Opinion
Court of Appeals No. A-9768.
February 13, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Trial Court No. 3KN-96-1771 Cr.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scot H. Leaders, Assistant District Attorney, and 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 October 1996, Timothy L. Hatten pulled a knife on a state trooper during an investigative stop. For this conduct, Hatten was convicted of third-degree assault under AS 11.41.220(a)(1)(A) — recklessly placing another person in fear of imminent serious physical injury by means of dangerous instrument. Hatten now appeals the sentence that he received for this crime.
(Although Hatten was found guilty of this assault in March 1997, his sentencing — originally scheduled for June 1997 — was delayed by almost nine years because Hatten absconded while on pre-sentencing bail release. He was taken into custody again in February 2005, following his arrest for a number of new crimes, and he was sentenced for the current assault on March 20, 2006.)
Hatten had one prior felony conviction. Because third-degree assault is a class C felony, and because Hatten was a second felony offender, Hatten faced a 2-year presumptive term of imprisonment for this assault under the pre-2005 version of Alaska's presumptive sentencing law.
AS 11.41.220(d).
Former AS 12.55.125(e)(1) (pre-March 2005 version).
Hatten was 40 years old at the time of his sentencing, and 31 years oldwhen he committed the assault in this case. He had been in trouble with the law since he was a young teenager.
As a juvenile, Hatten was charged with assault and battery, and later with malicious mischief. Both of these charges were informally adjusted. The following year, Hatten was adjudicated a delinquent minor for first-degree burglary (breaking into a neighbor's house and stealing approximately $2000 worth of jewelry).
Four years later, now an adult, Hatten was convicted of second-degree theft. He received a 3-½ year suspended imposition of sentence for this offense. Just over three months after his commission of this felony, while he was on bail release, Hatten drove while intoxicated on the Sterling Highway and struck another vehicle head-on. He was subsequently convicted of driving while intoxicated.
Three months after his sentencing for this DWI, Hatten drove without a valid operator's license.
Several months later, the State petitioned the superior court to revoke Hatten's felony theft probation based on Hatten's commission of the DWI, plus Hatten's repeated failure to report to his probation officer. While the felony probation revocation proceedings were pending, Hatten committed a second DWI. In July 1986, the superior court revoked Hatten's probation and sentenced him to 4 years' imprisonment with 21 months suspended ( i.e., 27 months to serve).
Hatten served this term of imprisonment and was released on probation. In August 1988, he committed a misdemeanor assault.
In May 1989, based on Hatten's assault conviction, as well as his failure to report to his probation officer his act of leaving the region of his residence without permission, his act of driving with a revoked operator's license, and his failure to appear for trial call in the assault case, the superior court revoked Hatten's felony probation and sentenced him to serve the remaining 21 months of his sentence.
Hatten served this additional imprisonment and was released. In October 1991, he committed his third DWI (as well as another act of driving without a valid operator's license). While these charges were pending, Hatten failed to appear for court, and a warrant was issued for his arrest. In June 1992, back in court, Hatten was sentenced to 180 days in jail with 120 days suspended.
In September 1993, Hatten committed another misdemeanor assault. He was given a completely suspended sentence (90 days), but he was placed on probation for five years and ordered to complete an anger management course. One year later, the State petitioned the court to revoke Hatten's probation after he failed to contact the agency that was in charge of monitoring the progress of his anger management treatment.
In October 1996, Hatten committed the felony assault that is at issue in the present appeal. While that felony assault charge was pending (and Hatten was on bail release), he was arrested for committing a misdemeanor assault upon his sister.
Based on Hatten's prior criminal history (his adult convictions and his delinquency adjudications), Superior Court Judge Harold M. Brown found that the State had proved three aggravating factors under AS 12.55.155(c): (c)(8) — that Hatten had a history of repeated instances of assaultive conduct; (c)(19) — that Hatten had been adjudicated a delinquent minor for conduct that would have constituted a felony if Hatten had been an adult; and (c)(21) — that Hatten had a history of crimes similar to the one for which he was being sentenced ( i.e., the third-degree assault).
Hatten proposed one mitigating factor under AS 12.55.155(d): (d)(9) — that Hatten's conduct was among the least serious within the definition of his offense. Judge Brown concluded that Hatten had failed to prove this mitigator.
