Opinion
Court of Appeals No. A-10399.
September 30, 2009.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Elaine Andrews, Judge, Trial Court No. 2KB-07-91 CR.
Brian T. Duffy, Assistant Public Advocate, and Rachel E. Levitt, Public Advocate, Anchorage, for the Appellant. John A. Earthman, District Attorney, Nome, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Charlie Bailey III appeals his composite sentence of 9 years' imprisonment with 4 years suspended, contending that the sentence was clearly mistaken. We conclude that the sentencing judge's decision was amply supported by a significant statutory aggravating factor and the aggravated circumstances of this offense. Background
On the morning of February 6, 2007, Noatak Village Police Officer Vincent Onalik took Jan Westlake to Charlie Bailey's residence. As the two approached, Bailey came out of a residence belonging to his father, which was located across the street. Charlie Bailey and Westlake began to wrestle in the yard. At first, Officer Onalik tried to separate the two. But then Bailey's father came out of his house with a rifle and told Onalik that he "better get out of here or [he] would kill [him]." Bailey then tackled Westlake and yelled at his father to "shoot him." Bailey's father again threatened to shoot Officer Onalik, so the officer retreated from the area.
Bailey's father fired a shot into the air. Bailey held Westlake on the ground, and Bailey's father stood over Westlake with the rifle. Bailey continued to urge his father to "shoot him, shoot him." At this point Westlake began to beg Bailey's father not to kill him. But Bailey's father fired the rifle, striking Westlake in the head. The shot was not fatal, and Westlake remained on the ground, pretending that he was dead. Bailey and his father then ran into the father's house, and when Westlake was sure they were gone, he ran to another residence for assistance.
Investigating troopers interviewed Janet Sherman, who saw parts of the incident from a nearby residence. Sherman had stepped outside to start her four-wheeler and saw Bailey and his father beating Westlake. She sought cover when she saw Bailey's father retrieve the rifle and then heard a gunshot. She called Officer Onalik, but he told her that he was already on the scene.
About an hour later, Bailey came into the residence where Sherman was visiting and said that his father had shot both Westlake and the village police officer. He told Sherman and the others present, "Don't say anything, or I am going to know who talked." Bailey also told Sherman that he would have his cousin hurt her if she reported what she had seen.
Bailey had committed a number of offenses involving alcohol and violence over the preceding ten years. In February 1998, he was convicted of assault in the fourth degree and importation of alcohol when he strangled and beat his girlfriend and sold two bottles of R R Whiskey. On the same date, he was also convicted of criminal trespass in the first degree and assault in the fourth degree for a separate incident. According to the presentence report, in October 1998 Bailey faced additional assault charges when he frightened his girlfriend and repeatedly bit a man in the chest.
In June 1999, Bailey was convicted of resisting or interfering with arrest when he fought with police officers who were responding to a report of a fight. At the time of this offense Bailey had a bottle of R R Whiskey in his possession in violation of conditions of release barring him from possessing or consuming alcohol. Then, in 2005, Bailey was convicted of driving under the influence of alcohol.
For the incident involving Westlake, Bailey was indicted for attempted murder in the first degree, solicitation to commit first-degree murder, assault in the first degree, and interference with official proceedings. He eventually entered into a plea bargain, in which he pleaded no contest to fourth-degree assault and interference with official proceedings, and the remaining charges were dismissed. Bailey also agreed to serve a 1-year sentence on the assault charge. Superior Court Judge Elaine Andrews imposed the agreed-to 1-year sentence for the assault, and a consecutive sentence of 8 years' imprisonment with 4 years suspended for the conviction of interference with official proceedings.
Bailey now appeals the sentence imposed on the interference charge. We review the composite sentence to determine whether it is clearly mistaken. Discussion
See Tipiken v. State, 65 P.3d 899, 902 (Alaska App. 2003).
Interference with official proceedings is a class B felony. The presumptive range for a first-felony offender convicted of a class B felony is 1 to 3 years' imprisonment. The presumptive range for a second-felony offender is 4 to 7 years' imprisonment.
AS 11.56.510(b).
AS 12.55.125(d)(1).
AS 12.55.125(d)(3).
Bailey was a first-felony offender for presumptive sentencing purposes. He admitted one aggravating factor — that he had a history of assaultive behavior — which allowed the sentencing judge to impose a sentence up to the maximum of 10 years' imprisonment for this offense. Bailey also gave notice of two mitigating factors, but he did not press the sentencing judge to make a ruling on these factors.
