Opinion
Court of Appeals No. A-11807 No. 6087
08-27-2014
SYLVESTER H. PEELE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. G. Michael Ebell, 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 authority for any proposition of law. Trial Court No. 3AN-13-11530 CR MEMORANDUM OPINION Appeal from the District Court, Third Judicial District, Anchorage, Stephanie Rhoades, Judge. Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. G. Michael Ebell, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. PER CURIAM.
The State charged Sylvester H. Peele with fourth-degree assault based on evidence that he demanded sex from a woman and, when she refused, held her down and pressed his hands against her neck until she began to choke and cough. According to the information, Peele was "highly intoxicated" at the time of the assault. Peele pleaded no contest to the charge, with his sentence to be determined by the court.
AS 11.41.230(a)(1).
At Peele's sentencing, the district attorney and the defense attorney both recommended a sentence of 120 days, with no time suspended. District Court Judge Stephanie Rhoades rejected the parties' recommendation. Based on Peele's criminal history and the seriousness of the assault in this case, the judge found that Peele was a worst offender and sentenced him to a near-maximum sentence of 360 days to serve.
AS 11.41.230(b) (fourth-degree assault is a class A misdemeanor); AS 12.55.135(a) (the maximum sentence for a class A misdemeanor is 1 year).
Peele argues that the judge was clearly mistaken in imposing this sentence. He does not dispute the district court's finding that he was a worst offender. Instead he argues that the sentence is longer than necessary to protect the public given the fact that the prosecutor and defense attorney both recommended a much lighter sentence of 120 days.
But as we explained in Ephamka v. State,
878 P.2d 647 (Alaska App. 1994).
it is the judge who must decide a defendant's sentence, not the prosecutor. Reasonable people can differ regarding the proper sentence for a particular defendant; the supreme court's adoption of the "clearly mistaken" standard of review in sentence appeals rests on the recognition that there is a "range of reasonable sentences" for any given defendant.
Id. at 652 (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
Here, the district court judge found that Peele's assault was serious because, in addition to being a physical assault, it "basically amount[ed] to an attempted sexual assault." The court also considered Peele's lengthy criminal history, which included seven prior assault convictions, a prior sexual assault conviction, numerous convictions for disorderly conduct, and a history of alcohol-related offenses. The court further determined that Peele had "taken absolutely no interest in rehabilitation." The court accordingly concluded that rehabilitation was not an important factor to consider in sentencing Peele and instead emphasized the Chaney sentencing goal of isolating Peele to protect the public.
See Benboe v. State, 698 P.2d 1230, 1232 (Alaska App. 1985) (in determining an appropriate sentence, a sentencing judge may consider that the defendant's conduct would have qualified as a more serious offense).
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (now codified in AS 12.55.005).
Peele argues that the court should have weighed his prior efforts at rehabilitation more heavily in his favor. He asserts that he "stated on the record that he had made attempts at mental health and substance abuse treatment that were stymied by his current incarceration," and that the court should have taken these efforts into consideration when fashioning its decision. This argument relies on the following remarks at sentencing:
Peele: I lost out [on] a lot of things, you know, just coming into jail. I was like — lost out on my housing and everything, because I had assisted-living housing and everything. But — and plus I was scheduled for mental health evaluations and substance abuse, you know, and it was like ... I just did everything wrong, man[.]
We find no error in the district court's failure to give significant weight to these statements regarding Peele's interest in rehabilitation. We note that at the time of his sentencing in this case, Peele had thirty-nine prior criminal convictions, including various alcohol- and drug-related offenses, and he was apparently "highly intoxicated" when he committed the offense in this case.
We review a defendant's sentence under the "clearly mistaken" standard. Decisions regarding the weight or emphasis to be given the various Chaney criteria are primarily entrusted to the discretion of the sentencing judge. Having independently reviewed the record in this case, we conclude that the district court's findings are supported by the record and that the sentence was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Id. at 813; see also Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
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We AFFIRM the district court's sentence.