Because aggravating factors were proved, Judge Brown was authorized to impose any sentence up to the 5-year maximum for third-degree assault.
See AS 12.55.125(e) (pre-March 2005 3 version) (setting 5 years as the maximum term of imprisonment for class C felonies), and AS 12.55.155(a) (pre-March 2005 version) (authorizing a sentencing judge to impose any term of imprisonment up to the statutory maximum upon proof of aggravating factors).
In his sentencing remarks, Judge Brown declared that he did not believe that Hatten's assault on the trooper was among the most serious third-degree assaults. Nevertheless, based on Hatten's extensive criminal record, the judge found that Hatten's prospects for rehabilitation were poor, and that Hatten had a serious substance abuse problem. For these reasons, Judge Brown concluded that Hatten's sentence should emphasize community condemnation of Hatten's criminal conduct, as well as the need to confine Hatten to protect the community from further criminal conduct.
Based on these concerns, Judge Brown sentenced Hatten to 4 years' imprisonment with 1½ years suspended — i.e., 2½ years to serve. The judge ordered Hatten to spend 5 years on probation after serving this sentence.
As a special condition of probation, Judge Brown ordered Hatten to obtain a substance abuse evaluation from an approved treatment provider within 30 days of his sentencing — and, if the evaluator recommended substance abuse treatment, Hatten was directed to complete the treatment program.
Judge Brown additionally ordered that the substance abuse treatment program could include up to 1 year of in-patient (residential) treatment — but the judge declared that "[he did] not mean [by this order] to allow the State to hold [Hatten] any longer than his sentence would [otherwise] permit." In other words, the judge declared that if Hatten ended up spending time in residential treatment, this would be credited against his sentence of imprisonment.
(From this, we conclude that Judge Brown did not intend to require Hatten to participate in residential treatment unless the Department of Corrections authorized Hatten's release from prison on parole, or on electronic monitoring, or some other form of non-custodial restraint. For if Hatten served his entire 2½ years of imprisonment and was then forced to undertake residential treatment, this would run contrary to the judge's statement that he did not intend his order "to allow the State to hold [Hatten] any longer than his sentence would [otherwise] permit".)
On appeal, Hatten challenges Judge Brown's decision to suspend a portion of the sentence and order Hatten to be evaluated for substance abuse treatment. Hatten argues that he should have received a "flat-time" sentence — i.e., a sentence consisting wholly of time to serve. According to Hatten, Judge Brown had no reasoned basis for suspending a portion of the sentence and putting Hatten on probation — because the judge had no basis for concluding that Hatten might have a substance abuse problem.
But both Hatten's criminal history and the pre-sentence report in this case support Judge Brown's decision.
As explained above, Hatten has several convictions for driving under the influence. Moreover, the author of the pre-sentence report notes that Hatten's criminal history "reflects alcohol and substance abuse[, which] is probably a contributing factor in his assaultive behavior".
According to the pre-sentence report, Hatten's former girlfriend reported that "he had needle tracks on his arms" and that "[h]is substance abuse has made him look really old". In addition (as related in the pre-sentence report), while Hatten was serving his sentence of imprisonment for felony theft in early 1987, he was offered discretionary parole — but on the condition that he obtain substance abuse treatment. Hatten refused parole because of this condition.
Based on this information, as well as Hatten's history of offenses, the author of the pre-sentence report concluded that Hatten "has had a substance abuse problem since at least 1985" ( i.e., since the age of 20), and that Hatten "probably needs long-term substance abuse treatment".
We note that Judge Brown did not affirmatively find that Hatten needed substance abuse treatment, nor did the judge unconditionally order Hatten to participate in substance abuse treatment. Rather, Judge Brown directed Hatten to obtain an evaluation from an approved treatment provider — and to engage in treatment if the evaluator recommended it.
The record supports Judge Brown's findings and his approach to this issue. We therefore uphold his decision.
Hatten also challenges Judge Brown's rejection of his proposed mitigating factor, AS 12.55.155(d)(9) — i.e., conduct among the least serious within the definition of the offense. To explain our assessment of Judge Brown's ruling, we must describe the circumstances of Hatten's offense.
