Opinion
Court of Appeals No. A-11089 No. 6224
08-12-2015
PAUL NICOLI JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, 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 authority for any proposition of law. Trial Court No. 3DI-11-047 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, John W. Wolfe, Judge. Appearances: Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Paul Nicoli Jr. was convicted of second-degree assault for striking his girlfriend's daughter in the head with a mason jar. He now appeals that conviction on two bases.
First, Nicoli argues that the superior court committed error when the court denied his defense attorney's pre-trial motion to withdraw from the case, after the defense attorney asserted that there had been a breakdown in the attorney-client relationship.
Second, Nicoli argues that the prosecutor improperly cross-examined him regarding the content of his pre-arrest interview with the police, and that the prosecutor later improperly referred to this pre-arrest interview during closing arguments. Specifically, Nicoli contends that it was plain error for the prosecutor to ask Nicoli about, and later to comment on, the fact that Nicoli failed to tell the police his exculpatory version of events (the claim of self-defense that Nicoli offered at trial) when the police interviewed him shortly after the occurrence.
For the reasons explained in this opinion, we conclude that these claims of error have no merit.
Nicoli also argues that his sentence — 10 years' imprisonment with 5 years suspended — is excessive. Given the facts of this case and Nicoli's prior record, we conclude that this sentence is not clearly mistaken.
Underlying facts pertaining to the assault
Paul Nicoli Jr. lived in Dillingham with his girlfriend, Agnes Giardano, and her daughter, Jessie Heyano. On the night of January 31, 2011, Nicoli and Giardano, plus Heyano and her friend, Ali Roehl, were gathered in the kitchen. Nicoli was on crutches because, earlier that week, he had had surgery performed on his ankle.
Nicoli and Heyano began arguing about the extent of Nicoli's drinking, and Heyano told Nicoli she did not want Nicoli drinking in her house. There was conflicting testimony about what happened next: although Heyano testified that she did not touch Nicoli until later (after he assaulted her), both Roehl and Nicoli testified that Heyano began pushing Nicoli as if to force him out of the house.
The argument between Nicoli and Heyano continued for about twenty minutes. Then, according to Heyano and Roehl's testimony, Nicoli struck Heyano in the head with a mason jar that he had been using as a cup. In response, Heyano tried to push Nicoli out the door. According to Heyano, Nicoli reacted by swinging one of his crutches at her and threatening her.
Nicoli eventually left the house. Heyano and Roehl went to a friend's apartment building and called the police. Officer David Ewald responded to this call.
Officer Ewald contacted Heyano and Roehl at the apartment complex. After taking their statements, Ewald told Heyano that he would obtain an arrest warrant for Nicoli the next day, and then he left.
After Ewald left, a friend drove Heyano and Roehl to the hospital. When they arrived, Heyano and Roehl saw that Nicoli was already outside the hospital's emergency room. Because they were scared of Nicoli, Heyano and Roehl did not go into the emergency room, and they again called the police.
Ewald and another officer responded to this second call by going to the hospital to question Nicoli. Based on Nicoli's answers during this interview, as well as the statements previously given by Heyano and Roehl, Ewald arrested Nicoli.
After the police were on the scene, Heyano and Roehl went into the emergency room. Heyano told the doctor that she had been struck with a mason jar, and she received stitches for a laceration on the side of her head.
Based on the foregoing, the State charged Nicoli with assault in the second degree.
AS 11.41.210(a)(1).
At trial, Nicoli defended by asserting that Heyano was the aggressor, and that Heyano had inflicted the head wound on herself in order to frame him. More specifically, Nicoli testified that Heyano did not like the fact that he and her mother were together, and Nicoli asserted that Heyano had assaulted him earlier that same week, after Heyano overheard him fighting with her mother on the telephone.
According to Nicoli's testimony, Heyano confronted him about his drinking and then she became violent, stomping on his injured leg. Nicoli stated that he did not hit Heyano with the mason jar; rather, he threw the mason jar at the wall behind Heyano to distract her, so that he could escape from the kitchen into another room. While he was in this other room, Nicoli heard Roehl ask Heyano what she was doing. Heyano responded by saying, "Don't worry; I got this." — followed by the sound of glass smashing.
