Opinion
A-13430
09-15-2021
DELBERT VINCENT BITONTI, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Prince of Wales, M. Jude Pate, Judge. Trial Court No. 1PW-17-00170 CR
Appearances:
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Delbert Vincent Bitonti was convicted of first-degree assault, first-degree burglary, and coercion after he brutally assaulted Albert Macasaet Jr. while another person recorded it on a cell phone. The court found multiple statutory aggravators, including that Bitonti's conduct was among the most serious within the offense of first- degree assault. The superior court also found that Bitonti was a worst offender. Bitonti received a composite sentence of 26 years with 6 suspended, or 20 years to serve.
AS 11.41.200(a)(1), AS 11.46.300(a)(1), and AS 11.41.530(a)(1), respectively.
AS 12.55.155(c)(10).
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
Bitonti now challenges his sentence on two grounds. First, he argues that the superior court erred in finding the most serious conduct aggravator. According to Bitonti, the court found this aggravator only because Bitonti's assault "happen[ed] to have been filmed." Bitonti argues that this Court should not "sanction a system where, all other aspects being similar, offenders whose offenses are captured on video are sanctioned more severely than [other] offenders."
Bitonti misinterprets the superior court's sentencing remarks. It is true that the court stated that it could not have found the most serious conduct aggravator without the video. However, this was because the victim was not available to testify, and the video therefore provided the primary evidence of the brutality of Bitonti's assault. The court did not find, as Bitonti claims on appeal, that Bitonti's conduct was among the most serious simply because the assault was video recorded.
Instead, the court based its finding of the most serious aggravator on the contents of the video, which depicts a brutal and sustained assault lasting more than two and a half minutes. The victim was barely conscious for most of the assault, but Bitonti continued to punch him, strangle him, and kick him in the head. The victim suffered a concussion, a broken rib, and multiple contusions and abrasions, as well as memory loss and mental impairment, which the court found might be permanent. Having independently viewed the video, we find no error in the court's finding of the most serious conduct aggravator.
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that an appellate court reviews de novo a trial court's application of a statutory aggravator to a given set of facts).
Bitonti also argues that the court erred in finding that he is a worst offender. "A worst-offender finding may be based on the facts and circumstances surrounding the offense, the defendant's criminal history, or both." Here, the superior court relied on both the nature of the offense and Bitonti's criminal history. As we have already described, Bitonti's conduct placed his crime among the most serious for first-degree assault. The superior court also detailed Bitonti's extensive criminal history, which included multiple assaults, one of which the court described as "strikingly similar" to the one at issue in this case. And the court noted that Bitonti had consistently failed to take advantage of the rehabilitative opportunities offered to him through probation. Having reviewed Bitonti's conduct and his criminal history, we conclude that the superior court's finding of worst offender is well supported by the record.
Howell v. State, 115 P.3d 587, 593 (Alaska App. 2005).
See Wortham, 537 P.2d at 1120-21.
The judgment of the superior court is AFFIRMED.