On the evening of October 11, 1996, the Soldotna police received a report of suspicious activity at an apartment building. According to the report, a strange vehicle ( i.e., a vehicle that apparently was not owned by any of the residents) had pulled into the parking lot. A man had gotten out of this vehicle, had walked behind the building, and then, a few minutes later, had re-appeared carrying a pink bag.
Trooper Larry Erickson responded to this call. As Erickson approached the apartment building, he saw a man dressed all in black, and carrying a pink plastic bag, standing on the street corner. Erickson made contact with this man (later identified as Hatten). Hatten was nervous and "fidgety". When Erickson asked for Hatten's identification, Hatten replied that he did not have any.
Erickson asked Hatten if he was carrying any weapons. Hatten replied that he had no weapons, but Erickson told Hatten that he was going to pat him down to make sure. As Erickson began to pat Hatten's waist, Hatten turned his body away from the trooper and started to reach inside his jacket.
Anticipating that Hatten might be reaching for a weapon, Erickson pushed Hatten away and drew his sidearm. As Erickson did this, Hatten turned back to face Erickson. Hatten now had a large knife in his right hand; he glared at Erickson and held the knife in a threatening manner. Erickson (who was now aiming his sidearm at Hatten) ordered Hatten to drop the knife, and Hatten did so.
Erickson then arrested Hatten. While Erickson was handcuffing Hatten, the trooper asked Hatten why he had pulled the knife on him. Contrary to Hatten's earlier claim that he had no identification, Hatten now stated that he had been reaching into his jacket for his identification — and that the knife "just happened to be there". Hatten further claimed that he had forgotten that he was carrying the knife.
In the superior court, Hatten argued that his conduct was among the least serious within the definition of third-degree assault because, even though Hatten drew a knife on Erickson, "[t]here was no suggestion that . . . Hatten took any step toward [the trooper]". Hatten also noted that, at the time he drew the knife, Erickson had already drawn his sidearm — thus readying himself to meet any assault. Finally, Hatten noted that when Erickson ordered him to drop the knife, he complied immediately.
When Judge Brown explained his ruling on Hatten's proposed mitigator, the judge stated that everyone now agreed that Hatten lied to Erickson when he claimed not to be carrying a weapon. Additionally, Judge Brown noted that, according to the jury's verdict, Hatten acted at least recklessly concerning the possibility that his conduct with the knife would place Erickson in reasonable fear of imminent serious injury.
It is true, as Hatten asserts, that he did not advance on Erickson after he pulled the knife, and that he dropped the knife when the trooper ordered him to do so. However, we are obliged to view the facts of the case in the light most favorable to Judge Brown's ruling.
See Steve v. State, 875 P.2d 110, 125 (Alaska A 4 pp. 1994) (when an appellate court reviews a sentencing judge's ruling on a mitigating factor, the appellate court is to view the evidence in the light most favorable to the sentencing judge's ruling); Harmon v. State, 11 P.3d 393, 395-96 (Alaska App. 2000) (same rule applies to appellate review of a sentencing judge's ruling on an aggravating factor).
Viewing the facts of the encounter in that light, Hatten turned away from Erickson so that the trooper would not observe Hatten's movement as he drew his knife. And because Hatten turned away, it is reasonable to infer that Hatten did not know — at least, until he turned again to face the trooper — that the trooper was aiming a handgun at him. Hatten's discovery of this fact would explain why Hatten decided not to advance on the trooper, and why Hatten decided to drop the knife when Erickson ordered him to do so.
In other words, Judge Brown could reasonably conclude that Hatten desisted from the assault only after he realized that Erickson was both prepared to defend himself and better armed.
In Michael v. State, 115 P.3d 517, 519 (Alaska 2005), the supreme court held that, after the facts of a case are established, the decision as to whether those facts establish that the defendant's conduct was among the least serious within the definition of the offense — i.e., whether those facts prove mitigator (d)(9) — is a question of law, subject to de novo review by an appellate court. Given Judge Brown's explicit findings of fact, and viewing the remaining facts of Hatten's case in the light most favorable to Judge Brown's ruling, we conclude that Hatten failed to establish mitigator (d)(9).
The sentencing decision of the superior court is AFFIRMED.