses were primarily fueled by alcohol, the sentencing judge declared that he had searched the record for evidence that alcohol consumption had affected Hout's behavior, but had found very little evidence to support this assertion. The judge acknowledged that it was likely that Hout had been drinking, but the judge declared that Hout's actions gave no indication that his capacities were diminished by alcohol at the time of the offense. Instead, the judge found that Hout was his "usual self" when he kidnapped and tortured Kaiser.
Based on all these findings, the court sentenced Hout to 104 years' imprisonment — 99 years for second-degree murder, a consecutive 5-year sentence (the mandatory minimum) for kidnapping, and a 1-year concurrent sentence for evidence tampering.
The sentencing judge also ordered that Hout not be eligible for discretionary parole. The judge acknowledged that, normally, the Parole Board was presumed to be in a better position to determine whether a prisoner should be granted parole release, but the judge concluded that the "inexplicable nature of [Hout's] conduct" rebutted this presumption. The judge found that Hout constituted an extreme and permanent danger to the public, as manifested by his "extreme and deliberate cruelty, [his] demonstrated ability to dehumanize others, [his] lack of self-control, [his] lack of empathy, and [his] sheer meanness" during the kidnapping and murder.
As we noted earlier, the author of Hout's pre-sentence report had no explanation for why Hout acted with such extreme violence. The author suggested that Hout's case "warrant[ed] a psychological evaluation to help identify and address [Hout's] rehabilitation needs." But Hout's attorney did not ask the superior court to order such an evaluation, nor did Hout procure one himself. Instead, the parties proceeded to sentencing without a psychological evaluation. Hout now argues that this was plain error.
Hout's claim of plain error founders on the fact that Hout had a constitutional right to refuse to participate in a court-ordered psychological evaluation if the results could potentially be used against him at his sentencing. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), where the United States Supreme Court held that a criminal defendant has a Fifth Amendment right to decline to participate in a psychiatric examination to the extent that (1) the results of the examination can be used to prove the defendant's guilt or to enhance the defendant's sentence, and (2) the psychiatric evaluation will be based on the defendant's statements elicited during the examination. 451 U.S. at 461-69, 101 S.Ct. at 1872-76.
In other words, it was completely up to Hout whether to pursue a pre-sentencing psychological evaluation. Hout did not ask the court to order such an evaluation, nor did Hout ask the court to delay the sentencing hearing until he could obtain a psychological evaluation on his own.
We accordingly hold that the superior court did not commit plain error when the court sentenced Hout without such an evaluation.
As we have explained, even though sentencing for second-degree murder and kidnapping is not governed by Alaska's presumptive sentencing laws, the superior court allowed the prosecutor and the defense attorney to draw analogies to the aggravating and mitigating factors codified in AS 12.55.155 when the two attorneys made their sentencing arguments.
Ultimately, the judge agreed with the prosecutor that Hout acted with deliberate cruelty (aggravating factor (c)(2)), and that Hout's conduct was among the most serious within the definitions of second-degree murder and kidnapping (aggravating factor (c)(10)).
On appeal, Hout argues that it was error for the superior court to rely on these aggravators without making the State prove them beyond a reasonable doubt. Hout bases this argument on two types of legal authority: United States Supreme Court decisions interpreting the right of jury trial under the Sixth Amendment, and — alternatively — the American Bar Association's sentencing recommendation that "[all] important factors" used to determine the legal gravity of an offense should be proved beyond a reasonable doubt.
Under the Sixth Amendment (made applicable to the states by the Fourteenth Amendment), a defendant has a right to a jury trial on all issues of fact which, if found in the government's favor, would alter the applicable sentencing range to the defendant's detriment — either by increasing the applicable maximum sentence,
But we have expressly held that the Sixth Amendment right to jury trial does not apply to the findings of fact that a judge might make during a sentencing for second-degree murder in Alaska — because second-degree murder is not covered by our presumptive sentencing laws. Lindeman v. State, 244 P.3d 1151, 1162 (Alaska App. 2011). As we explained in Lindeman, sentencing for second-degree murder is indeterminate, not presumptive: that is, a judge's authority to impose any sentence within the 10- to 99-year range prescribed by the legislature does not hinge on any factual findings apart from the jury's verdict. Ibid.
Thus, even though a judge may rely on certain facts — i.e., emphasize certain factual aspects of the case — when choosing a sentence within the prescribed penalty range, the judge does not "rely" on these facts in any sense pertinent to the Sixth Amendment.
