Opinion
A-13858 7113
06-12-2024
KEVIN S. PATTERSON, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court Trial Court No. 3KN-10-00057 CR, Third Judicial District, Kenai, Jennifer K. Wells, Judge.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG Judge.
Pursuant to a plea agreement, Kevin S. Patterson agreed to plead guilty to seven counts of possession of child pornography and receive a sentence of 14 years with 5 years suspended. Patterson now challenges certain aspects of his sentence and judgment. Specifically, Patterson argues on appeal that the superior court erred by failing to merge the seven counts into one conviction and by sentencing him within the presumptive sentencing range for a second felony offender. For the reasons explained here, we reject Patterson's claims and affirm the judgment of the superior court.
Former AS 11.61.127 (2006-2009).
Procedural history
In 2011, Kevin S. Patterson was indicted on eight counts of possession of child pornography and two counts of distribution of child pornography for conduct occurring between 2006 and 2009. Each possession charge was based on a specific date and a specific storage device where pornographic images were found.
In 2013, Patterson entered into an agreement with the State to resolve his pending case. Pursuant to the agreement, Patterson waived his right to a jury trial and agreed to a bench trial. The State dismissed the two distribution counts, and the parties agreed that, if the court found Patterson guilty after the bench trial, Patterson would receive a composite active sentence of between 12 and 20 years. (The parties also agreed that 12 to 20 years was the applicable presumptive range for a single count, in light of the fact that Patterson had a prior conviction for a sexual felony.)
The amount of suspended time and probation period were left open to the court's discretion.
See former AS 12.55.125(i)(4)(C) (pre-2019 version) (providing that the presumptive range for a second felony offender convicted of possession of child pornography is 12 to 20 years, if the person's prior conviction is for a sexual felony).
Following the bench trial, the court found Patterson guilty of seven counts of possessing child pornography and acquitted Patterson of one count. The court also found two aggravating factors. The court imposed a composite sentence of 17 years with 5 suspended (12 years to serve). On the judgment, the court indicated that the seven counts were "merged for [s]entencing purposes."
Patterson subsequently filed applications for post-conviction relief and motions to correct illegal sentence in the superior court. By 2020, Patterson had two pending appeals and two pending post-conviction relief applications related to this case.
In 2020, Patterson entered into a new agreement with the State which voided the 2013 agreement. Under this agreement, Patterson would withdraw from the 2013 agreement, plead guilty to the seven counts of possessing child pornography as listed on the 2013 judgment, and receive an entirely time-served sentence of 14 years with 5 suspended. In exchange, Patterson would withdraw his pending appeals and postconviction relief applications, and the distribution counts in the indictment would remain dismissed. As part of the agreement, Patterson and the State stipulated to a mitigating factor.
Specifically, Patterson agreed to dismiss his two pending appeals and one of his post-conviction relief applications. The agreement called for the court to grant postconviction relief as to the other application, which would allow Patterson to withdraw from the 2013 plea agreement. This portion of the agreement was premised on the notion that the parties at Patterson's original sentencing in 2013 mistakenly believed that he would be eligible for good time credit when in fact his prior sexual felony conviction precluded it. See former AS 33.20.010(a)(3) (2006-2009).
Patterson pleaded guilty to the seven counts, and the court imposed the agreed-upon composite sentence of 14 years with 5 suspended.
Patterson subsequently filed a pro se motion to correct this new sentence on the ground that it was illegal. The superior court denied Patterson's motion.
Patterson now appeals, raising two issues.
Why we reject Patterson's claim that the seven counts should have merged into a single conviction
Patterson first argues that the superior court erred when it failed to merge the seven counts for possession of child pornography into a single conviction of record. According to Patterson, the 2020 plea agreement required that Patterson plead guilty to seven counts of possession of child pornography "as listed on the judgment" from 2013. Because Patterson's 2013 judgment stated that the counts were "merged for [s]entencing purposes," Patterson asserts that it was the parties' intent under the 2020 plea agreement that he have only one conviction of record.
