Opinion
Court of Appeals No. A-9842.
February 20, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric B. Smith, Judge, Trial Court No. 3PA-05-3388 CR.
Scott A. Sterling, Law Office of Sterling DeArmond, P.C., Wasilla, for the Appellant. Roman J. Kalytiak, District Attorney, Melissa J. Howard, Rule 44 Legal Intern, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Rusty J. Redding was convicted of assault in the third degree for recklessly causing physical injury to Joshua Johnson with a dangerous instrument, and misconduct involving a controlled substance in the fourth degree for possessing marijuana with the intent to manufacture or deliver. Both offenses are class C felonies. Redding had a prior felony conviction for misconduct involving a controlled substance in the fourth degree. He was therefore a second felony offender for purposes of presumptive sentencing. He faced a presumptive range of 2 to 4 years on each count.
AS 11.41.220(a)(1)(B).
AS 11.71.040(a)(2).
AS 12.55.125(e)(2).
Superior Court Judge Eric B. Smith imposed two consecutive sentences of 4 years with 2 years suspended on each conviction. Therefore, Redding's composite sentence is 8 years with four 4 years suspended. Judge Smith also ordered Redding to serve five years on probation.
On appeal, Redding argues that Judge Smith erred in rejecting the statutory mitigating factors that Redding proposed for the assault in the third degree conviction. These mitigating factors were based on Redding's testimony at the sentencing hearing that the alleged victim, Joshua Johnson, had entered Redding's house and threatened Redding with a knife in an attempt to steal Redding's marijuana. Redding contended that he acted in self-defense but overreacted and used excessive force.
Redding proposed three mitigating factors: (1) that he committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected his conduct; (2) that he acted with serious provocation from the victim; and (3) that the offense was among the least serious conduct included in the definition of the offense. AS 12.55.155(d)(3), (6), (9) (formerly (3), (6), (8)).
The State did not present any witnesses at the sentencing hearing. After hearing Redding's testimony, Judge Smith rejected Redding's description of the offense. Judge Smith found that Redding's version of the offense was "very much at odds with the physical evidence and the statements of all the other witnesses." He therefore rejected Redding's proposed mitigating factors.
On appeal, Redding contends that Judge Smith erred in relying on the hearsay statements in the presentence report to reject his testimony and his proposed mitigating factors. We agree and therefore remand the case for resentencing.
The offenses as set out in the presentence report
According to the presentence report, Amber Whitaker contacted the Alaska State Troopers to report an assault. Trooper Fore contacted Whitaker in the emergency room, where she was with her boyfriend, Joshua Johnson, and a friend, Garret Stoll. According to Whitaker, Stoll drove Johnson and her to the residence of Rusty Redding, a friend. Johnson went inside while Whitaker was getting some items out of the car. When she went inside Redding's residence, Whitaker saw approximately eight people holding Johnson down on the floor. Whitaker announced that she was going to call the police. Redding struck her, knocking her down the stairs to the floor. Whitaker stated that Johnson was able to get free a short time afterwards, and they were able to get in Stoll's car and drive away from the residence.
Stoll told the troopers that he had driven Johnson and Whitaker over to Redding's house. After he dropped them off, he was sitting in the driver's seat of his car when a man came out of the residence and started hitting him through the open window of the car. A short time later, Whitaker and Johnson came out of the house and got in the car. He was able to drive away.
Johnson told Trooper Fore that he and Whitaker had been invited to Redding's house for a party. Johnson stated that Stoll gave them a ride to Redding's residence. When Johnson walked into Redding's house, he was encountered by eight men. Johnson stated that Redding was wearing black gloves and had a handgun. Johnson stated that Redding told him to "get down on the ground or I'll blow your . . . brain out." Redding began to hit Johnson in the face and head with the gun while the other men held him down. Then Whitaker entered the residence and Redding struck her, knocking her to the floor. Redding left the residence, telling the others to hold on to Johnson. But Johnson was able to get away. When he got outside, he saw Redding punching Stoll in the face through the window of Stoll's car.
According to the presentence report, the day after talking with Whitaker, Stoll, and Johnson, the troopers went to Redding's residence with a search warrant. Redding told the troopers that Johnson had attacked him with a knife. According to Redding, he picked up a skull that was sitting on his television and hit Johnson with it. Johnson dropped the knife. Redding hit him a couple more times, and then Johnson left the residence.
The troopers discovered evidence of Redding's marijuana selling activity while they were serving the search warrant. In an interview, Redding admitted selling an average of an ounce of marijuana every two days. Trooper Fore also contacted Christopher Stumpf with a telephone number provided by Redding. Stumpf essentially corroborated Johnson's version of the incident. Stumpf also told Trooper Fore that Redding sold about $10,000 a week in marijuana and mushrooms.
Why we conclude that Judge Smith could not reject Redding's version of the offense based on the presentence report
In arguing that Judge Smith could not reject his testimony based on the witnesses' statements in the presentence report, Redding relies on Hamilton v. State. Hamilton faced sentencing for sexual assault in the first degree. The State sought to establish two aggravating factors to enhance Hamilton's sentence: that Hamilton had a prior criminal history of assaultive behavior and that Hamilton had committed prior similar offenses. The State offered the hearsay statements of two women who alleged that Hamilton had sexually assaulted them. Hamilton entered a testimonial denial that he had committed the sexual assaults. But the sentencing judge found the hearsay statements were sufficient to establish the aggravating factors. Hamilton appealed.
771 P.2d 1358 (Alaska App. 1989).
AS 12.55.155(c)(8) and AS 12.55.155(c)(21).
Hamilton, 771 P.2d at 1361.
In Ashenfelter v. State, we summarized the holding in Hamilton. We stated that in Hamilton "the risks of hearsay evidence were substantial enough that the use of hearsay should be restricted at sentencing. Accordingly, we adopted the rule that when a defendant denies the State's allegations under oath and submits to cross-examination, the State should then be required either to produce its witnesses in court or prove that the witnesses are unavailable and that the circumstances tend to confirm the witnesses' veracity."
988 P.2d 120 (Alaska App. 1999).
Id. at 125-26 (citing Hamilton, 771 P.2d at 1362-63).
Relying on Hamilton, Redding argues that Judge Smith erred in relying on the hearsay statements in the presentence report to reject his testimony and to reject his proposed mitigating factors. The record strongly suggests that Judge Smith rejected Redding's testimony in large part because Redding's testimony was contradicted by the witnesses' accounts set forth in the presentence report. We agree with Redding that, once Redding set forth his version of the offense under oath and was subject to cross-examination, Judge Smith could not reject Redding's testimony based on the fact that it was inconsistent with the hearsay witnesses' accounts set out in the presentence report. We accordingly must remand for resentencing.
The sentencing decision of the superior court is vacated. On remand, the parties shall be given the opportunity to re-litigate the applicable aggravating and mitigating factors. The superior court shall make renewed findings on the aggravators and mitigators and shall forward the findings to this court within 60 days of this opinion. In addition, if the superior court amends Redding's sentence, it shall furnish this court with a copy of the amended judgment. We retain jurisdiction.