Opinion
Court of Appeals No. A-12326 No. 6423
01-11-2017
DOBOUL THARJIATH DENG, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: James Ferguson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Clinton M. Campion, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 3AN-12-2802 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: James Ferguson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Clinton M. Campion, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Doboul Tharjiath Deng pleaded guilty, pursuant to a plea agreement, to attempted first-degree sexual abuse of a minor. According to a stipulation of facts submitted at sentencing, Deng sexually assaulted fourteen-year-old J.C., who was visiting Deng's daughter at his residence. Deng called J.C. into his bedroom, grabbed her by the arm, and pushed her to the floor. He rubbed J.C.'s breasts and then forcibly removed her underwear while covering her mouth with his hand. Deng penetrated J.C.'s vagina with his fingers and then attempted to have sexual intercourse with her. He abruptly stopped the assault, allowing J.C. to pull up her pants and leave the room.
AS 11.41.434(a) & AS 11.31.100.
For his attempted first-degree sexual abuse of a minor conviction, Deng faced a presumptive range of 15 to 30 years' imprisonment. The judge was also required to impose a minimum of 3 years' suspended time, and a minimum of 10 years' probation.
AS 12.55.125(i)(2)(A)(ii).
AS 12.55.125(o).
The State recommended a term of 25 years with 5 suspended (20 years to serve). The State noted that Deng had four prior domestic violence assaults, including one against his minor daughter. The State also focused on the fact that Deng's conduct in each of these prior incidents — as well as his conduct in the present case — was fueled by alcohol abuse. The State thus asked the court to prioritize the Chaney criteria of isolation, general deterrence, and reaffirmation of societal norms.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
Deng's attorney requested a sentence of 18 years with 3 suspended (15 years to serve). At sentencing, Deng's attorney noted that Deng had completed a variety of programs through the Department of Corrections, including substance abuse therapy, since his arrest. The attorney also pointed out that Deng had voluntarily taken the STATIC-2002R sexual offender assessment and had scored as having a low-moderate risk of reoffending. The attorney thus argued that a sentence at the low end of the presumptive range "would address the seriousness of the offense while also recognizing the rehabilitative achievements that [Deng had] accomplished presentence."
In his sentencing remarks, Superior Court Judge Michael L. Wolverton noted that Deng had made some strides toward rehabilitation. But the judge concluded that a sentence with a significant period of suspended time would best serve the sentencing goals of rehabilitation and individual deterrence by ensuring Deng's continued participation in treatment once he was released. The judge thus imposed a sentence of 25 years with 10 suspended (15 to serve), and 10 years' probation.
On appeal, Deng does not challenge the active imprisonment portion of his sentence. But he argues that the suspended portion of his sentence is excessive. We review sentence appeals under the "clearly mistaken" standard of review, a deferential standard that "implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify."
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
"In determining whether [a] sentence is excessive, we must consider the sentence in its entirety, including all suspended time." But we have previously explained that "it would be unrealistic to consider suspended time as the equivalent of time to be served in prison." Moreover, a suspended sentence serves a different purpose from an unsuspended term: it "serve[s] as a deterrent in the event that [the defendant's] efforts toward rehabilitation prove[] unsuccessful."
Jimmy v. State, 689 P.2d 504, 505 (Alaska App. 1984).
Id. at 505 (citing Karr v. State, 686 P.2d 1192, 1194 (Alaska 1984)).
Heavyrunner v. State, 172 P.3d 819, 821 (Alaska App. 2007).
Here, given Deng's post-arrest efforts toward rehabilitation, the judge found that an unsuspended term at the bottom end of the presumptive range — 15 years to serve — would fulfill the Chaney criteria of isolation and community condemnation. But the judge concluded that a significant suspended term was necessary to serve as an individual deterrent against Deng reoffending, and to ensure his continued rehabilitation while on probation.
We acknowledge that a different judge might have imposed a different sentence with less suspended time. But we conclude that the sentence imposed in Deng's case is still within the permissible range of sentences that a reasonable judge would impose under these circumstances and is therefore not clearly mistaken.
McClain, 519 P.2d at 813. --------
We accordingly AFFIRM the judgment of the superior court.