Opinion
A-13425 6986
12-29-2021
TONY EARL BULLOCK JR., Appellant, v. STATE OF ALASKA, Appellee.
Keri Ann Brady, Brady Law Office, San Diego, California, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
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, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-13-10106 CR, Anchorage, Michael L. Wolverton, Judge.
Appearances:
Keri Ann Brady, Brady Law Office, San Diego, California, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM DECISION
HARBISON, Judge.
Tony Earl Bullock Jr. pleaded guilty, pursuant to a plea agreement, to two consolidated counts of first-degree sexual assault and one count of fourth-degree assault.
AS 11.41.410(a)(1) and AS 11.41.230(a)(1), respectively.
As part of the plea agreement, Bullock admitted to the conduct alleged in the charging documents and waived his right to a jury trial on all Blakely aggravating factors. He understood that each of the first-degree sexual assault convictions was subject to a presumptive range of either 20 to 30 years or 25 to 35 years, depending on whether he used a deadly weapon in the commission of the offense. However, Bullock disputed that the higher range applied, and the parties agreed that the court would determine which presumptive range applied - i.e., whether there was sufficient evidence to establish that Bullock possessed a firearm during the commission of the offense. Bullock also proposed a statutory mitigator under AS 12.55.155(d)(3) and requested referral to the three-judge sentencing panel on five grounds.
AS 12.55.155(d)(3) ("the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct").
Specifically, Bullock argued (1) that the minimum possible presumptive sentence would be manifestly unjust; (2) that his ineligibility for good-time credits or probation would be manifestly unjust; (3) that he had extraordinary potential for rehabilitation; (4) that he demonstrated exemplary conduct during his presentence incarceration; and (5) that he was subject to "harsher than normal" incarceration.
At the sentencing hearing, the superior court found that Bullock possessed a gun during one of the sexual assaults, resulting in a higher presumptive range of 25 to 35 years for that count. It declined to find Bullock's proposed statutory mitigating factor, declined to refer the case to the three-judge sentencing panel, and imposed a composite sentence with an active term of 32¼ years to serve.
AS 12.55.125(i)(1)(B).
Bullock now appeals, arguing that the superior court erred by (1) applying an incorrect presumptive sentencing range; (2) finding that there was insufficient evidence to establish his proposed statutory mitigating factor; (3) denying Bullock's request for referral of his case to the three-judge sentencing panel; (4) imposing an excessive sentence; and (5) relying on extra judicial facts in imposing the sentence.
For the reasons explained in this opinion, we reject these arguments and affirm Bullock's sentence.
Facts and proceedings
As we have explained, Bullock pleaded guilty pursuant to an agreement with the State and he admitted to the underlying conduct alleged in the charging documents. Because the superior court's sentencing decisions were based in part on the information in the complaint, we must describe those facts in some detail.
According to the charging documents, in the early morning of July 16, 2013, M.S. called the police to report that she had been sexually assaulted. She stated that she had been walking home in the Mountain View neighborhood of Anchorage when she noticed a man, who would later be identified as Bullock, trailing her. As she turned a corner, Bullock approached her, produced what appeared to be a black handgun and "told her that he was going to fuck her." Bullock made M.S. walk to a secluded spot and then forced her to engage in two separate acts of fellatio and one act of genital intercourse. M.S. called the police immediately after Bullock left.
According to the charging documents, M.S. said Bullock used a handgun. However, the documents also stated that M.S. told the forensic nurse who examined her that she thought the handgun "looked fake." The State later stipulated that M.S. told a police officer who interviewed her that she did not know if the gun was real or fake.
The charging documents further indicated that, the next day, another woman, K.P., called the police to report that she had been sexually assaulted. She reported that she had been walking home in Mountain View when she noticed someone, who would later be identified as Bullock, following her. Bullock approached her from behind and grabbed her pony tail. He produced a black handgun, directed her to a secluded spot, and made her engage in fellatio and genital intercourse. Bullock also took K.P.'s cell phone. K.P. called the police as soon as she got home.
Three days later, Anchorage Police Officer Michael Wisel was on patrol in Mountain View and observed a person who matched the descriptions K.P. and M.S. had given and who appeared to be following another woman. The officer made contact with the man, who identified himself as Bullock. Bullock gave his name and contact information to the officer and agreed to be photographed. He did not have a handgun on him.
The charging documents also stated that, a few weeks later, a third woman, K.O., called the police to report that someone had attempted to sexually assault her. K.O. was in Mountain View and noticed that a man, later identified as Bullock, had walked past her multiple times. He then approached and demanded fellatio. He took her to a secluded space, punched her in the face, and then took a condom out of its wrapper. K.O. fled while Bullock was taking out the condom. She then immediately called the police.
The State charged Bullock with five counts of first-degree sexual assault (for the two separate acts of fellatio with M.S., the genital intercourse with M.S., the genital intercourse with K.P., and the fellatio with K.P.); one count of attempted first-degree sexual assault (for the attempted fellatio with K.O.); two counts of third-degree assault (for placing M.S. and K.P. in fear by means of a dangerous instrument); one count of fourth-degree assault (on alternative theories of causing injury to K.O. or placing K.O. in fear of injury); and one count of first-degree robbery (for taking K.P.'s cell phone while armed with a deadly weapon).
