# Michael v. State > Alaska Supreme Court · June 9, 2005 · 115 P.3d 517 URL: https://www.frixlaw.com/law-library/cases/9785902 ## 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 Matthews - **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/9785902 ## 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 MATTHEWS, Justice, with whom FABE, Justice, joins, concurring. I join in the court’s order but write separately because I believe that any sentence *522 that includes more than five years of unsus-pended time is excessive in this case. 1 This is true whether Michael’s conduct is among “the least serious conduct” for the offense as a matter of law or his case is referred to the three-judge panel because imposing the presumptive sentence without taking into account Michael’s rehabilitative potential would work a manifest injustice. . Apart from Benboe v. State, 698 P.2d 1230 (Alaska App.1985) (described briefly in Justice Matthews’s concurrence below) no sentencing decisions published by this court or the court of appeals appear to involve first-degree sexual assault convictions with facts analogous to those at issue here. But four unpublished decisions of the court of appeals involve generally similar facts and thus provide a useful framework for considering Michael's least-serious-conduct claim. See State v. Armstrong, 2002 WL 31185806 ; Harrison v. State, 2004 WL 1567749 ; Inga v. State, 2004 WL 719626 ; and Broeckel v. State, 1998 WL 10267 . The conduct in Michael's case seems mitigated in comparison to the conduct considered in all these cases; and, as today's order observes, Armstrong expressly affirmed a superior court finding that the defendant's conduct was among the least serious in its class. Since no other sentencing decisions appear to address first-degree sexual assault convictions involving less serious conduct, there seems to be no realistic basis for concluding that the overall facts of Michael’s case are not among the least serious of all cases where defendants are actually convicted and sentenced for first-degree sexual assault. Notably, although these decisions are unpublished and their legal analysis is therefore not particularly germane, the court of appeals has previously approved the use of its unpublished sentencing decisions as a source for establishing realistic sentencing guidelines and benchmarks. See Rudden v. State, 881 P.2d 328 , 332 n. 2 (Alaska App.1994). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785902. Public record. Not legal advice.