But Patterson's convictions were not subject to merger under Alaska law. Patterson pleaded guilty to seven counts of possession of child pornography under AS 11.61.127. Subsection (c) of this statute provides that each item of child pornography possessed by a defendant constitutes "a separate violation of this section."We have previously recognized that each item of child pornography constitutes a separate offense under AS 11.61.127 and that convictions under this statutory provision are not subject to merger. Patterson's judgment therefore properly reflects seven separate convictions for possession of child pornography.
AS 11.61.127(c).
See Carr v. State, 2007 WL 1228948, at *6 (Alaska App. Apr. 25, 2007) (unpublished) (concluding that, under AS 11.61.127(c), the defendant's "possession of several images [of child pornography] did not constitute one offense for purposes of double jeopardy, and the convictions were not subject to merger"); see also State v. Parker, 147 P.3d 690, 696 (Alaska 2006) (explaining that "each pornographic photograph and video" in the defendant's possession "could support a separate violation of AS 11.61.127").
To the extent that Patterson relies on the fact that the 2013 judgment stated that his convictions were "merged for [s]entencing purposes" as justification for merging the counts now, this reliance is misplaced. Notwithstanding the notation on the judgment, it is clear from the parties' oral presentation of the 2013 agreement, prior to the bench trial, that any time imposed on the different counts would run concurrently should Patterson be convicted. The parties did not intend that the counts themselves would merge. In recounting the original agreement in 2013, the superior court specifically stated that the time imposed on the counts would run concurrently. And as we already noted, AS 11.61.127(c) - which was in effect at the time of the commission of Patterson's offenses - precluded merger of the counts into a single conviction.Thus, the nomenclature on the 2013 judgment is simply mistaken and does not properly reflect the intent of the parties and court in 2013, nor the law in effect at the time.
In a sentencing memorandum following the bench trial, defense counsel reiterated that, pursuant to the agreement, the sentences would run concurrently.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (distinguishing the "merger" of separate counts into a single conviction from the imposition of concurrent sentences on different convictions). As we noted in Nicklie, "Alaska law does not recognize the existence of a merger 'for sentencing purposes only.'" Id.
The statutory provision requiring some consecutive term of imprisonment for each additional conviction for possession of child pornography was enacted in 2013, after the commission of Patterson's offenses. See AS 12.55.127(d), enacted in SLA 2013, ch. 43, § 21.
This provision was first enacted in 1998. See SLA 1998, ch. 81, § 9, amended to current form in SLA 2010, ch. 18, § 7.
Moreover, the record of the 2020 proceedings reflects that Patterson understood and agreed that he would be convicted of seven separate offenses. The 2020 plea agreement stated that Patterson would enter a guilty plea to seven counts of possessing child pornography, and Patterson entered guilty pleas to each of the seven counts. The parties then extensively discussed how Patterson's sentence should appear on the judgment. The court explained that it could place 14 years with 5 years suspended on one count, and no time on the other six counts, or put 14 years with 5 years suspended on each of the counts to run concurrently. Patterson did not object to either option; he only requested that if the court were to impose time on only one count, it be placed on Count VIII. The record makes clear that the State, Patterson, and the superior court all understood that Patterson would be convicted of seven separate offenses.
For these reasons, we conclude that the superior court did not err in failing to merge Patterson's seven counts of possessing child pornography into a single conviction.
Why we reject Patterson's claim that the superior court erred in imposing the agreed-upon sentence, which was premised on a presumptive sentencing range for a second felony offender
Patterson next argues that his sentence is illegal because the record does not establish that he was previously convicted of a sexual felony, as required to place him within the presumptive sentencing range of 12 to 20 years for a second felony offender.
Former AS 12.55.125(i)(4)(C) (pre-2019 version) (providing that the presumptive range for a second felony offender convicted of possession of child pornography is 12 to 20 years, if the person's prior conviction is for a sexual felony).
As we noted earlier, Patterson received a sentence of 14 years with 5 years suspended. His active term of imprisonment - 9 years - is actually within the 2- to 12-year presumptive range for a first felony offender. But his 5 years of suspended time brought his total term of imprisonment to 14 years - 2 years above the high end of the presumptive range for a first felony offender and within the applicable range for a second felony offender. For this reason, Patterson argues that his sentence, premised on the second felony offender range, is illegal.