AS 12.55.155(c)(8).
AS 12.55.125(d); AS 12.55.155(a)(1).
In State v. Jackson, we established a series of benchmarks for class B felony offenders convicted of their first felony crime. In particular, we held that "A typical offender committing a typical or moderately aggravated offense should receive an unsuspended term of a year or more to serve. The upper limit in such cases should be 4 years. . . ." We also held, "For an offense that is exceptionally aggravated — one that involves the existence of significant statutorily specified aggravating factors or other extraordinarily aggravated circumstances — a term of up to six years of unsuspended incarceration, the presumptive term for a third offender, would be justified."
776 P.2d 320, 326 (Alaska App. 1989).
Id. (footnote omitted).
Id.
When Jackson was decided, there was no presumptive sentence for a class B first-felony offender. The sentence for a second-felony offender was 4 years. But, in March 2005, the legislature amended the sentencing statute so that a first felony offense would carry a presumptive range of 1 to 3 years' imprisonment, and a second felony offense would carry a presumptive range of 4 to 7 years.
See former AS 12.55.125(d) (1989).
See id.
Ch. 2, § 9, SLA 2005.
In view of the modification of the sentencing statute, one could argue that the Jackson benchmarks no longer have any relevance. (For example, it is now clear that a typical first offense will require a sentence within the presumptive 1-to 3-year range.) But the benchmarks still supply some guidance in a case like this one. We conclude that Bailey's sentence satisfies the Jackson benchmarks and that it is not excessive under the current statute because there is a significant aggravating factor based on the defendant's background and the aggravating circumstances surrounding this offense.
In the present case, Judge Andrews made findings on the various sentencing considerations that are relevant to the application of the Jackson framework. First of all, the judge recognized that this case involved the existence of a significant aggravating factor based on the defendant's prior record. The judge found that Bailey had been uncontrollably drinking for years. In one incident, he fought with officers who were trying to arrest him. Another time, he had whiskey in his possession in violation of his conditions of release. The judge also noted that Bailey had displayed some "really vicious assaultive conduct" that resulted in a domestic violence assault conviction. She concluded that Bailey had been previously humiliated in his community, but that this did not change his conduct in any way.
Judge Andrews also recognized that this case involved some extraordinarily aggravated circumstances. She concluded that Bailey had been drinking, that he had asked his father to shoot Jan Westlake, and that Bailey's father would not have shot Westlake except for Bailey's instigation. The judge also noted that although Bailey thought that his father had shot and possibly killed two people, he threatened a witness against reporting the incident.
We conclude that this case involves an offense that is exceptionally aggravated, one that involves the existence of a significant statutory aggravating factor and extraordinarily aggravated circumstances. Under the Jackson criteria, these considerations would justify a sentence of up to 6 years of unsuspended incarceration. Bailey's sentence of 8 years' imprisonment with 4 years suspended fits squarely within this guideline.
However, Bailey argues that the sentencing judge failed to consider a required statutory factor: the restoration of the community. He points to testimony at the sentencing hearing that he hunted for his parents and other elders in the village who could not provide for themselves, as well as to letters written on his behalf by the Noatak Elders Council and the Native Village of Noatak.
See AS 12.55.005(7).
But the record reflects that the judge seriously considered the community in her decision. She found that Bailey had a "terrible record as a young man and very little to recommend [himself] in terms of [his] contributions to the community." She recognized the favorable letters from community members, but found that Bailey had a "whole lifetime of making up to [his] family and [his] village." Ultimately, Judge Andrews concluded that Bailey needed to be deterred from further criminal activity and isolated from the community. Thus, the judge seriously considered Bailey's connection to the community and the impact of his crimes.
We do not reverse a sentencing judge's decision to adjust a sentence based on aggravating and mitigating factors unless we find that it is clearly mistaken. Judge Andrews could properly conclude that the facts of this case and the defendant's background required her to sentence him to a term of 8 years' imprisonment with 4 years suspended for the interference with official proceedings conviction, resulting in a composite sentence of 9 years' imprisonment with 4 years suspended.
See Clark v. State, 8 P.3d 1149, 1151 (Alaska App. 2000).
Conclusion
We conclude that Bailey's sentence was not clearly mistaken. We therefore AFFIRM the superior court's judgment and sentence.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).