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Banister v. State1/28/1998
MEMORANDUM OPINION AND JUDGMENT
In 1993, Douglas R. Banister was convicted of second-degree sexual abuse of a minor, AS 11.41.436(a)(2) - sexual contact with a child under the age of thirteen. The victim was Banister's nine-year-old stepdaughter.
Second-degree sexual abuse of a minor is a class B felony. AS 11.41.436(b). Nevertheless, the pre-sentence investigator recommended that Banister receive a sentence that emphasized treatment and rehabilitation, with only four months' incarceration. This recommendation, along with a favorable psychological evaluation, influenced Superior Court Judge Walter L. Carpeneti to impose a relatively lenient sentence. Judge Carpeneti sentenced Banister to 3 years' imprisonment with 2½ years suspended (6 months to serve), and he allowed Banister to serve a portion of this imprisonment on weekends so that Banister could keep his job.
One of the conditions of Banister's probation was that he participate in a sex offender treatment program as required by his probation officer. Another condition was that Banister "ave no contact with minor children without prior permission of his probation officer".
In September 1996, the State petitioned the superior court to revoke Banister's probation. The State alleged three violations of probation: that Banister had quit his employment without notifying his probation officer, that Banister had been arrested for driving while intoxicated, and that Banister had been terminated from sex offender treatment because he was found in possession of pornography. Banister admitted these allegations. At the Conclusion of the renewed sentencing hearing, Judge Carpeneti revoked Banister's probation and sentenced him to serve the 2½ years' imprisonment that had originally been suspended.
When a court determines that a defendant has violated the terms of probation, the court must then determine whether the violation(s) of probation justify revocation of the defendant's probation and imposition of all or part of the defendant's previously suspended sentence. Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988). Banister argues that, even though he may have violated his probation, Judge Carpeneti was nevertheless clearly mistaken when he sentenced Banister to serve the previously suspended 2½ years' imprisonment. We disagree.
Banister was a first felony offender convicted of a class B felony. Under State v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989), the benchmark sentencing range for a first felony offender convicted of a typical to moderately aggravated class B felony is 1 to 4 years' imprisonment. Even following the revocation of his probation, Banister's total sentence is 3 years' imprisonment, a sentence within this benchmark range.
Banister argues that Judge Carpeneti's decision to impose the remaining 2½ years of incarceration ignores the fact that Banister had spent a lengthy period of time on probation without incident, as well as the fact that Banister had been enrolled in sex offender therapy throughout this period. However, the facts of Banister's case adequately explain Judge Carpeneti's decision.
The specific allegations in the probation revocation petition only begin to explain why Judge Carpeneti sentenced Banister to serve the remaining 2½ years. The pre-sentence investigation revealed that, during the summer of 1996, Banister had been spying on a twelve-year-old girl who lived next door to him. The girl identified Banister as the man she had seen standing outside her window. At Banister's sentencing hearing, Judge Carpeneti found that Banister had indeed been the man peeping through the child's window. In addition, Banister admitted
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