AUER v. STATE, A-9442 (Alaska App. 12-13-2006)

JASON T. AUER, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9442.Court of Appeals of Alaska.
December 13, 2006.

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-3383 CR.

Valerie Leonard and Diane L. Foster, Assistant Public Defenders, Palmer, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Rachel K. Gernat and Suzanne Powell, Assistant District Attorneys, Palmer, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.

Jason T. Auer, a first felony offender, pleaded no contest to one count of first-degree sexual abuse of a minor.[fn1] After the superior court imposed the applicable presumptive 8-year term, Auer appealed to this court, contending that the superior court improperly rejected proposed mitigating factor AS 12.55.155(d)(9) (Auer’s conduct was among the least serious within the definition of the offense).

In an earlier opinion, we remanded the case to the superior court for additional findings to resolve Auer’s claims.[fn2] We now have the additional findings from Superior Court Judge Eric Smith. Judge Smith again rejected Auer’s proposed mitigating factor and also found that Auer’s case was not an appropriate case for referral to the three-judge panel. We conclude that the record supports Judge Smith’s findings. Accordingly, we reject Auer’s arguments and affirm the superior court because we independently conclude that Auer’s conduct was not among the least serious within the definition of the offense.[fn3]

We discussed the facts of the case in our previous opinion and need not repeat them here. Essentially, then-23-year-old Auer was watching television with H.F., a 12-year-old girl, late at night at H.F.’s residence. Auer lay down next to H.F. and began kissing her. Auer removed H.F.’s pants and underwear, and while he was engaging in cunnilingus with H.F., H.F.’s mother walked into the room.

This discovery led to an investigation by the police. After the police obtained a Glass warrant and recorded Auer’s admissions in a call with H.F.’s mother, the police contacted Auer directly. At first, Auer told the police he had no idea why they were there. But the police told Auer about their investigation, and Auer confessed.

In the superior court, Auer contended that mitigating factor (d)(9) was established because his crime was a one-time incident of oral sex, because he took responsibility by admitting his behavior almost immediately and by cooperating with the police, and because he showed remorse.

Judge Smith rejected the mitigating factor (d)(9) because he found that “the conduct itself is not least serious.” Because it was possible that Judge Smith rejected (d)(9) without considering facts that potentially supported the mitigating factor, we remanded the case for additional findings. We also requested that Judge Smith address whether the facts supported a referral to the three-judge sentencing panel based on the non-statutory mitigating factor of exemplary post-disclosure conduct discussed in State v. McKinney.[fn4]

On remand, neither party offered additional evidence. Instead, both parties offered their characterizations of the record and their suggestions for additional findings.

Judge Smith again found that Auer had not proven (d)(9). Addressing the specific factors we discussed in our earlier opinion, Judge Smith found that Auer had engaged in only the single episode of cunnilingus before he was discovered by H.F.’s mother. He also noted that a couple of weeks earlier, Auer had exposed his penis to H.F. when Auer was comparing the size of his penis to her brother’s. He found that Auer ultimately admitted his behavior when confronted by the police and did cooperate by confessing. Even so, Judge Smith found that the significance of his admission and cooperation was limited because Auer claimed that the victim came on to him and that he gave in to her flirting. Judge Smith also found that his remorse was “attenuated” because of Auer’s claim that H.F. was partly responsible for the episode.

Judge Smith found that the circumstances of Auer’s case were distinguishable from those in McKinney. McKinney entirely assumed the blame for his abuse of his daughter.[fn5] McKinney had support from the other members of the family and had started sex offender treatment before sentencing.[fn6] As part of accepting the blame for his misconduct, McKinney reported the case to the police.[fn7] The judge who sentenced McKinney found that he had strong rehabilitation potential.[fn8] Considering all those circumstances, the sentencing judge in McKinney’s case concluded that the facts established a non-statutory mitigating factor of exemplary post-disclosure conduct.[fn9]

Judge Smith did not find support for this non-statutory mitigator in Auer’s case. He found that Auer attempted to deflect some blame onto the victim. He found that Auer did not undertake any exceptional efforts to assume responsibility or assist the victim.

Judge Smith’s findings are supported by the record. These findings support the conclusion that Auer’s offense was not among the least serious within the definition of the offense. Thus, we agree with the superior court’s conclusion that Auer did not meet his burden to show mitigator (d)(9). Judge Smith’s findings also support his decision not to refer the case to the three-judge panel.

Conclusion

We AFFIRM Auer’s sentence.

[fn1] AS 11.41.434(a)(1).

[fn2] See Auer v. State, Alaska App. Memorandum Opinion and Judgment No. 5068 (April 12, 2006), 2006 WL 964755.

[fn3] See Michael v. State, 115 P.3d 517, 519 (Alaska 2005).

[fn4] 946 P.2d 456 (Alaska App. 1997).

[fn5] 946 P.2d at 457.

[fn6] Id.

[fn7] Id.

[fn8] Id. at 457-58.

[fn9] Id.