The same is true of a judge's authority when sentencing a defendant for kidnapping. The prescribed sentencing range for this offense is slightly different — 5 to 99 years instead of 10 to 99 years — but, as with second-degree murder, sentencing for this offense is indeterminate rather than presumptive.
Finally, we note that our supreme court has held that there is no Sixth Amendment right to jury trial with respect to facts that a sentencing judge relies on when deciding whether to restrict or eliminate a defendant's eligibility for discretionary parole — because AS 12.55.115 gives this authority to a sentencing judge in all cases, without any additional finding of fact.
We therefore conclude that there is no merit to Hout's argument based on the Sixth and Fourteenth Amendments.
Hout also urges us to follow the recommendation of the American Bar Association that legislatures "should define offenses so that [all] important factors determining the gravity of offenses are made elements of the offenses rather than aggravating factors to be considered only in sentencing." ABA Standards for Criminal Justice (3rd ed. 1994), "Sentencing", Standard 18-3.3(a). Hout reasons that if all "important factors" are treated as if they were elements of the offense, then he (and all other defendants) would be entitled to require the State to prove these facts beyond a reasonable doubt.
There are several flaws in Hout's argument. First, ABA Standard 18-3.3(a) is directed to legislatures, not the courts. It is the legislative branch that defines offenses, and Standard 18-3.3(a) is expressly addressed to legislatures.
Second, the ABA standard appears to be based on the same underlying policy as the United States Supreme Court's decisions interpreting the Sixth Amendment right to jury trial. And under those decisions, a defendant already has the right to demand a jury trial and to demand proof beyond a reasonable doubt whenever the resolution of a factual issue in the government's favor will alter the judge's sentencing authority to the defendant's detriment.
Third, to the extent that the American Bar Association is advocating an even greater expansion of the rights to jury trial and to proof beyond a reasonable doubt, the ABA's recommendation is inconsistent with Alaska law — and we are bound to follow the law, despite the ABA's recommendations. See W.S. v. State, 174 P.3d 256, 261 (Alaska App. 2008).
As we described earlier, the superior court sentenced Hout to 99 years' imprisonment for second-degree murder. This is the maximum term of imprisonment allowed for this crime. AS 12.55.125(b).
Under Alaska law, a sentencing court should not sentence a defendant to the maximum term of imprisonment unless the court finds that the defendant is a "worst offender" as that term has been defined in State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975), and Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990). In Hout's case, the superior court never expressly found that Hout was a "worst offender", although this finding appears to be implicit in the court's characterization of Hout and the offenses in this case.
On appeal, Hout argues that the superior court was clearly mistaken in treating him as a worst offender. But that issue is moot under the circumstances of this case.
Hout was convicted of two unclassified felonies: second-degree murder and kidnapping. Because both of these unclassified felonies carry a maximum penalty of 99 years' imprisonment, Hout potentially faced a sentence of up to 198 years in prison.
Ultimately, the superior court imposed a sentence of 104 years. The judge achieved this composite sentence by imposing a 99-year sentence (the maximum sentence) for second-degree murder, coupled with a consecutive 5 years (the minimum allowable sentence) for kidnapping.
Hout argues that the court was not authorized to impose the 99-year maximum sentence for second-degree murder unless the judge expressly found that Hout was a "worst offender". But, from the record, there appears to be little significance to the judge's decision to impose 99 years for the murder conviction.
As this Court has noted in past decisions, judges who are sentencing defendants for two or more offenses generally have a composite sentence in mind, rather than fixed ideas about the specific sentences for the defendant's individual crimes.
Custer v. State, 88 P.3d 545, 549 (Alaska App. 2004).
For this reason, when a defendant attacks a composite sentence as excessive, Alaska law directs us to focus on the justification for the defendant's composite sentence rather than on the justification for any individual sentence the defendant received for a specific offense.
In Hout's case, the record gives no indication that the sentencing judge thought it was particularly important whether Hout's composite sentence of 104 years was achieved by combining a murder sentence of 99 years and a kidnapping sentence of 5 years, as opposed to any other combination of murder and kidnapping sentences that totaled 104 years. Thus, the question is not whether Hout's 99-year sentence for murder is justified when viewed in isolation, or whether Hout qualified as a "worst offender" among all defendants convicted of second-degree murder. Instead, the question is whether Hout's composite sentence of 104 years — the combined sentence he received for second-degree murder and kidnapping — is clearly mistaken, given the whole of his conduct and history.
