Opinion
Court of Appeals No. A-9409.
August 23, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-04-2301 CR.
Charles E. Steward Sr., pro se, Seward.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Charles E. Steward Sr. was convicted, following a jury trial, of assault in the third degree, a class C felony, eluding a peace officer in the first degree, a class C felony, misconduct involving a controlled substance in the fourth degree, a class C felony, reckless driving, a class A misdemeanor, and resisting arrest, a class A misdemeanor. Superior Court Judge Beverly W. Cutler sentenced Steward, a first-felony offender for purposes of presumptive sentencing, to 18 months for assault in the third degree, an additional 18 months for eluding a peace officer in the first degree, an additional 12 months for misconduct involving a controlled substance in the fourth degree, and two concurrent 3-month sentences for resisting arrest and reckless driving. Steward's composite sentence totaled 4 years of imprisonment. Steward appeals his sentence, raising several issues. We affirm.
AS 11.41.220(a)(1)(A); AS 28.35.182(a); former AS 11.71.040(a)(3)(A); AS 28.35.040; and AS 11.56.700(a)(1), respectively.
The legislature revised Alaska's felony sentencing provisions in 2005. Steward was sentenced under the provisions of the former sentencing law. Steward argues that under former AS 12.55.125(e)(2) Judge Cutler had no authority to sentence him to unsuspended imprisonment that exceeded the two-year presumptive term for a second felony offender convicted of a class C felony without finding that his case was exceptionally aggravated. But Judge Cutler's sentence did not violate the statute. None of the individual sentences that she imposed exceeded 18 months. Rather, as Steward seems to recognize, his case is governed by Farmer v. State. Under Farmer, in order to impose a composite sentence of over 2 years of imprisonment, the presumptive term for a second felony offender, Judge Cutler needed to find a good reason to exceed this benchmark.
746 P.2d 1300 (Alaska App. 1987).
The record shows that Judge Cutler fully justified the sentence that she imposed. Judge Cutler found that Steward had committed a serious assault on the police officer. She found that the proof was overwhelming that Steward had attempted to take the officer's weapon from him. She also found that the eluding offense was serious. The record shows that, after assaulting the officer and resisting arrest, Steward got into his car and fled from the troopers. The pursuit took place at approximately 5:00 p.m. on the Palmer-Wasilla Highway. Steward ran a stop sign and caused other cars to take evasive actions. Judge Cutler also considered Steward's extensive record of prior misdemeanor convictions. Judge Cutler pointed out that Steward had fifteen prior misdemeanor convictions. The record shows that Steward has four prior convictions for assault. In addition, he has three prior convictions for resisting arrest. Judge Cutler concluded that, based upon Steward's prior record, his conduct during the current offense, and his conduct in court proceedings, Steward was not amenable to probation because he would not accept probation supervision. We conclude that Judge Cutler's sentencing remarks and the record in this case support the sentence she imposed.
Steward argues that Judge Cutler should have disqualified herself from his case. But Steward never asked Judge Cutler to recuse herself. And there is nothing in the record that would suggest that Judge Cutler should have taken such an action. We accordingly find Steward's contention without merit.
Steward argues that Judge Cutler considered inaccurate information in sentencing him. But Steward declined to cooperate in the preparation of the presentence report. Therefore, the presentence report does not set out any statements from Steward. The author of the presentence report did interview witnesses who were favorable to Steward and presented the results of the interviews in the presentence report. Steward was able to present his version of the case to Judge Cutler at sentencing. And Judge Cutler's findings during Steward's sentencing are supported by the jury's verdict and the information in the presentence report.
Steward argues that Judge Cutler erred in finding that he was a "worst offender" without giving him prior notice. But Judge Cutler did not make any such finding, nor did she need to, since she did not sentence Steward to the maximum term of imprisonment for any of his crimes.
Steward argues that the sentence that Judge Cutler imposed violated Blakely v. Washington. But none of the sentences that Judge Cutler imposed raise Blakely issues.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
See State v. Gibbs, 105 P.3d 145, 148 (Alaska App. 2005) ( Blakely not violated by imposition of suspended time in excess of presumptive term for second-felony offender).
We conclude that the sentence which Judge Cutler imposed was not clearly mistaken. The sentence is AFFIRMED.
See McClain v. State, 519 P.2d 811, 819 (Alaska 1974).