Opinion
Court of Appeals No. A-9907.
July 30, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-97-265 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In 1997, Byron G. Gordon armed himself with a handgun and went to collect a drug debt from a man named Charles Leuret. When Gordon arrived at Leuret's house, one of Leuret's friends walked outside to retrieve something from his car. Gordon pointed his gun at the friend's head and told him to leave. Then Gordon went into Leuret's house and, almost immediately, Gordon's handgun went off, wounding Leuret in the chest.
For this conduct, Gordon was convicted of first-degree assault and third-degree assault. Initially, he received a composite sentence of 7 years to serve with an additional 13 years suspended.
AS 11.41.200(a)(1) and AS 11.41.220(a)(1)(A), respectively.
(Specifically, Gordon's first-degree assault sentence was 15 years' imprisonment with 8 years suspended, and his third-degree assault sentence was a consecutive 5 years' imprisonment, all suspended.)
As explained in more detail below, Gordon's probation for these crimes has been revoked four times. The last time, the superior court imposed all of Gordon's remaining suspended imprisonment. Gordon has therefore received a composite sentence of 20 years to serve for his two felonies.
Gordon appeals this sentence, contending that it is excessive. For the reasons explained in this opinion, we conclude that Gordon's sentence is not clearly mistaken, and we therefore affirm the superior court's decision.
Gordon's criminal history before these two felonies
At the time of these crimes, Gordon was nineteen years old. By his own admission, he was making his living by selling cocaine.
Gordon had been in repeated trouble with the law for the preceding six years. In October 1990, just days before his thirteenth birthday, Gordon committed first-degree burglary. The juvenile officials informally adjusted this offense. Five months later, in March 1991, Gordon was brought to the juvenile authorities again, this time for harassment: he and two other boys threatened to rape two elementary school girls. This offense was informally adjusted.
In May 1991, Gordon committed reckless endangerment: he shot a rifle at a stop sign and nearly struck two children. Again, this offense was informally adjusted.
In June 1992, Gordon ran away from home. He was apprehended six days later and placed at the Kenai Care Center. Six hours later, he ran away from the Care Center. On July 12th, he was again placed at the Care Center. He ran away again on July 28th.
In early August 1992, Gordon and two other boys vandalized a cabin. Later that month, Gordon was picked up by the authorities and (after a short stay at McLaughlin Youth Center) he was placed again at the Care Center.
During his time at the Kenai Care Center, Gordon had a total of twenty-one infractions of the rules; these included tampering with the alarms, acts of violence, and leaving without permission.
In March 1993, the superior court entered an institutionalization order against Gordon, and he was committed to the McLaughlin Youth Center. Nine months later, in December, Gordon escaped from custody while attending an off-center Alcoholics Anonymous meeting. He was apprehended two days later and returned to McLaughlin.
In August 1994, Gordon was released from McLaughlin and allowed to return to his family home.
In November 1994, Gordon stole a handgun from his father. This offense was informally adjusted. In April 1995, Gordon opened and used other people's private mail. This offense was also informally adjusted. That same month, the superior court terminated Gordon's juvenile probation.
In May 1996, Gordon committed his first offenses as an adult: he and a friend broke into a series of vehicles by smashing their windows with rocks, and then stealing stereos from the vehicles. For this conduct, Gordon was convicted of third-degree theft and third-degree criminal mischief, and he received 3 days in jail.
In June 1996, Gordon committed fourth-degree assault upon his wife, by chasing her and threatening to break her neck. He was sentenced to a fine of $250, 24 hours of work service, and a "male awareness" program.
In August 1996, Gordon got drunk and decided to climb up on a front loader that he saw while walking down the road. Gordon accidentally started the machine and was trying to shut if off when the police arrived. Gordon tried to run from the police, but he was apprehended. For this conduct, Gordon was convicted of driving while intoxicated and eluding a police officer. Again, he was sentenced to serve 3 days in jail.
In September 1996, Gordon started to break into an apartment but was soon thwarted by the residents. When the police arrived in response to the report of a burglary in progress, they spotted Gordon. Gordon ran away, but the police found him and tackled him. Gordon continued to resist, even after he was handcuffed. For this conduct, Gordon was convicted of criminal trespass, resisting arrest, and escape. He received 50 days in jail for the trespass, 20 days for resisting arrest, and 10 days for escape.
Six months later, in March 1997, Gordon committed the first- and third-degree assaults that are the underlying offenses in the present case.
