Summary
remanding when the record was unclear whether the sentencing court had a misunderstanding about parole eligibility that affected the sentence it imposed
Summary of this case from Turner v. StateOpinion
Court of Appeals No. A-9959.
March 18, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-05-1544 CR.
Brian T. Duffy, Assistant Public Advocate, Anchorage, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ezial Avery was convicted after a bench trial of two counts of sexual assault in the first degree, one count of assault in the fourth degree, and one count of violating a domestic violence protective order. Superior Court Judge Eric A. Aarseth imposed a composite sentence of 51 years with 10 years suspended. Avery now appeals contending, that his sentence is excessive.
AS 11.41.410(a)(1).
AS 11.41.230(a)(1).
AS 11.56.740(a).
Background
Avery has a long record of convictions for violent assaults against women. In 1983, Avery was convicted of assault in the fourth degree after he choked and slapped his girlfriend and pushed her head against a wall. In 1987, Avery was convicted of assault after he struck an eighteen-year-old woman and began to drag her into the woods. In 1990, Avery was convicted of disorderly conduct when he attempted to smother his former girlfriend and threatened to kill her.
Avery was also convicted in 1990 of disorderly conduct after he whipped his girlfriend, C.R., with an electric cord, held a knife to her throat, and threatened to sexually assault her. The following month, Avery was convicted of assault after he grabbed C.R. around the neck, dragged her from her kitchen to the living room, and kicked her. The next year, Avery was convicted of assault after he hid in C.R.'s closet, attacked her when she went to bed, and kicked her in the mouth.
Later in 1991, Avery was convicted of sexual assault in the first degree for an especially violent and degrading assault against C.R. while she was pregnant with his child. While Avery was serving his sentence for this sexual assault charge, his parole was revoked for unauthorized contact with C.R. and for his unsatisfactory discharge from sex-offender treatment.
In 2002, Avery married V.Q., the victim in the present case. Later that year, Avery was convicted of assault after he beat V.Q. so badly that her eye swelled shut. Avery was next convicted of assault in 2003 because he assaulted V.Q. on a daily basis, holding her down and choking her if she tried to leave the residence without his permission. Avery was again convicted of assault in 2004 after he slapped V.Q., strangled her, and demanded sex.
In the present case, the presentence report stated that Avery had come to V.Q.'s house on February 18, 2005, in violation of a domestic violence restraining order. V.Q. asked Avery to leave, but he told her that he wanted something to eat. After he was done eating, Avery entered V.Q.'s bedroom and pulled her clothes off. He then forcibly sexually assaulted her numerous times throughout the night. Avery repeatedly hit V.Q. on her head and thigh, and threatened to "bust her head open." She was afraid that he would kill her if she tried to leave.
Judge Aarseth held a sentencing hearing on May 25, 2007. After hearing from both parties, the judge imposed consecutive sentences of 25 years with 5 years suspended for each count of sexual assault in the first degree, and 1 year for violating a domestic violence protective order. Judge Aarseth did not impose any separate sentence for the conviction of assault in the fourth degree because it merged with the conviction for sexual assault.
Discussion
We are required to uphold Judge Aarseth's sentencing decision unless we are convinced that the sentence is clearly mistaken. Avery mainly argues that Judge Aarseth mistakenly assumed that Avery would be eligible for parole before he completed the unsuspended portion of his sentence. Avery's argument is based on the following comments by Judge Aarseth after he had outlined the sentence of imprisonment:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
I am compelled to impose a sentence and basically the least restrictive sentence that I can, that I think is necessary to meet the sentencing goals, and I think the sentence that I have announced does that. It has the extra 10 years that's there to serve if you're not going to be successful on probation. But there is a chance after you have served that — the 41 years and you will be released earlier than that 41 years, that there could be a significant change in the way that you do things and the way you conduct yourself. And if that's true then it's not going to be necessary for the 10 years to be imposed.
These comments arguably support Avery's contention that, at the time of these remarks, Judge Aarseth assumed that Avery would be eligible for parole before the end of his sentence. Such an assumption would be mistaken. Avery is not eligible for parole because he was previously convicted of a sexual felony.
See AS 33.16.090(b)(2) AS 33.20.010(a)(3).
There was further discussion of this issue later in the hearing. Avery's attorney, Joseph Van DeMark, corrected Judge Aarseth as the judge gave a truth-in-sentencing approximation of what the sentence actually meant:
The Court: It is my understanding that Mr. Avery will have to serve approximately two-thirds of that sentence before he would be — not even going to be eligible for parole, is that right?