Former AS 12.55.125(i)(4)(A) (pre-2019 version).
At the time of his offenses in this case, Patterson had a prior conviction in Minnesota for "possession of pornographic work involving minors." The Minnesota conviction was used as the basis for establishing that Patterson was a second felony offender subject to a presumptive sentencing range of 12 to 20 years. Patterson now argues that his Minnesota conviction does not qualify as a prior conviction for presumptive sentencing purposes because the mens rea elements of the Minnesota statute and the corresponding Alaska statute are not sufficiently similar. And Patterson argues that, as a result, we should vacate his sentence.
Minn. Stat. § 617.247(4)(a). Patterson was convicted of two counts of "possession of pornographic work involving minors" under a single case number in Minnesota. The parties treated them as a single conviction for presumptive sentencing purposes. See AS 12.55.145(a)(4)(C).
See former AS 12.55.125(i)(4)(C) (pre-2019 version).
See AS 12.55.145(a)(4)(A). Compare Minn. Stat. § 617.247(4)(a) (requiring a mens rea of "knowing or with reason to know"), with former AS 11.61.127(a) (2006-2009) (requiring a mens rea of "knowingly"). Patterson also argues that his Minnesota convictions are misdemeanors. But whether an out-of-state conviction qualifies as a prior conviction for presumptive sentencing purposes depends on whether the offense would be considered a felony in Alaska, not the other state. See Borja v. State, 886 P.2d 1311, 1313 (Alaska App. 1994).
But Patterson is not entitled to undo a portion of the 2020 plea agreement for the first time on appeal. Rather, when a defendant wishes to challenge a portion of "an already consummated plea agreement as being unlawful, the defendant must seek rescission of the agreement - not selective enforcement of only those provisions favorable to the defendant." Patterson is not seeking to withdraw from the 2020 plea agreement under Alaska Criminal Rule 11(h), and he is not entitled to have his sentence vacated without reinstatement of the distribution counts that were dismissed as part of the agreement.
Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007); see also Wooley v. State, 221 P.3d 12, 20 (Alaska App. 2009) (explaining that a defendant who agreed to a plea bargain "is not entitled to claim the benefit of the portions of the agreement that [they] like[], while at the same time, mounting an attack on the portions that [they do] not like"); Grasser v. State, 119 P.3d 1016, 1018 (Alaska App. 2005) ("If [the defendant] now believes that he agreed to an . . . illegal sentence when he negotiated his plea bargain with the state, his proper course of action is to ask the . . . court to allow him to withdraw his pleas (i.e., rescind the plea bargain).").
Patterson acknowledges that, by entering into the 2020 plea agreement, he may have waived any challenge to the reliance on his prior Minnesota conviction to establish the applicable presumptive sentencing range. We agree. And even assuming he could raise this issue for the first time on appeal, we would not find plain error.
The history of this case shows that the 2020 sentence to which Patterson expressly agreed was premised on this presumptive range. In 2013, the parties specifically agreed that Patterson was subject to the presumptive range applicable to a second felony offender with a prior sexual felony conviction. The State introduced a certified judgment of the Minnesota conviction at the bench trial, and despite having the judgments, Patterson did not challenge the validity of the Minnesota conviction on the ground that it contains a less stringent mens rea requirement.
See AS 12.55.145(c)(1)(C)(i) (providing that, after receipt of authenticated copies of the judgments, the defendant shall file notice of a denial if the defendant contests that "the elements of a prior offense committed in this or another jurisdiction are similar" to an Alaska felony).
And when Patterson entered into the 2020 agreement, he personally certified that he understood the applicable minimum and maximum punishments, and that he had fully discussed the sentencing range with his attorney. He did not raise any objections to the agreed-upon sentence, the use of his Minnesota conviction for presumptive sentencing purposes, or the 12- to 20-year presumptive range.
Patterson received the benefit of his bargain, and he has not articulated a remedy to which he would be entitled short of seeking to withdraw his plea.
For these reasons, we conclude that the superior court did not err in imposing a sentence of 14 years with 5 years suspended.
Conclusion
The judgment of the superior court is AFFIRMED.