The jury rejected this defense and convicted Nicoli of second-degree assault.
Underlying facts pertaining to the defense counsel's motion to withdraw
Just before the jury selection in Nicoli's trial began, and before the jury entered the courtroom, the trial judge asked the prosecutor and the defense attorney if there were any remaining issues to resolve. The parties discussed some outstanding discovery and evidentiary motions, and then the defense attorney apprised the judge that Nicoli wished to address the court personally.
Nicoli told the judge that he had heard rumors that his defense attorney and the prosecutor (both of them women) were engaged in a romantic relationship, and he asked the judge whether that was a problem. Here is the pertinent exchange:
Nicoli: I've heard this many times. And people are telling me that the public defender and the prosecutor are intimately involved.
Prosecutor: What?
Nicoli: Is that a problem?
. . .
Defense Attorney: Your Honor, if I might. This is the second time ... that Mr. Nicoli has made such an allegation [in public], and I told him at the time [that] I found this strongly offensive — that he would be talking about ... things that are malicious and damaging ...
Nicoli: I'm ...
Defense Attorney: ... to my reputation, both professionally and personally.
. . .
Nicoli: I'm only asking a question.
Defense Attorney: At this point, I'd like the Court to consider [my] application ... to withdraw as his [legal] representative.
Nicoli: I'm only asking a question. ... Because it, it's been told to me many times.
At this juncture, the judge told Nicoli he should not "pay too much attention to rumors", and the judge assured Nicoli that his defense attorney was "a vigorous advocate" who had won jury trials for her clients. But Nicoli would not let this matter drop.
Nicoli never actually asserted that the prosecutor and defense attorney were romantically involved. Instead, he repeated that he was "only asking a question", and that he wanted this question "cleared up". In response, the judge told Nicoli that the answer to his question "[had] been provided".
But at this point, Nicoli's attorney told the judge that she wanted a formal ruling on her motion to withdraw. When the judge asked the defense attorney to articulate her precise reason for seeking to withdraw on the morning of trial, the defense attorney replied that, in light of Nicoli's statements about the purported intimate relationship between her and the prosecutor, there had been "such a breakdown" in the attorney-client relationship "that it would be impossible for me to represent him." This led to the following colloquy and ruling:
The Court: Now, ... are you saying that you don't think you could vigorously assert ... [?]After the judge made this ruling, he asked the attorneys if they were ready to begin jury selection, and the trial proceeded without further inquiry into this matter.
Defense Attorney: I think that what this shows is that — and along with other abusive language and statements that Mr. Nicoli has exhibited to me in the presence of others — that I think that there's absolutely no trust on his part in my representation. And I think that severely limits my ability to represent him.
The Court: ... I'm going to deny the motion at this time. I'm quite certain that [the defense attorney] is a professional ... with a great deal of experience. You've probably encountered difficult situations before, and I'm ... quite certain that you will assert all of Mr. Nicoli's rights and vigorously defend him at trial.
Nicoli's argument on appeal, and why we uphold the judge's decision
Nicoli argues that the superior court violated his right to the effective assistance of counsel when the court denied the defense attorney's motion to withdraw. Nicoli points out that the defense attorney expressly told the court that her attorney-client relationship with Nicoli was damaged to the point where it was "impossible for [her] to represent him." Under these circumstances, Nicoli contends, the superior court was required to defer to the defense attorney's assessment of the situation — and to therefore grant the attorney's motion to withdraw.
It is true that the defense attorney told the judge that it would be "impossible" for her to represent Nicoli, given Nicoli's repeated insinuations of a romantic relationship between her and the prosecutor. But when the judge asked the defense attorney whether she was truly saying that she could no longer vigorously defend Nicoli's interests, the defense attorney clarified her earlier statement. She did not assert that her own personal feelings would prevent her from effectively representing Nicoli. Rather, she asserted that Nicoli's personal feelings — his distrust and antagonism toward her — were the impediment to the attorney-client relationship:
Defense Attorney: [Based on the] abusive language and statements that Mr. Nicoli has exhibited to me in the presence of others[,] I think that there's absolutely no trust on his part in my representation. And I think that severely limits my ability to represent him.(Emphasis added.)