Van DeMark: No, there is a previous sexual offense, so he . . .
The Court: That's right.
Van DeMark: . . . will not be eligible. . . .
The Court: I miscalculated that, so there will not be an eligibility for parole so the. . . .
(Whispered conversation)
The Court: For this case strike that. Mr. Avery, you do have a right to appeal your conviction and your sentence.
Based on AS 12.55.025(j), Avery argues that this court cannot rely on Judge Aarseth's truth-in-sentencing statement to determine whether he understood the statutes restricting Avery's parole eligibility. Alaska Statute 12.55.025(j) relates to the requirement that the superior court must prepare a sentencing report that includes "the approximate minimum term the defendant is expected to serve" before becoming eligible for parole. Subsection (j) declares that the sentencing report is "for information purposes only," and that the judge's report does not "form a basis for review or appeal of the sentence imposed" or "provide the defendant with a right to . . . supervised release on mandatory parole."
AS 12.55.025(a)(3)(A) (B).
AS 12.55.025(j).
Alaska Statute 12.55.025(j), therefore, seemingly prevents the defendant from relying on a mistaken statement in the judge's truth-in-sentencing report to qualify for an early parole release. But this statute does not prevent this court from considering Judge Aarseth's remarks for another purpose, that is, to illustrate that the judge correctly understood the restrictions on Avery's parole eligibility before the end of the sentencing hearing.
Nevertheless, the record remains unclear as to whether Judge Aarseth was mistaken about Avery's parole restrictions at the time he entered his sentence and whether that misunderstanding affected the sentence he imposed. We have decided to remand this matter so that Judge Aarseth can clarify whether Avery's parole restriction would have affected the sentence he imposed. If Judge Aarseth's sentencing decision w as not affected by a misunderstanding of Avery's parole eligibility, then no further proceedings are necessary. But if Judge Aarseth's sentencing decision was affected by a mistaken understanding about Avery's parole eligibility, then he shall resentence Avery.
Avery also argues that Judge Aarseth failed to make proper findings supporting his decision to impose consecutive sentences. In order to impose consecutive sentences exceeding the maximum sentence for the defendant's single most serious crime, the sentencing judge must find that "the defendant will continue to pose a danger to the community during the extended term and that his continued isolation is actually necessary."
See DeGross v. State, 768 P.2d 134, 140 (Alaska App. 1989).
Id. at 140 (quoting Hancock v. State, 741 P.2d 1210, 1214 n. 2 (Alaska App. 1987)).
At the time of these offenses, Avery faced a presumptive sentence of 25 years on each count of sexual assault in the first degree because he had two prior felony convictions. In addition, Judge Aarseth found an aggravating factor, and was thus authorized to impose a sentence up to the maximum for each offense. At the time, the maximum sentence for sexual assault in the first degree was 40 years. Under the rule Avery relies upon, Judge Aarseth was required to make findings explaining why Avery was required to serve a composite sentence longer than 40 years.
See former AS 12.55.125(i)(1)(E) (2004).
See AS 12.55.155(a)(2).
See Former AS 12.55.125(i)(1) (2004).
Judge Aarseth did make detailed findings on the necessity for such a lengthy jail sentence. He found that Avery was a worst offender based on his willingness to use fear and violence to coerce women and his complete lack of remorse. Judge Aarseth also found that, unless Avery w as incarcerated, he would continue to assault or sexually assault any woman with whom he became involved. Finally, Judge Aarseth found that Avery could not be rehabilitated until he reached an advanced age.
These findings support Judge Aarseth's decision to impose consecutive sentences longer than the maximum sentence for Avery's most serious offense. Based on our independent review of the record, we cannot say that the composite sentence imposed by Judge Aarseth was clearly mistaken.
We notice that there is an argument that Judge Aarseth illegally suspended a portion of the sentences for sexual assault in the first degree. Under the presumptive sentencing statutes that applied to this crime, a sentencing judge was not authorized to suspend any portion of a presumptive sentence unless he found a mitigating factor under AS 12.55.155. See former AS 12.55.125(g)(1) (2004); State v. LaPorte, 672 P.2d 466, 467 (Alaska App. 1983). We do not recognize this issue as plain error because the individual sentences could easily be reformulated to yield the same composite sentence of 51 years with 10 years suspended. See Allain v. State, 810 P.2d 1019, 1021-22 (Alaska App. 1991).
Although we conclude that Avery's current sentence is not clearly mistaken, we REMAND this case to the superior court for further proceedings consistent with this opinion.