Opinion
Court of Appeals No. A-11131 Trial Court No. 4AK-08-63 CR No. 5915
02-06-2013
LYNN R. MAILLELLE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Robert E. Henderson, Assistant District Attorney, Anchorage, and Michael C. Geraghty, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Aniak, Jack Smith, Judge.
Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Robert E. Henderson, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
BOLGER, Judge.
Lynn Robert Maillelle was released on concurrent parole and probation after serving the sentence of imprisonment on his conviction of second-degree assault. About a month after his release, Maillelle violated a probation condition requiring that he not consume any alcohol. Superior Court Judge Jack Smith imposed a new probation condition requiring that Maillelle undergo a sex offender evaluation and imposed six months of Maillelle's suspended sentence consecutive to a sixteen-month sentence imposed by the parole board. Maillelle now appeals the six-month consecutive sentence and the new condition of probation. We conclude that this sentence is not excessive and that the new condition is related to Maillelle's rehabilitation and the protection of the public.
Background
B.D. contacted the Alaska State Troopers to report that she had been assaulted by Maillelle in a small village in western Alaska. B.D. reported that Maillelle strangled her until she could not breathe, told her to beg for her life, and then raped her.
Maillelle eventually pled guilty to second-degree assault, and the State dismissed the other charges related to this incident. At that time, Maillelle had a prior felony assault conviction and two prior misdemeanor convictions involving assaultive misconduct. Superior Court Judge Leonard Devaney III sentenced Maillelle to eight years' imprisonment with four years suspended. Maillelle's probation conditions included requirements that he abstain from alcohol and complete alcohol treatment.
Maillelle was released on concurrent parole and probation after he served his initial sentence of imprisonment. About a month later, a police officer found Maillelle, heavily intoxicated, on a bench outside a bank in Anchorage. The State petitioned the superior court to revoke Maillelle's probation, and the matter was assigned to Superior Court Judge Jack Smith.
Judge Smith concluded that Maillelle had violated the conditions of his felony probation. At the disposition hearing, a probation officer recommended that Maillelle complete a sex offender evaluation. The probation officer testified that the presentence report included the report from B.D. that she had been sexually assaulted. The probation officer noted that Maillelle had continued to drink alcohol despite his probation conditions, and opined that alcohol use could lower Maillelle's inhibitions to the extent that he might repeat his sexual misconduct. The probation officer recommended that Maillelle should undergo a risk assessment to determine whether he should participate in sex offender treatment.
Maillelle's attorney argued that this incident happened so soon after Maillelle's release that he had no time to get into an alcohol treatment program. She pointed out that the parole board had imposed fifteen months' imprisonment for the parole violations related to this incident, and that Maillelle could "very likely get [alcohol] treatment while in custody." The probation officer later noted that the parole board had actually imposed about sixteen months, and that Maillelle had served about six months at the time of the sentencing hearing.
Judge Smith recognized that Maillelle's conviction was based on an incident involving sexual assault. So the judge imposed the recommended condition that Maillelle undergo a sex offender evaluation. The judge also imposed six months of the suspended sentence consecutive to the time imposed by the parole board. Judge Smith concluded that alcohol treatment was an important component of the sentence, and stated that "hopefully" Maillelle would have enough time to get alcohol treatment while he was incarcerated.
Discussion
The disputed probation condition is sufficiently related to sentencing goals.
Probation conditions must be reasonably related to the probationer's rehabilitation or the protection of the public and not unduly restrictive of the probationer's liberty. If a probationer violates a condition of probation, the sentencing court has the authority "to make the conditions of probation more onerous, or to extend the period of probation, or to order the defendant to serve some or all of the previously suspended jail time."
See Allen v. Anchorage, 168 P.3d 890, 895 (Alaska App. 2007).
State v. Henry, 240 P.3d 846, 848 (Alaska App. 2010).
In a similar case, the defendant was convicted of burglary for stealing a woman's purse from the back room of a flower shop. The defendant had two previous convictions for breaking into women's houses for the purpose of sexual assault, so the sentencing judge imposed a probation condition that the defendant participate in sex offender treatment. This court affirmed, holding that the defendant's past sex offenses provided the superior court with a firm basis to conclude that sex offender treatment was related to his rehabilitation and to the protection of the public.
Miyasato v. State, 892 P.2d 200, 200 (Alaska App. 1995).
Id. at 201.
Id. at 202.
Likewise, Maillelle's new condition of probation is reasonably related to his rehabilitation and protection of the public. He was initially charged with a sexual assault, and the evidence of this sexual assault was included in the presentence report. The judge's decision to require Maillelle to obtain a sex offender evaluation was reasonably related to his rehabilitation and not unduly restrictive.
Maillelle argues that there has not been a "significant change in circumstances" justifying this modification of his probation. But Maillelle's conduct had shown that his original conditions of probation were inadequate. The probation officer testified that Maillelle posed a greater risk to the public when he drank alcohol. But the prohibition on alcohol had been ineffective: Maillelle was found intoxicated a month after his release. Under these circumstances, it was reasonable for the judge to require a sex offender evaluation to protect the public.
The sentence for the probation violation was not excessive.
Alaska Statute 33.20.040(c) provides in part: "A period of imprisonment resulting from the revocation of probation or mandatory parole may be imposed consecutively in the discretion of the court or the parole board." Maillelle argues that Judge Smith abused this discretion when he imposed six months of Maillelle's suspended sentence consecutive to the sixteen-month sentence imposed by the parole board for the same misconduct.
When a court revokes a defendant's probation and imposes a sentence, the sentencing court is required to apply the usual sentencing factors. The sentence must be based on the totality of the circumstances, including the original offense, the offender, and the offender's intervening conduct.
See DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).
Id.
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In this case, the sentencing judge had to impose an appropriate sentence for a second-felony offender who had a history of violent misbehavior. Maillelle had been on probation for only a month when he was found intoxicated in violation of his probation conditions. The judge's remarks indicate that he wanted Maillelle to take advantage of whatever alcohol treatment might exist while planning for a gradual return to community supervision. We conclude that the judge's decision to make Maillelle's six-month sentence for the probation violation consecutive to the sentence imposed by the parole board was not clearly mistaken.
Conclusion
We therefore AFFIRM the superior court's judgment and sentence.