Ahvik v. State , 613 P.2d 1252 ( 1980 )

OPINION

BOOCHEVER, Justice.

Herbert Ahvik appeals his sentence for forcibly raping his 15-year-old niece in violation of AS 11.15.120(a).¹

The rape occurred during the afternoon of July 21, 1978, in Barrow, Alaska. The defendant walked unannounced into a house belonging to his half-sister, Mary. He woke up Mary’s daughter, C., and asked her if she wanted to get “stoned.” C. refused, and Ahvik then told her he was going to rape her. Ahvik himself had been either drinking or smoking marijuana. He pulled her hair, slapped her several times, and ordered her to take off her pants. was frightened and did as she was told. Ahvik raped her. When he was done he said he was sorry, but told her he would beat her up if she told anyone.

Ahvik is an Eskimo laborer with a seventh-grade education. He has difficulty speaking English. At the time of the crime he was eighteen and unemployed. Ahvik was abandoned by his mother, and his father died when he was fourteen. Both parents were alcoholics. He was raised by various relatives, including a sister in Anak-tuvuk Pass and his grandparents. The probation officer’s report indicates that he had some problems as a minor in need of supervision, but that there is no record of prior offenses. He has had some involvement with alcohol and drugs. He has never been married or in the military.

Dr. Harold Smith, a psychiatrist, interviewed Ahvik and concluded that he appeared “uneducated, untrained, [and] unso-cialized.” He stated:

Generally speaking, I feel that his prognosis might be somewhat better than the average man his age convicted of a similar offense, if only for the reason that the average offender would be more likely to have had the advantages of a less deprived background, a more normal upbringing, opportunities for social learning, education, etc.

We have emphasized in our prior decisions that rape is among the most serious felonies. It amounts to “a desecration of the victim’s person which is a vital part of her sanctity and dignity as a human being.” Newsom v. State, 533 P.2d 904, 911 (Alaska 1975).² Nevertheless, while conceding the seriousness of the crime, we conclude that under the circumstances the trial court’s imposition of a five-year sentence was excessive and failed to adequately consider the goal of rehabilitation of the offender.

This is not a case in which an offender has assaulted an unknown victim.³ While we in no way condone Ahvik’s conduct, it was not of the brutal type likely to result in severe psychological or physical aftereffects, and, in fact, the victim has not shown such results from the rape.

With regard to rehabilitation, the trial court said only that “it may be a little early to tell in your case . . . whether or not you are going to rehabilitate yourself into a successful member of society.” We have reversed or remanded several cases in which the trial court did not adequately consider the possibility that an offender might be rehabilitated.⁴

Ahvik is a youthful offender with no prior criminal record. He comes from a disadvantaged background with a history of alcoholism. He apparently accepts responsibility for his crime and seems presently to be making efforts to improve himself by, among other things, attempting to complete a high school equivalency program. The psychiatrist’s report indicates that Ahvik’s prognosis for rehabilitation is good. As one commentator has noted, “The possibility of significant character and behavioral changes in young adults from ages 18 to 25 is a recognized phenomenon.”⁵

We do not believe Ahvik should be placed with hardened criminals, as this is likely to reinforce any criminal tendencies he may already have. We believe that the sentence should include a recommendation that Ahvik be placed in a facility such as the Palmer Correctional Center, where there is an emphasis on rehabilitation programs. The classification requirements issued by the Alaska Department of Health and Social Services, Division of Corrections, for placement in the Palmer facility specify: “Due to the uniqueness of the facility, prisoners must be within three years of their mandatory release date.”⁶ Our conclusion is that Ahvik should not receive a sentence of more than five years with two suspended.

This case is accordingly REMANDED for resentencing.

BURKE, J., joined by MATTHEWS, J., dissents.

1 . At the time of the offense, AS 11.15.120(a) provided:

Rape, (a) A person who (1) has carnal knowledge of another person, forcibly and against the will of the other person, or (2) being 16 years of age or older, carnally knows and abuses a person under 16 years of age, is guilty of rape.

2 . See Holden v. State, 602 P.2d 452, 459 (Alaska 1979); State v. Wassilie, 578 P.2d 971, 973-74 (Alaska 1978); Bordewick v. State, 569 P.2d 184, 186 (Alaska 1977).

3 . In fact, the victim’s family apparently does not bear any ill will toward Ahvik, and the victim’s mother has indicated that Ahvik would be allowed to visit her home,

4 . Husted v. State, 608 P.2d 298 (Alaska 1980); Padie v. State, 594 P.2d 50 (Alaska 1979); Andrews v. State, 552 P.2d 150 (Alaska 1976); Christian v. State, 513 P.2d 664 (Alaska 1973); Mattern v. State, 500 P.2d 228 (Alaska 1972).

5 . Erwin, Five Years of Sentence Review in Alaska, 5 U.C.L.A.-Alaska L.Rev. 1, 18 (1975).

6 . Alaska Department of Health & Social Services, Division of Corrections, Classification Requirements for SCC/Palmer Population, Section # 410, page 3.