Gordon's history on probation from these two felonies
In November 2001, Gordon was released from prison on concurrent parole and probation. Just three months later, in February 2002, Gordon was arrested for fourth-degree assault, resisting arrest, and providing false information to the police. It required three officers to subdue Gordon, and all three officers sustained injury. The superior court revoked Gordon's probation — but, because the Parole Board had also revoked Gordon's parole (thus sending him back to prison), the superior court did not impose any of Gordon's suspended jail time.
In early 2003, following Gordon's renewed release from prison, he committed a series of probation violations. In September 2003, the superior court revoked Gordon's probation and sentenced him to serve 1 year of the previously suspended jail time. (The Parole Board also revoked Gordon's good time credit, thus extending his imprisonment.)
In February 2005, Gordon was released from prison once more. Within months, he had committed a series of probation violations, and a third petition to revoke his probation was filed toward the end of June. Eight days later, the Parole Board revoked Gordon's parole and sent him back to prison.
Gordon remained in prison, with the third petition to revoke his probation still pending. The following summer, Gordon's attorney reached a plea agreement with the State to resolve the probation revocation litigation: Gordon would admit the allegations in the petition, he would be provisionally sentenced to time served, and then he would be released to the in-patient treatment program at the Salvation Army's Clitheroe Center. The State promised to take no further action on the petition if Gordon successfully completed the treatment at Clitheroe, but Gordon faced renewed sentencing — open sentencing — on the probation revocation if he did not successfully complete Clitheroe.
Gordon was released from prison on August 17, 2006. Four weeks later, on September 13th, Gordon absconded from the Clitheroe Center. This led to the present petition to revoke Gordon's probation. Our analysis of the superior court's sentencing decision
When Gordon appeared before Superior Court Judge Charles T. Huguelet for his most recent sentencing, the judge summarized his view of Gordon's case as follows:
The Court: [Gordon's] history . . . begins [in] October of 1990 as a juvenile [charged with] burglary in the first degree. [That charge was informally] adjusted. [In March] 1991, . . . harassment — adjusted. May 1991, reckless endangerment — firing a .22 rifle at a stop sign across the road — adjusted. August 1992, theft in the third degree — dismissed. August 1992, criminal mischief . . ., starting a fire, apparently. 1994, misconduct involving weapons — adjusted. A month later, [a] petition to revoke probation, . . . — dismissed. April 1995, opening and using private mail — adjusted.
Then, as an adult, May 1996, theft in the third degree [and criminal mischief] — three days in jail and probation. . . . June 1996, assault in the fourth degree, domestic violence. June 1996, DWI. August 1996, driving while license suspended [and] DWI and eluding. September 1996, escape [and] resisting arrest [and] criminal trespass. March 1997, assault in the first degree and assault in the third degree.
Then, after prison, within three months, a probation violation, which included resisting arrest and a false report. [Another] release from jail, and then in September 2003, 12 months imposed for another probation violation, which I think involved eluding. June 2005, resisting arrest and [another] probation violation. And then, attached to the pre-sentence report, are just a surprising number of incident reports [detailing misbehavior] when incarcerated.
Substance abuse doesn't explain this all. I don't know what explains it — [an] unbroken refusal to comply with the most basic of societal norms and laws. . . . And, looking at the record, there have been multiple, multiple, multiple chances to reform, to change, to do something different[.] [A]ll have been rejected.
I don't think I've ever seen a worse failure of probation than this case. Just constant violations from the very beginning — and beginning with a very serious offense. And I share the [pre-sentence investigator's] frustration that nothing that has been tried works. And the [defense attorney's proposed] idea of [Gordon] going to another treatment program — that's not an option at this point. [He has] failed at probation — absolutely failed, totally and completely failed. The only Chaney [sentencing] criteria left [are] deterrence, isolation, and re-affirmation of societal norms. . . .
I think [that] extraordinary conditions are present that would warrant giving active jail time [above normal limits for these] violations of probation. . . . So I'm going to revoke probation . . . and impose [the remaining] 9 years.
As Gordon points out in his brief to this Court, he has now received a composite 20 years to serve for his two felonies. (This is the maximum term that Gordon could have received for his more serious offense, first-degree assault.) However, as shown by the sentencing remarks we have just quoted, Judge Huguelet essentially concluded that Gordon's prospects for rehabilitation are virtually nil, and that Gordon must be isolated from the community to ensure the public safety.
See AS 11.41.200(b) (first-degree assault is a class A felony) and former AS 12.-55.125(c) (1997 version) (establishing a 20-year maximum term of imprisonment for class A felonies).
Having independently reviewed the record, we cannot say that Gordon's sentence is clearly mistaken. Accordingly, the sentencing decision of the superior court is AFFIRMED.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).