Given the defense attorney's response to the judge's question, we conclude that Nicoli's case is governed by the line of cases dealing with situations where an indigent defendant takes action to impede the attorney-client relationship because the defendant is dissatisfied with, or distrustful of, their appointed attorney.
The general rule is that "personal difficulties or animosity between a defense attorney and a defendant will constitute a reason for removing the defense attorney if the attorney-client relationship has deteriorated to the point where the attorney is incapable of effective communication with the defendant or the attorney is incapable of objective decision-making about the case." Douglas v. State, 166 P.3d 61, 88-89 (Alaska App. 2007). But indigent defendants who have received court-appointed counsel are not entitled to counsel of their choice, nor to a "meaningful relationship with their attorney." Sergie v. State, 105 P.3d 1150, 1157 (Alaska App. 2005). An indigent defendant is not allowed to "frustrate [their] attorney's efforts" and then claim an abridgement of the right to effective representation "[based on their] own lack of cooperation." Coleman v. State, 621 P.2d 869, 881 (Alaska 1980).
Here, Nicoli asked about rumors he claimed to have heard concerning a romantic relationship between his attorney and the prosecutor. The judge told him that there was nothing to these rumors. Nicoli does not dispute the truth of the judge's statement, nor does he argue on appeal that the judge should have conducted further inquiry to determine the truth or falsity of these purported rumors.
The remaining issue is whether Nicoli's very act of asking this question in a public forum caused his attorney to have such a strong emotional reaction that she was no longer capable of effective communication with her client, or no longer capable of objective decision-making about his case. When the judge asked the defense attorney whether she was, in fact, asserting that these things were true, the attorney replied that the problem was a different one — that the problem was Nicoli's distrust of her.
Given this record, Nicoli is essentially arguing on appeal that the superior court should have removed his court-appointed attorney on the morning of trial, not because of any true conflict of interest, but rather because Nicoli indicated he was not totally convinced that a false rumor about his attorney was, indeed, false.
Under these circumstances, we uphold the trial judge's decision to deny the attorney's motion to withdraw.
Underlying facts pertaining to the prosecutor's inquiry during cross-examination, and the prosecutor's later comments during closing argument, concerning the fact that Nicoli failed to inform the police of his exculpatory version of events
As we explained earlier in this opinion, Officer Ewald and a second police officer interviewed Nicoli at the hospital soon after Heyano reported the assault. According to Ewald, this interview lasted "at least a good five minutes".
At trial, the prosecutor asked Ewald to describe what Nicoli said during this interview. In response, Ewald testified:
Ewald: First, he wouldn't really tell me anything. He was kind of evasive when I'd ask a question. ... He'd hesitate ... when he didn't want to give me an answer. ... And he wouldn't let me pin him down right away. And he never denied ... being [at the house]. He just wouldn't — he kept giving me excuses, or like whys, that kind of thing.When the prosecutor asked Ewald to provide specific examples of the excuses that Nicoli offered, Ewald said that he could not remember them. On redirect, the prosecutor again asked Ewald to clarify what, specifically, Nicoli told him at the hospital. Again, Ewald was unable to say "exactly what [Nicoli] said"; Ewald could only summarize the conversation by saying that he "couldn't get an answer" from Nicoli.
Later, during the defense case, Nicoli took the stand and offered an exculpatory version of events.
Specifically, Nicoli testified that he had reason to be afraid of Heyano because she had previously assaulted him (after hearing him arguing with her mother on the telephone). Nicoli testified that, in this prior assault, Heyano barged into his room and pushed him down, even though he was still recovering from ankle surgery. Nicoli also testified that he called the police twice following this earlier assault, but the police did not respond.
Nicoli testified that Heyano was again the aggressor on the night in question (January 31, 2011). According to Nicoli, Heyano yelled at him about his drinking, and then she became violent — stomping on his injured leg and pushing him. Nicoli stated that Heyano normally carried a knife, and that he became afraid that she was about to seriously injure him, so he threw a mason jar at the wall in order to distract Heyano and get away.
Later, after Heyano left, Nicoli became concerned that Heyano might have re-injured his leg, so he went to the hospital to have his leg examined. This examination was performed, and Nicoli was still at the hospital when Officer Ewald and the other officer arrived. According to Nicoli, essentially the first words out of Ewald's mouth were, "We're here to arrest you."
