Opinion
Court of Appeals No. A-11440 Trial Court No. 4BE-08-410 CR No. 6009
12-18-2013
GARY L. PETE SR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, District Attorney, Bethel, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.
Appearances: Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, District Attorney, Bethel, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
We are asked to review the decision of the superior court to revoke Gary L. Pete's felony probation and to impose the remainder of his sentence (a little less than 25 months' imprisonment). For the reasons explained here, we affirm the superior court's decision.
Pete's underlying criminal offense — the offense for which he was on probation — occurred in May 2008. The events were put in motion when Pete's wife called the Bethel Police Department and asked the police to remove her husband from the house. According to Mrs. Pete, her husband was "acting up" and "saying he wanted to die".
When two police officers arrived, Pete came out of the house with a rifle. He pointed this weapon at the officers, and he did not reply when they directed him to put the rifle down. When two more officers and an Alaska State Trooper arrived on the scene, Pete pointed his rifle at them as well. At some point, Pete went back into the house, but then he broke out a window and pointed his rifle through the broken window.
Pete eventually surrendered and was taken into custody. He was intoxicated, and he had suffered a cut on his wrist from the broken window glass, so the officers took him to the Kuskokwim Health Clinic. The medical staff at the clinic were already acquainted with Pete; they reported that he had been on a drinking binge for the past nine months.
After a week of treatment, Pete was arrested on five counts of third-degree assault (one count for each of the officers involved). He was interviewed at the time of his arrest, and he told the officers that he was distraught because he had lost his children, he had lost his job, and he was unable to pay his bills. Pete apologized for pointing his rifle at the officers; he explained: "I wanted to commit suicide, but I didn't want to do it myself. ... I wanted you guys to shoot me."
Pete was 44 years old at the time of this incident. He had several prior criminal convictions, including three convictions for misdemeanor assault, two convictions for disorderly conduct, one conviction for resisting arrest, and two convictions for driving under the influence.
Several months after Pete's indictment on the five counts of third-degree assault in this case, he reached a plea agreement with the State. Under the terms of this agreement, Pete pleaded guilty to a single count of third-degree assault, and he was sentenced to 3 years' imprisonment with 30 months suspended (6 months to serve), with 4 years of probation following his release.
In the pre-sentence report that was prepared in advance of Pete's sentencing, the pre-sentence investigator told the court:
Although a plea agreement has been reached in this case, it is questionable whether [the agreed-upon] sentence will have an impact on the defendant ... . [T]he defendant's chances for rehabilitation are unknown, due to his ... lengthy history involving problems with alcohol use and assaultiveness. It is hoped the defendant will put forth the effort required in treatment to change his behaviors.
Pete served his 6 months in prison, and then he was released on probation. He served that probation without major incident until April 2011, when the State filed its first petition to revoke Pete's probation, based on Pete's "consuming alcohol to excess". The superior court revoked Pete's probation and sentenced him to serve 60 days of his previously suspended jail sentence.
About seven months later, the State filed its second petition to revoke Pete's probation, again based on Pete's "consuming alcohol to excess". The superior court again revoked Pete's probation and sentenced him to time served (2 days).
Two months after that, the State filed its third petition to revoke Pete's probation, again based on Pete's drinking. This time, the superior court sentenced Pete to serve 100 days of his previously suspended sentence.
Several months later (on October 1, 2012), the State filed its fourth petition to revoke Pete's probation. A state trooper had found Pete "highly intoxicated" and "riding around in a vehicle" with his teenage son. A subsequent breath test showed that Pete's blood alcohol level was .256 percent (more than three times the legal limit).
Pete admitted this allegation, and the superior court then held a disposition hearing. At this hearing, Pete's attorney presented several people who attested to Pete's good character, and to the fact that he was an excellent and diligent worker when he was sober. Pete's sister testified that he had reached "true rock bottom". She asked the court to give Pete one more chance, but she urged the court to show Pete no mercy in the future — to tell him, "If you ever do this again, you will go to jail to serve the rest of your [sentence]".
Pete's probation officer had a more pessimistic view of the situation. She told the court, "Mr. Pete has been through treatment ... numerous times. And I think it's [only] taught him ... what we want to hear from him, not necessarily that he should quit drinking. I honestly believe that Mr. Pete thinks he can still drink." The probation officer also referred to the facts of Pete's original offense, declaring that Pete was "lucky to be sitting here in this courtroom".
The probation officer conceded that Pete had several people who were willing to support him, but the probation officer pointed out that "those support networks have been there throughout this whole time" — i.e., through Pete's prior drinking and the three prior petitions to revoke his probation — and Pete had not taken advantage of that support. The probation officer also noted that Pete had not proposed any new treatment or any other plan to improve the situation. She urged the court to impose the remainder of Pete's sentence — 24 months and 20 days — so that Pete would have the opportunity to enter a long-term treatment program available through the Department of Corrections.
After hearing the arguments of the defense attorney and the prosecutor, the superior court concluded that there was no point in having Pete spend further time on probation. The court stated:
The Court: [The] probation [office] says that they don't feel that they can work anymore with you — that you don't follow their restrictions, their conditions. And that certainly seems to be the case. [Your attorney] suggests daily [breath tests], community work service, [and] more probation. Sir, I think we're past that.
I think ... , for the protection of the community, that all the [remaining] time should be imposed ... . I recommend ... to the Department of Corrections that you be placed ... into one of the two or three programs ... that will give you some period of sobriety. ... [But] I think four is enough, with your record and your [failed] attempts.
When a defendant violates the conditions of their probation, the sentencing judge is not allowed to automatically impose all of a defendant's remaining suspended jail time. Rather, the judge must consider the totality of the circumstances — the defendant's background, the defendant's original offense, and the defendant's conduct on probation — and then weigh these circumstances in light of the sentencing criteria codified in AS 12.55.005.
See Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App. 1989); Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988).
The record shows that the superior court did that in Pete's case. Having engaged in this analysis, the superior court concluded that it should impose the remaining 24½ months of Pete's sentence. At this point, we are required to affirm the superior court's sentencing decision unless we are convinced that it is clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
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In his brief to this Court, Pete argues that the superior court failed to adequately explain why the goals of sentencing would not be met if Pete were returned to probation and ordered to enroll in a long-term treatment program in Anchorage. But in its sentencing remarks, the superior court noted the potential connection between Pete's continuing struggles with alcohol and the fact that Pete had generally received light sentences for his past violations of probation. The court concluded that Pete would not be truly motivated to pursue alcohol abuse treatment until he was at last confronted with serious consequences — and, thus, a lengthy sentence was required.
We have independently examined the record, and we conclude that the superior court's decision is not clearly mistaken. Accordingly, the judgement of the superior court is AFFIRMED.