Opinion
Court of Appeals No. A-10450.
July 1, 2009.
Appeal from the District Court, Second Judicial District, Nome, Bradley N. Gater, Magistrate, Trial Court No. 2NO-08-946 CR.
William R. McMillen, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. John A. Earthman, District Attorney, Nome, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Al Ahnangnatoguk pleaded no contest to assault in the fourth degree, and Magistrate Bradley N. Gater imposed the maximum 1 year's imprisonment for that offense. Ahnangnatoguk appeals, arguing that the district court erred in finding him a worst offender, that the court unlawfully considered his eligibility for good-time deductions when sentencing him, and erroneously relied on misconduct that formed the basis of charges dismissed in the plea agreement. We reject these arguments for the reasons explained below.
AS 11.41.230(a)(1).
Factual background
The State charged Ahnangnatoguk with assault in the fourth degree for striking his niece in the face after she poured out his bottle of alcohol. The State also charged him with assault in the fourth degree for placing his nephew in fear, with resisting or interfering with arrest, and with providing false information to a peace officer. Ahnangnatoguk pleaded no contest to the first assault count, and the State dismissed the remaining counts. As part of this agreement, Ahnangnatoguk also withdrew a post-conviction relief application in a separate felony case. The plea agreement left the sentence open for the court to determine.
Magistrate Gater found that Ahnangnatoguk was a worst offender and imposed the maximum sentence of 1 year's imprisonment. Ahnangnatoguk now appeals, contending that this sentence is excessive.
Ahnangnatoguk qualifies as a worst offender
Ahnangnatoguk asserts that Magistrate Gater erred by finding him to be a worst offender. He argues that Magistrate Gater improperly relied on his criminal history and did not take into consideration his counsel's assertions that he did not exhibit antisocial behavior in this incident, that he accepted responsibility for his misconduct, and that the assault did not cause lasting physical injuries.
To sentence any offender to the maximum term of imprisonment in Alaska, the sentencing judge must find the defendant to be a "worst offender." This worst-offender finding can be based "on the circumstances surrounding the defendant's present offense, or on the defendant's criminal history, or both." In general, where a worst-offender finding is based on an offender's background instead of the seriousness of his offense, it must be based on a finding that the offender's prior conduct "clearly established . . . [him] to be undeterrable and incapable of rehabilitation." The law traditionally recognizes "that the most reliable indicator of future danger is an offender's willingness to reoffend despite previous efforts at deterrence or rehabilitation."
State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
Foley v. State, 9 P.3d 1038, 1041 (Alaska App. 2000).
Keyser v. State, 856 P.2d 1170, 1177 (Alaska App. 1993).
Id.
In this case, Magistrate Gater was justified in finding fifty-two-year-old Ahnangnatoguk a worst offender based on his lengthy criminal history. Ahnangnatoguk had a total of forty-five prior criminal convictions — five of which were felonies. Indeed, Ahnangnatoguk had seven prior assault convictions, and four of these were felonies. The court considered this continuous nature of Ahnangnatoguk's criminal history, his persistent use of alcohol, his failure to be deterred by his prior sentences, and the substantial risk of injury to others posed by his conduct in continuing to drink and commit crimes. The court concluded that jailing Ahnangnatoguk would not deter or rehabilitate him and that the primary sentencing goal was therefore isolation. Magistrate Gater's conclusion that Ahnangnatoguk is a worst offender is amply supported by the record.
The court properly relied on facts in the complaint affidavit
Ahnangnatoguk also claims that, during the sentencing proceedings, the prosecutor and the court improperly relied on the charges of resisting arrest and providing false information, which were dismissed pursuant to his plea agreement. He points to the prosecutor's statements that, after he consumed alcohol and assaulted a family member, "things took off from there," and that he "put law enforcement officers at risk." Ahnangnatoguk argues that the district court considered this conduct underlying the dismissed charges when it stated that: "The one . . . most significant part of this, . . . more significant than any of the allegations that are thrown in along with this assault, is simply the fact of consuming alcohol that led up to this."
Emphasis in Ahnangnatoguk's brief.
A sentencing judge is entitled to rely on verified instances of past antisocial behavior even if the defendant has not been convicted of, or even charged, with a crime. In this case, the prosecutor's argument and the judge's statement referred to misconduct that was described in the sworn affidavit supporting the criminal complaint, which satisfies the requirement that prior misconduct must be verified. Although Ahnangnatoguk's attorney asked the court not to rely on information alleged in the complaint, Ahnangnatoguk did not personally deny the facts stated in the affidavit or present any evidence that the affidavit was inaccurate. Magistrate Gater was therefore entitled to rely on the sworn statements in the affidavit. In any event, Magistrate Gater's reference to this evidence was inconsequential in the context of his sentencing remarks as a whole. The court did not rely on Ahnangnatoguk's eligibility for good-time credit
Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977) ( Nukapigak I), aff'd on reh'g, 576 P.2d 982 (Alaska 1978) ( Nukapigak II).
See Nukapigak II, 576 P.2d at 983; Nukapigak I, 562 P.2d at 701 n. 2.
See Nukapigak II, 576 P.2d at 984; Evan v. State, 899 P.2d 926, 928 (Alaska App. 1995).
Ahnangnatoguk also argues that the court erroneously relied on his eligibility for good-time credit when fashioning his sentence.
It is true that Magistrate Gater referred in his sentencing remarks to the fact that Ahnangnatoguk would receive good-time credit; he stated that Ahnangnatoguk w as entitled to "possibly up to a third off for good behavior." Under AS 33.20.010, a defendant sentenced to more than three days of imprisonment is entitled to a deduction of one third of that term if he follows prison rules.
But Alaska Criminal Rule 32.2(c)(2) requires sentencing courts to identify "the approximate term of imprisonment the defendant must serve if the defendant is eligible for and does not forfeit good conduct deductions" if the defendant is sentenced to "a term of imprisonment exceeding 90 days for a misdemeanor offense." Under Rule 32.2(c)(2), "[T]hese approximate terms of imprisonment are not part of the sentence imposed and do not form a basis for review or appeal of the sentence imposed."
Criminal Rule 32.2(c)(2) thus required Magistrate Gater to inform Ahnangnatoguk of his eligibility for good-time credit. There was no indication, however, that the magistrate relied on Ahnangnatoguk's eligibility for good-time credit when he fashioned his sentence. We therefore find no error in the magistrate's remarks.
Conclusion
We AFFIRM the district court's judgment and sentence.