When the prosecutor cross-examined Nicoli about his exculpatory version of events, she asked Nicoli about the interview at the hospital.
The prosecutor began by challenging Nicoli's assertion that the first thing Ewald said to him was, "We're here to arrest you." While the prosecutor was questioning Nicoli on this point, Nicoli volunteered that he failed to tell the officers about any altercation between himself and Heyano, or to say that Heyano was the one who assaulted him during this altercation:
Prosecutor: When [the two officers] first walked up to you, they didn't say, "We're here to arrest you."
Nicoli: Well, I — they ...
Prosecutor: Did they?
Nicoli: I said, "Am I being arrested?" They said "Yes".
Prosecutor: They [first] asked you what happened, didn't they?
Nicoli: I said — I didn't tell them I was assaulted. That — it didn't matter ...
Prosecutor: Something as important as that, you didn't tell the police [who] were standing right there that night?
Nicoli: Well, if they were going to — if they were going to arrest me, then my saying that wouldn't have [any] effect on what they were doing.
Prosecutor: You're telling this jury that you have been trying to get the police to listen to you about what's been going on between you and Jessie Heyano, isn't that correct?
Nicoli: At one [earlier] point, I tried. Yes.
Prosecutor: And that night, when the police walked up to you, you didn't tell them this story that you're telling the jury today, did you?
Nicoli: It wouldn't have mattered, because they were already going to arrest me.
. . .
Prosecutor: [Officer Ewald] gave you numerous chances to tell him what had happened between you and [Heyano], before he got to the point where he told you [that] you were going to be arrested.
Nicoli: I'm sure that opportunity was there. But it wouldn't have mattered. They already had it in their heads that they were going to arrest me.
A little later in the prosecutor's cross-examination, the prosecutor asked Nicoli if he told the emergency room doctor that the reason he wanted to have his leg examined in the middle of the night was that someone had assaulted him by stomping on that leg. Nicoli conceded that he had not mentioned this to the doctor. Nicoli explained that he "didn't tell the doctor that [he] was assaulted because it wouldn't have made any difference to him."
At the end of Nicoli's trial, when the prosecutor delivered her summation, she argued that Nicoli's exculpatory trial testimony was inconsistent with his failure to mention that he had been assaulted when he spoke to the doctor and to the police officers at the hospital shortly after the occurrence:
Prosecutor: [T]he defendant today [described] how he was assaulted and [how] he was the victim. But he didn't tell it to [the doctor who saw him at the hospital], and he didn't tell it to the police when he had his opportunity. He didn't tell anybody until ... today, because he doesn't want to be convicted.And toward the end of her summation, the prosecutor argued that Nicoli's testimony was less credible than the testimony given by Heyano and Roehl, in part because Nicoli did not tell anyone about his exculpatory version of events until he took the stand at trial.
Nicoli's defense attorney did not object to these aspects of the prosecutor's cross-examination of Nicoli, nor to these facets of the prosecutor's closing argument. But on appeal, Nicoli argues that it was plain error for the trial judge to allow the prosecutor to engage in this cross-examination and to present this final argument.
Nicoli's argument on appeal, and why we conclude that there was no plain error
Nicoli concedes that his challenge to the prosecutor's cross-examination and his challenge to the prosecutor's closing argument were not preserved for appeal, and thus both of these claims are governed by the doctrine of plain error. Among other things, a party claiming plain error must demonstrate that error did in fact occur, and that this error was obvious. Nicoli fails to satisfy these elements.
We note first that the evidentiary record fails to establish that the prosecutor commented on Nicoli's post-arrest silence. Officer Ewald (whose testimony is not challenged on appeal) stated that he did not decide to arrest Nicoli until the end of the interview — after several minutes of questioning, during which time Nicoli was evasive and failed to provide any substantive answers to the officer's questions.
It is true that when Nicoli described this interview during his trial testimony, Nicoli initially said that Ewald opened the interview by announcing that he had come to arrest Nicoli. But when the prosecutor confronted Nicoli with the possibility that the interview was taped, Nicoli backed away from this assertion.
