# Michael v. State > Alaska Supreme Court · June 9, 2005 · 115 P.3d 517 URL: https://www.frixlaw.com/law-library/cases/9785901 ## Case - **Full name:** Peter R. MICHAEL, Petitioner, v. STATE of Alaska, Respondent - **Court:** Alaska Supreme Court - **Decided:** June 9, 2005 - **Citations:** 115 P.3d 517; 2005 Alas. LEXIS 78; 2005 WL 1369030 - **Precedential status:** Published - **Opinion:** Concurrence by Bryner - **Judges:** Fabe, Bryner, Matthews, Eastaugh, Fare, Carpeneti - **Cited by:** 28 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Pocock v. State, 2012 Alas. App. LEXIS 31 (2012). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785901 ## How later opinions describe it (automated extraction) - holding that when an appellate court reviews a sentencing judge’s ruling on a proposed mitigating factor, the appellate court applies the deferential “clearly erroneous” standard of review when evaluating the sentencing judge’s findings of historical fact, but the appellate co… - concluding that "[aluy factual findings made by the court regarding the nature of the defendant's conduct are reviewed for clear error, but whether those facts establish that the conduct [qualifies as an aggravating or mitigating factor under the terms of a sentencing statute]… - holding that it is a question of law-i.e., a question to be decided by an appellate court without deference to the sentencing judge-whether given facts establish the miti-gator of conduct "among the least serious" - holding that the correct standard of review for the application of statutory aggravating and mitigating factors is de novo review - holding that it is a question of law whether given facts establish a statutory mitigating factor ## Opinion text BRYNER, Chief Justice, concurring; MATTHEWS, Justice, joins only in paragraphs 1 and 2 of the concurrence. 1. I join in the portion of the court’s order holding that the de novo standard of review applies in determining whether the “least-serious-conduct” statutory mitigating factor has been established under the undisputed facts of this case and with the portion of the order directing Michael’s release pending the proceedings on remand. 2. Although prudence might ordinarily favor allowing the court of appeals to apply the de novo standard to the facts of this case in the first instance, given the lengthy procedural history of this case it does not seem appropriate to invoke this prudential rule here. Having reviewed the record and available sentence appeal decisions involving similarly situated offenders, I am convinced that, by any realistic measure, Michael’s overall conduct ranks among the least serious within the class of defendants actually convicted of first-degree sexual assault. 1 Reviewing this particular set of facts de novo, I would thus hold that the statutory mitigating factor has been established as a matter of law. Accordingly, I would remand the case directly to the superior court for resentencing in light of this mitigating factor. 3. However, I would not independently conclude that Michael’s potential for rehabilitation amounts to an extraordinary circumstance warranting referral of his case to the three-judge panel. . The defendant in Benboe v. State, 698 P.2d 1230 (Alaska App.1985) received four years of unsuspended time for digitally penetrating a six-year old girl who was sleeping in the same house, causing slight physical injury. Although Michael's case may be distinguishable because of the presence of the "trust factor" between Michael and L.R. noted by the superior court, Michael’s term of imprisonment should not be double that of Benboe. I therefore conclude that Michael’s sentence should not exceed five years of unsuspended time. Cf. Armstrong, 2002 WL 31185806 (defendant given eight-year term with three years suspended for first degree sexual assault where defendant gave thirteen year-old friend of his daughter alcohol until she "passed out" and then had sexual intercourse with her). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785901. Public record. Not legal advice.