To decide this issue, we look to the legal test announced in Neal v. State, 628 P.2d 19 (Alaska 1981). In Neal, 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.
Although the Neal decision speaks of a "formal finding", the supreme court actually affirmed the sentence in Neal even though the sentencing court failed to make a formal finding of this kind. The Neal court declared that an appellate court could overlook the lack of a formal finding when "[i]t is clear that the defendant presents a threat of criminal conduct which would seriously threaten the public safety." Ibid.
See Powell v. State, 88 P.3d 532, 538 (Alaska App. 2004), and Waters v. State, 64 P.3d 169, 174-75 (Alaska App. 2003), where this Court upheld composite sentences that exceeded the maximum for the defendant's single most serious offense even though the sentencing court failed to make an express Neal finding.
Here, the superior court found that Hout committed murder for the "thrill" of it — and that, as a middle-aged man, he was "beyond rehabilitation". The court declared that a primary factor in its sentencing decision was "isolation of [Hout] from society", inasmuch as Hout constituted an extreme and permanent danger to the public because of the "inexplicable nature of [his] conduct", his "extreme and deliberate cruelty, [his] demonstrated ability to dehumanize others, [his] lack of self-control, [his] lack of empathy, and [his] sheer meanness".
The record supports the sentencing judge's conclusions. Given these conclusions, under the test announced in Neal, the superior court could lawfully impose a composite sentence of 104 years to serve even though this sentence slightly exceeded the 99-year maximum for either second-degree murder or kidnapping alone.
As we have explained, the superior court ordered that Hout could not apply for discretionary parole release during his 104-year sentence. As a practical matter, this means that Hout will have to serve two-thirds of this sentence before he becomes eligible for mandatory parole under AS 33.20.010 et seq.
Under Alaska law, a sentencing judge who decides to restrict a defendant's eligibility for parole must "specifically address the issue of parole restriction" and must "[explain] with particularity" the reasons for concluding that the normal parole eligibility prescribed by statute "is insufficient to protect the public and ensure the defendant's reformation." Hinson v. State, 199 P.3d 1166, 1173 (Alaska App. 2008), quoting Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).
Hout contends that the superior court failed to make sufficient findings to justify the court's decision to eliminate Hout's eligibility for discretionary parole. For the reasons we described in the preceding section of this opinion, we conclude that the superior court articulated sufficient reasons to restrict Hout's parole eligibility.
Hout argues that his sentence, a total of 104 years' imprisonment with no possibility of discretionary parole release, is excessive. The applicable legal test is whether this sentence, evaluated under the sentencing goals codified in AS 12.55.005, is "clearly mistaken" — i.e., whether it exceeds the "permissible range of reasonable sentences" for the offenses at issue here, and for this particular offender. State v. Korkow, 314 P.3d 560, 562 (Alaska 2013).
Here, the superior court found — and the record amply demonstrates — that Hout committed acts of extreme violence and cruelty over the course of several hours upon a completely helpless teenage boy. He then left the boy to die.
There was essentially no reason for Hout to perpetrate this violence on his victim. The superior court found that Hout acted gratuitously — simply for the personal gratification and the thrill.
As this Court noted in Hamilton v. State, 59 P.3d 760, 772 (Alaska App. 2002), "we have repeatedly upheld sentences in the upper end of the penalty range for defendants who committed gratuitous or otherwise inexplicable acts of extreme violence".
Although Hout expressed remorse for his actions during his allocution at the sentencing hearing, the sentencing judge did not believe that Hout's remorse was genuine. The judge instead looked to Hout's actions at the time, and concluded that Hout showed a "total lack of remorse".
Hout was in his mid-forties when he committed these crimes. He was no longer a young man whose actions might be attributed to immaturity or youthful impulsiveness. Moreover, Hout's hours-long torture of his victim could not reasonably be attributed to a momentary loss of control.
We acknowledge that Hout's sentence will keep him in prison for the rest of his life. But the superior court intended this result: the court declared that Hout's actions "demonstrate[d] that [he was] not fit to live in the same community as others".
Given the record in this case, we conclude that the sentence imposed by the superior court is within the range of reasonable sentences that a judge might impose for Hout's crimes.
The judgement of the superior court is AFFIRMED.