Nicoli's first retreat was to concede that Ewald did not open the interview with the declaration that he was under arrest. Rather, Nicoli said that he asked Ewald whether he was being arrested, and Ewald said yes. Then, when the prosecutor pressed this point, Nicoli conceded that this question and answer did not occur at the beginning of the interview. Rather, this question and answer occurred after Ewald gave Nicoli "numerous chances to tell him what had happened". Nicoli acknowledged that he was "sure that [the] opportunity [to explain his version of events] was there" — although Nicoli continued to insist that the officers "already had it in their heads that they were going to arrest [him]."
Because Nicoli made no objection to the prosecutor's cross-examination on this point, the trial judge made no finding as to whether Ewald's announcement that Nicoli was under arrest came at the beginning or at the end of the hospital interview. But if anything, the current evidentiary record indicates that Nicoli was not arrested until the end of the interview. Because the record does not plainly demonstrate that the prosecutor questioned Nicoli about Nicoli's silence after he was arrested, any plain error claim of an improper comment on Nicoli's post-arrest silence fails.
This leaves Nicoli's claim that the prosecutor improperly cross-examined him about, and later improperly commented on, Nicoli's pre-arrest silence during the hospital interview. But on this issue, the record does not plainly demonstrate that Nicoli in fact remained silent during this interview.
Officer Ewald's description of the hospital interview does not suggest that Nicoli ever stopped talking, or that Nicoli failed to verbally respond to the officer's questions. Rather, Ewald generally asserted that Nicoli uttered many words in response to his questions, but that Nicoli was evasive in his answers and appeared to be purposely trying not to say anything of substance.
Evasive answers are not the same as silence. As our supreme court recognized in Sidney v. State, if a suspect voluntarily speaks to the police, "[o]missions and inconsistencies in [the suspect's] exculpatory statement [can] properly be pointed out at trial." 571 P.2d 261, 264 (Alaska 1977).
Nicoli's case is arguably different from the facts of Sidney, in that Nicoli did not offer an overtly exculpatory story to the police. Instead, according to Officer Ewald, Nicoli verbally sparred with the officers for several minutes, purposely trying to evade their inquiries.
In other words, Nicoli's case presents a situation that lies between the two poles of (1) a suspect who declares, or at least implicitly conveys, that they do not wish to respond to police questions (see Adams v. State, 261 P.3d 758 (Alaska 2011)), and (2) a suspect who (as in Sidney) offers the police apparently full answers to their questions. The rule is clear at either pole: in the first instance, a prosecutor is not allowed to comment on the defendant's decision to remain silent; while in the second instance, a prosecutor is allowed to comment on the fact the defendant failed to mention important things, or gave an inconsistent account.
Because Nicoli's case lies between these two poles, the governing rule is not obvious. But there are two important facets of Nicoli's case that lead us to conclude that the prosecutor's questions were proper.
We first note that Nicoli's case differs from our previous pre-arrest silence cases because it was Nicoli who opened up this topic during his testimony at his trial.
During direct examination, Nicoli asserted that the police officers walked up to him at the hospital and immediately announced that he was under arrest. When the prosecutor cross-examined Nicoli on this point, she did not ask Nicoli whether he had remained silent or had otherwise declined to respond to the officers' questions. Rather, the prosecutor took issue with Nicoli's assertion that the police began the interview by announcing that they had come to arrest him. In response to the prosecutor's questions about the timing of the officer's announcement, it was Nicoli who volunteered that he failed to tell the officers about his exculpatory version of events because "it didn't matter":
Prosecutor: When [the two officers] first walked up to you, they didn't say, "We're here to arrest you."
Nicoli: Well, I — they ...
Prosecutor: Did they?
Nicoli: I said, "Am I being arrested?" They said "Yes".
Prosecutor: They [first] asked you what happened, didn't they?
Nicoli: I said — I didn't tell them I was assaulted. That — it didn't matter ...
At that point, the prosecutor changed course and began to question Nicoli about this assertion that he thought "it didn't matter" whether he told the officers his exculpatory version of events. It was during this latter segment of the cross-examination that Nicoli conceded that the officers did not immediately announce that he was under arrest at the beginning of the hospital interview — that the officers in fact gave him the opportunity to explain what had happened that night.
