Opinion
Court of Appeals No. A-10765 No. 6100
10-15-2014
BRETT A.J. TALMADGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, 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. 3PA-09-125 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Brett A.J. Talmadge of three counts of second-degree sexual abuse of a minor and one count of attempted second-degree sexual abuse of a minor. At sentencing, the superior court imposed a composite sentence of 23 years with 12 years suspended,11 years to serve. Talmadge appealed his convictions on several grounds and also challenged his sentence as excessive. In Talmadge v. State, we affirmed Talmadge's convictions, but we deferred any decision on his excessive sentence claim until we resolved whether we had jurisdiction to hear the claim under AS 12.55.120(e).
2013 WL 784884 (Alaska App. Feb. 27, 2013) (unpublished).
We recently held in Mund v. State that in enacting AS 12.55.120(e) the Alaska Legislature did not overrule Appellate Rule 215(a), and that this Court therefore still has jurisdiction, under the circumstances of this case, to review a sentence within the presumptive range for excessiveness. Accordingly, we now consider Talmadge's excessive sentence claim on its merits.
325 P.3d 535 (Alaska App. 2014).
Talmadge's convictions arose from two separate incidents involving the same victim, who was fifteen years old at the time.
The first incident involved vaginal penetration with the victim after she had consumed alcohol and passed out at Talmadge's house. The jury convicted Talmadge of one count of second-degree sexual abuse of a minor for this incident.
In the second incident, Talmadge locked the same victim in a trailer, threatened to notify her parents about her drinking and smoking unless she had sex with him, and then subjected her to digital, genital, and attempted anal penetration. The jury convicted Talmadge of two counts of second-degree sexual abuse of a minor and one count of attempted second-degree sexual abuse of a minor for this conduct. The superior court merged these three convictions at sentencing.
As a first felony offender, Talmadge faced a presumptive range of 5 to 15 years for each offense. The superior court imposed a composite sentence within that presumptive range: 23 years with 12 years suspended, 11 years to serve. In imposing that sentence, the court emphasized the seriousness of the second incident, finding that, for his own sexual gratification, Talmadge had used threats and duress to take advantage of the victim's youth, vulnerability, and lack of sophistication.
AS 12.55.125(i)(3).
On appeal, Talmadge argues that the superior court failed to give sufficient weight to his lack of a criminal history, his demonstrated remorse, and his potential for rehabilitation.
The record reflects that the court expressly considered Talmadge's lack of criminal history and his potential for rehabilitation. In her sentencing remarks, the judge stated that rehabilitation was an important sentencing factor in Talmadge's case, but she concluded that Talmadge's prospects for rehabilitation were diminished by the "unrealistic sense of entitlement" that led him to focus his allocution on himself rather than the victim.
The judge also expressly considered Talmadge's expressions of remorse but she did not give them great weight. Instead, the judge found that Talmadge's "statements of remorse ... [rang] somewhat hollow," given the overall tenor of his allocution.
Although Alaska law requires a sentencing judge to consider the various sentencing criteria codified in AS 12.55.005, the sentencing judge bears the primary responsibility for determining the priority and relationship of these sentencing goals under the facts of any specific case.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998).
Here, the sentencing judge expressly considered Talmadge's potential for rehabilitation, as well as the other statutory sentencing goals, and the judge concluded that Talmadge's case called for a lengthy sentence. We have independently reviewed the record and we conclude that the judge's sentencing decision was not "clearly mistaken" — i.e., that it was within the "permissible range of reasonable sentences" that might be imposed under these facts.
State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (quoting McClain v. State, 519 P.2d 811, 813 (Alaska 1974)).
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Conclusion
We AFFIRM the superior court's sentencing decision.