Opinion
Court of Appeals No. A-11419 Trial Court No. 3AN-11-10080 CR No. 6012
12-26-2013
KEITH JOSEPH TRACEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hanley Robinson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Andrew V. Grannik, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Hanley Robinson, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Andrew V. Grannik, Assistant District Attorney, Anchorage,
and Michael C. Geraghty, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge HANLEY.
The State charged Keith Joseph Tracey with three felony sexual offenses and one count of assault in the second degree. Prior to trial, Tracey pleaded guilty to the second-degree assault but contested the remaining sexual assault charges. A jury acquitted him of these additional charges. The trial court sentenced Tracey to 7 years' imprisonment with 3 years suspended, and 5 years' probation. On appeal he asserts that his sentence is excessive. We conclude that the sentence is not clearly mistaken and affirm the superior court's judgment.
Facts of the case and the sentence imposed
Tracey and T.K. lived in different communities in rural Alaska. In 2011, they developed a romantic relationship over the phone and internet. They met in person for the first time in Anchorage and stayed at the Dimond Center Hotel. Both Tracey and T.K. consumed alcohol to intoxication during their week-long visit.
On September 6, 2011, Tracey assaulted T.K. in their hotel room. T.K.gave differing versions to the police and at trial about this assault. She told the police that Tracey sexually and physically assaulted her. But at trial she said that nothing sexual happened, and that she could not remember anything she told the police. She said she made a comment to Tracey that offended him and caused him to become very angry. She testified that Tracey responded by hitting her on the side of the face and head and that he then put his hands around her neck and strangled her, causing her to believe she was going to die. T.K. said that during this assault, she kicked and bit Tracey.
Tracey testified to a different version of events. He said T.K. bit him very hard on the neck while she was giving him a hickey, and that he reacted by slamming his jaw into her face, pushing her, and biting her on the neck. Tracey said he then insulted T.K., and that T.K. responded by hitting him and screaming at him. Tracey said that he then grabbed T.K., yelled at her to stop, and choked her until she stopped screaming. He admitted at trial that he hurt T.K., and that his reaction to the situation was "horrible."
The State charged Tracey with two counts of sexual assault in the first degree, one count of attempted sexual assault in the second degree, and one count of assault in the second degree. Prior to trial, Tracey pleaded guilty to assault in the second degree for recklessly causing serious physical injury to T.K. A jury acquitted him of all remaining charges.
AS 11.41.410(a)(1).
AS 11.41.410(a)(2); AS 11.31.100.
AS 11.41.210(a)(2).
AS 11.41.210(a)(2).
Tracey has no prior felony convictions. The applicable sentencing range for second-degree assault, a class B felony, was 1 to 3 years. However, the trial court was authorized to impose a maximum sentence of up to 10 years if it found that Tracey's offense involved one or more aggravating factors.
AS 12.55.125(d)(1).
AS 12.55.125(d); AS 12.55.155(c).
At sentencing, Tracey conceded the aggravator that he had five or more class A misdemeanor convictions. He asked the court to impose a sentence of 6 years with 3 years suspended, 5 years' probation, and to not impose sex offender conditions. Superior Court Judge Jack W. Smith imposed a slightly higher sentence: 7 years' imprisonment with 3 years suspended, and 5 years' probation.
AS 12.55.155(c)(31).
Tracey's claim that his sentence and length of probation are excessive
Tracey argues on appeal that both his sentence and the length of his probation are excessive. Tracey concedes that strangling is serious conduct. However, he contends that the legislature has prescribed a sentencing range of 1 to 3 years for a person with no felony convictions who commits second-degree assault by strangling, and that the conduct in his case was not particularly serious.
A nurse at Tracey's trial testified that T.K. exhibited numerous injuries on her neck shortly after the assault, including bite marks, bruising, and petechia (ruptured blood vessels under the skin) consistent with strangulation. She also displayed bruising under an eye, on the back of an ear, and on a leg, as well as swelling on her forehead.
Tracey acknowledges that he has a history of abusing alcohol and then committing crimes. However, he contends that much of this criminal history is de minimis in nature and relatively old. At the time of sentencing, Tracey had been convicted of eleven misdemeanors between 1999 and 2012, including three assaults. His most recent assault was in 2008, and was similar to the current offense. In that case, he kicked and punched his then-girlfriend and strangled her twice.
Tracey also argues that the 5-year period of probation imposed by the court is excessive in light of his aggravated sentence. He asserts that supervision beyond 2 or 3 years will "frustrate [his] progress in moving forward with his career, family, and personal life."
Judge Smith's sentence is not clearly mistaken
Sentencing is a discretionary judicial function. In exercising this discretion, the judge must consider the sentencing factors of seriousness of the offense, the defendant's prior criminal history and likelihood of rehabilitation, isolation of the offender to prevent criminal conduct, deterrence of the defendant and others generally, community condemnation of the criminal act, reaffirmation of societal norms, the impact of the crime on the victim, and restoration of the victim. The sentencing court bears primary responsibility for determining the priority and relationship of the various sentencing goals in each case. When reviewing a sentence, this Court will not disturb the sentencing court's decision unless it is clearly mistaken.
State v. Chaney, 477 P.2d 441, 443 (Alaska 1970).
AS 12.55.005; State v. Chaney, 477 P.2d at 444.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
Nicholas v. State, 477 P.2d 447, 449 (Alaska 1970).
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Judge Smith carefully considered the seriousness of the assault on T.K., its impact on her, and Tracey's criminal history. He concluded that Tracey's assault on T.K. was "pretty brutal," and that it was fortunate that T.K. got away from Tracey and that more serious harm was not done to her. He concluded that Tracey's rehabilitation was the primary focus of the sentence, but also emphasized the importance of reaffirmation of societal standards and deterrence of Tracey and others. He fashioned a sentence with the goal that Tracey would return to society with an incentive to not drink alcohol, not assault others, and not violate the law generally.
Judge Smith evaluated possible probation conditions and imposed those addressing alcohol treatment, domestic violence, and anger management. He did not impose sex offender probation conditions, concluding they were not necessary to meet his sentencing concerns. He also did not agree with the State's request for 7 years' probation, instead imposing 5 years.
Upon this record, the sentence imposed by Judge Smith is not clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.