Opinion
Court of Appeals No. A-9466.
October 25, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court No. 4FA-04-3437 CR.
William A. Spiers, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Jenel M. Domke, Assistant District Attorney, Jeffrey O'Bryant, District Attorney, Fairbanks, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Shaun J. Meyer appeals the 7-year term imposed by Superior Court Judge Charles R. Pengilly for his conviction on one count of possession of child pornography. Meyer contends that his sentence is excessive. He also argues that Judge Pengilly improperly relied on one of the two statutory aggravating factors that Meyer conceded. He also claims that Judge Pengilly improperly imposed an aggravated term without giving sufficient weight to the statutory mitigating factor that he found. We reject Meyer's claims and affirm the sentence imposed.
AS 11.61.127(a).
Facts and proceedings
Shortly after Meyer was released from prison in Oregon to parole supervision on felony convictions for second-degree encouraging child sexual abuse, he fled to Alaska because he thought he would not be extradited from Alaska to Oregon. Meyer was arrested for second-degree failure to register as a sex offender. After Meyer was terminated from his employment, his employer examined his computer at work and discovered an image of child pornography. Investigation by the troopers showed that Meyer downloaded the image onto his work computer; the image was of a naked female less than ten years old with her genitals visible.
AS 11.56.840(a).
The grand jury indicted Meyer for possession of child pornography. Meyer pleaded no contest to the charge. At sentencing, Meyer conceded that he faced a 6-year presumptive term and a maximum 10-year term under the pre-2005 version of AS 12.55.125(i)(4)(D) that applied to his offense. The 6-year presumptive term and the 10-year maximum applied because Meyer had qualifying sexual felony convictions in Oregon. In addition to his sexual felony convictions, Meyer had two Oregon felony convictions for first-degree theft.
At sentencing, Meyer also conceded the applicability of two statutory aggravating factors proposed by the State from AS 12.55.155(c): (c)(15) (Meyer had three or more prior felony convictions) and (c)(20) (Meyer was on parole or probation for a felony conviction when he committed the present offense). Judge Pengilly found the statutory mitigating factor proposed by Meyer: (d)(9) (Meyer's conduct was among the least serious within the definition of the offense).
Judge Pengilly found that Meyer was not a worst offender so he rejected the State's request that he impose the maximum sentence. Judge Pengilly considered the Chaney sentencing criteria. He found that Meyer's prior record was significant and that he had unfavorable rehabilitative prospects. He said that Meyer was unamenable to probationary supervision. Community condemnation was "at the highest level," as was the need to deter others from engaging in this behavior. Judge Pengilly also considered the factors of Meyer's isolation and individual deterrence.
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
After considering these sentencing factors, Judge Pengilly concluded that a sentence exceeding the 6-year presumptive term was appropriate and imposed a 7-year term.
Discussion
First, we address Meyer's argument that Judge Pengilly violated AS 12.55.155(e) when he considered Meyer's prior sexual felony convictions for two purposes: first, for the purpose of qualifying Meyer for the 6-year presumptive term, and second, for the purpose of supporting the (c)(15) aggravator.
There are two circumstances in which AS 12.55.155(e) bars the use of an aggravating factor to increase a presumptive term under the pre-2005 sentencing code. The first is when the aggravating factor "is a necessary element of the . . . offense" for which the defendant is being sentenced. The second is when the presence of the aggravating factor "requires the imposition of a presumptive term under AS 12.55.125(c)(2)"; that circumstance does not apply to Meyer's case.
In the pre-2005 sentencing code, the legislature established a three-level sentencing matrix for felony offenders with zero, one, or two qualifying prior felony convictions. For offenders who, like Meyer, have more than two qualifying felony convictions, the legislature created aggravator (c)(15). If the State proved aggravator (c)(15), the sentencing judge then had the authority to increase the presumptive term above the level set by the legislature for an offender with only two qualifying prior felony convictions. In this case, Meyer's two prior sexual felonies qualified him for the presumptive 6-year term. The fact that Meyer had two other prior felony convictions in addition to the two prior sexual felony convictions established aggravator (c)(15). We reject Meyer's argument that aggravator (c)(15) is a necessary element of his current charge.
See former AS 12.55.125(i)(4).
See former AS 12.55.155(a).
Meyer next argues that Judge Pengilly's findings did not properly explain his consideration of the mitigating factor. When a sentencing judge considers whether to adjust a presumptive term in light of aggravating and mitigating factors, the judge exercises sentencing discretion by considering the Chaney sentencing factors now codified in AS 12.55.005. Our discussion above shows that Judge Pengilly addressed each of the Chaney sentencing factors after finding the aggravators and the mitigator. This is exactly the process that is called for by our case law. We reject Meyer's claim that Judge Pengilly's findings are inadequate to justify a departure from the presumptive term.
See Juneby v. State, 641 P.2d 823, 835 n. 21, 838 (Alaska App. 1982) (holding that the amount of sentence adjustment for aggravating and mitigating factors should be assessed in light of the Chaney criteria), modified and superseded on other grounds, 665 P.2d 30 (Alaska App. 1983).
Next, Meyer contends that his sentence violates the "principle of parsimony," the principle that the sentence imposed should not be more severe than necessary to accomplish the objectives of sentencing codified in AS 12.55.005. But this principle does not alter the normal standards for sentence review. We continue to apply the "clearly mistaken" standard when a defendant claims a sentence is excessive.
See Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985).
State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000).
We now address Meyer's claim that his sentence was excessive. Judge Pengilly sentenced Meyer for his fifth felony conviction. Two of Meyer's previous felonies also involved sexual exploitation of minors, and they involved multiple counts. Meyer fled from parole supervision in Oregon to Alaska because he thought he would not be extradited. Once here, he engaged in conduct in violation of parole conditions that prohibited his access to a computer or an internet account. From our review of the sentencing record, we conclude that Judge Pengilly was not clearly mistaken when he increased Meyer's 6-year presumptive term by a single year.
Conclusion
Meyer's sentence is AFFIRMED.