This aspect of Nicoli's case — the fact that Nicoli initiated the inquiry into whether he honestly believed that it was pointless to tell the police his exculpatory version of events — serves to distinguish Nicoli's case from previous cases where we (or the Alaska Supreme Court) concluded that it was improper for a prosecutor to initiate this type of inquiry.
The question of whether a jury should be allowed to hear evidence of a defendant's pre-arrest silence hinges on whether the probative value of the defendant's silence is outweighed by the substantial potential for unfair prejudice that this evidence typically presents. Adams v. State, 261 P.3d 758, 766-67 (Alaska 2011); Silvernail v. State, 1169, 1174-79 (Alaska App. 1989).
Here, Nicoli initiated this topic — and he openly sought to convince the jury that his failure to explain himself earlier was the direct result of the fact that the police prematurely made up their minds that he was guilty. Given this record, a trial judge could reasonably conclude that Nicoli's case presented a situation where the probative value of the evidence of pre-arrest silence was atypically great — and that this enhanced probative value outweighed the normal potential for unfair prejudice.
For these reasons, we conclude that Nicoli has failed to show that the challenged cross-examination and the challenged portions of the prosecutor's closing argument constituted plain error.
Nicoli's attack on his sentence
Nicoli's final claim is that his composite sentence — 10 years' imprisonment with 5 years suspended — is excessive.
As a first felony offender convicted of second-degree assault, Nicoli faced a presumptive sentencing range of 1 to 3 years' imprisonment. However, based on Nicoli's many prior convictions for misdemeanor assault, the superior court ruled that Nicoli's case involved two aggravating factors under AS 12.55.155(c) — (c)(8) (a criminal history involving repeated instances of assaultive behavior) and (c)(31) (a criminal history that includes five or more convictions for class A misdemeanors). These aggravators authorized the court to impose any sentence up to the 10-year maximum for second-degree assault.
AS 11.41.210(b); AS 12.55.125(d)(1).
See AS 12.55.155(a)(1). --------
The sentencing judge found that Nicoli's assault upon Heyano was serious because of its potential for serious injury, and also because Nicoli was apparently intoxicated at the time. The judge also found that Nicoli's criminal history was "egregious" because it included 30 prior convictions — eight of them for assault. And the court noted that the assault in the present case was a domestic violence assault.
Evaluating Nicoli's case under the sentencing criteria codified in AS 12.55.005, the judge placed primary emphasis on isolating Nicoli to prevent further criminal behavior, based on Nicoli's lack of remorse and his history of assault. The sentencing judge also concluded, based on the involvement of alcohol, that rehabilitation was concurrently an important sentencing goal. For these reasons, the judge imposed a sentence of 10 years but suspended half of it.
Nicoli argues that this sentence is excessive because it lies outside the applicable presumptive range. He acknowledges the presence of aggravating factors, but he argues that the judge placed insufficient emphasis on the sentencing goal of rehabilitation, and that the judge should have imposed less time to serve, coupled with a lengthy term of probation. Nicoli notes that he was a relatively young offender and that this was his first felony offense — meaning that he had never before had the benefit of structured probation. Nicoli also points out that, before this case, he had not had an assault conviction since 2001. And Nicoli argues that the assault in this case was the result of an emotionally heated encounter.
These factors are all valid considerations, but as this Court explained in Erickson v. State, sentencing review in Alaska is premised on the reality that different sentencing judges can reasonably view the same case in different ways. 950 P.2d 580, 586 (Alaska App. 1997). It is up to the individual judge to evaluate the statutory sentencing goals and determine which of them should be emphasized under the particular facts of a defendant's case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
Here, given Nicoli's history of assaults and alcohol-related crimes, the sentencing judge could reasonably decide that the sentencing goal of isolation should receive primary emphasis, and that a sentence above the applicable presumptive range was warranted. As the judge explained, the purpose of suspending half of this sentence (5 years) was to foster Nicoli's rehabilitation through a period of probation supervision that carried a credible deterrent threat of further incarceration.
Given Nicoli's conduct in the present case and his lengthy history of criminal offenses, we conclude that the superior court's sentencing decision is not clearly mistaken. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Conclusion
The judgement of the superior court is AFFIRMED.