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Powell v. State4/9/2004
on't need to be telling the Parole Board that they cannot [release] this man on parole if they really believe that he has become rehabilitated.
Finally, Judge Souter stated that he believed Powell's sentences should be partially consecutive because, even though Powell's offenses arose from a single incident, "there were multiple victims [involved]".
*538 Judge Souter then sentenced Powell to the following terms of imprisonment: The judge imposed an 18-year sentence on each count of first-degree assault, and he made 6 of those years consecutive. In addition, Judge Souter imposed a consecutive 1-year sentence for Powell's reckless endangerment conviction--thus making a total of 25 years to serve. (Judge Souter also imposed 1 year's imprisonment for Powell's DWI conviction, but he made this concurrent to Powell's other sentences.)
After imposing these sentences, Judge Souter revoked Powell's probation from his 1997 felony assault conviction and imposed 1 year of Powell's previously suspended jail time. This probation revocation sentence was consecutive to Powell's sentences for his current offenses.
Thus, all told, Judge Souter sentenced Powell to serve 26 years in prison. Shortly after the judge imposed this sentence, the judge urged Powell to pursue rehabilitative treatment when he was released from prison. Powell answered with a sarcastic remark. Powell also complained openly about the fact that he would not be eligible for parole until he was in his fifties. This prompted Judge Souter to declare:
The Court: If you don't change your attitude and your behavior, it scares the hell out of me what you'll do to somebody out on the street. And that's why I've got to send you away, the way I'm doing. And if you think I enjoy doing this to a fellow human being, you're wrong. I don't. It doesn't make me feel any happier to have to do this, but I'm doing my duty.... It's what I've got to do for the sake of everybody.
Our analysis of the superior court's sentencing decision
As we noted earlier, Judge Souter did not expressly refer to the Neal-Mutschler rule when he sentenced Powell to a composite term of 26 years to serve--a term that exceeded the 20-year maximum sentence for Powell's most serious offense. However, an express finding is not always required. In Neal itself, the supreme court declared that no express finding was needed under the following circumstances:
The record contains ample evidence that [the defendant] presents a risk of continued criminal conduct which would seriously threaten the public safety. [The defendant] was twenty-nine years of age at the time of sentencing. He has been a heroin addict for ten years and has compiled a lengthy criminal record, including numerous felony and misdemeanor drug offenses and several property offenses. Extensive drug rehabilitation efforts have been a failure. With complete foresight [the defendant] helped to plan, organize, and carry out a highly dangerous and extremely serious crime [armed robbery of a bank]. It is clear that [the defendant] presents a threat of criminal conduct which would seriously threaten the public safety. Given his repeated rehabilitative failures and his conduct on this occasion, the threat is substantial.
Neal, 628 P.2d at 21. See also Waters v. State, 64 P.3d 169, 174-75 (Alaska App.2003), where we upheld a composite sentence that exceeded the maximum for the defendant's single most serious offense, even though the sentencing judge failed to make an express Neal-Mutschler finding, when the defendant "was a mature adult with a lengthy history of serious offenses and a seemingly intractable substance abuse problem".
Like the defendants in Neal and in Waters, Powell is a mature offender whose conduct over the preceding two decades has shown him to b
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