AS 11.41.410(a)(1), AS 11.41.410(a)(1) & AS 11.31.100(a), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(1) & (3), and AS 11.41.500(a)(1), respectively.
As we have explained, Bullock pleaded guilty to two consolidated counts of first-degree sexual assault (one for the conduct against M.S. and one for the conduct against K.P.) and to one count of fourth-degree assault (for the conduct against K.O.).
The superior court sentenced Bullock to 35 years with 10 years suspended (25 years to serve) for the sexual assault against K.P., 30 years with 10 years suspended (20 years to serve) for the sexual assault against M.S., and one year flat for the assault against K.O. The court ran 6¼ years of the sentence for the sexual assault against M.S. and the whole year sentence for the assault against K.O. consecutive to the 25 years to serve for the sexual assault against K.P., for a total time to serve of 32¼ years.
Why we conclude that the superior court properly applied a presumptive sentencing range of 25 to 35 years for the sexual assault against K.P.
On appeal, Bullock first claims that the superior court applied an incorrect presumptive sentencing range for one of his sexual assault convictions.
The presumptive sentencing range for first-degree sexual assault when the defendant has no prior felony convictions is generally 20 to 30 years. But if "the defendant possessed a firearm, used a dangerous instrument, or caused serious physical injury during the commission of the offense," the presumptive range is 25 to 35 years.As explained above, while Bullock admitted the facts in the complaint, he reserved the ability to argue that the State had not proved he possessed a gun during the commission of the offenses.
AS 12.55.125(i)(1)(A)(ii).
AS 12.55.125(i)(1)(B).
At the sentencing hearing, the State called K.P. to testify, but M.S. did not testify at the hearing. Based on K.P.'s testimony, the superior court found that Bullock used a gun when he sexually assaulted K.P. The court sentenced Bullock to 35 years with 10 years suspended for his sexual assault of K.P. and 30 years with 10 years suspended for his sexual assault of M.S.
On appeal, Bullock argues that there was insufficient evidence to support the court's finding that Bullock possessed a firearm when he sexually assaulted K.P., particularly because the charging documents established that he did not have a firearm when he was contacted by Officer Wisel and that the police never located a handgun.
When we evaluate the sufficiency of the evidence, we view the evidence - and all reasonable inferences arising from that evidence - in the light most favorable to the factfinder's ruling and ask whether a reasonable factfinder could have reached that conclusion. We do not evaluate the weight of the evidence or witness credibility, as those are questions for the factfinder.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009)).
Morrell, 216 P.3d at 576 (citing Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990)).
Here, K.P. testified that Bullock used a handgun when he sexually assaulted her. She explained that, although she was facing away from Bullock most of the time, she felt the gun against her head and saw a glimpse of it through her peripheral vision. She testified that she was a gun owner and that the object Bullock pressed to her head felt like a real gun to her. When asked if it could have been an Airsoft pistol, K.P. testified that she was familiar with Airsoft pistols, including having held one, and that there was no chance that the object pressed to her head was an Airsoft pistol. Finally, she explained that, although she only glimpsed the gun through her peripheral vision, she could see that it was entirely black and had no orange on it (as an Airsoft gun typically does).
We conclude that, when viewed in the light most favorable to the court's ruling, this evidence was sufficient for the court to find that Bullock possessed a gun during the commission of his sexual assault of K.P. We accordingly reject Bullock's claim in this regard.
Bullock also raises a separate challenge to the court's application of the higher presumptive range. Bullock argues that the court may have impermissibly relied on the fact that he possessed a gun both to apply the higher presumptive range under AS 12.55.125(i)(1)(B) and to aggravate the sentence pursuant to AS 12.55.155(c)(4).
AS 12.55.155(c)(4) ("the defendant employed a dangerous instrument in furtherance of the offense").
But we have reviewed the record and we conclude that, when viewed in context, it is clear that the superior court relied on Bullock's possession of the gun only to apply the higher presumptive sentencing range. We note that the court sentenced Bullock within that range (to a term of 35 years with 10 years suspended). The court did not impose a sentence above the top end of the presumptive range, as it would have been entitled to do if it had applied a statutory aggravating factor.
Because the superior court did not rely on Bullock's possession of the gun both to apply the higher presumptive term and also to impose a sentence that exceeded that term, we reject this claim of error.
Why we conclude the superior court did not err when it found the mitigator in AS 12.55.155(d)(3) did not apply
Bullock's next claim is that the superior court erred in finding that there was insufficient evidence to establish his proposed statutory mitigating factor. Under AS 12.55.155(d)(3) the court may impose a sentence below the presumptive range if "the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct." We have explained that this mitigating factor addresses imperfect defenses - defenses "that involve good faith but unreasonable beliefs that criminal conduct is necessary to avoid a greater evil." Thus, evidence that "the defendant in good faith subjectively believed facts which if true would have established one of the defenses justifying his conduct under the revised code, but which the judge or jury concludes would have been unreasonable under the circumstances" may warrant mitigation of a presumptive sentence.
Bell v. State, 658 P.2d 787, 791 (Alaska App. 1983).
Id.
At sentencing, Bullock asked the court to find that he established an imperfect involuntary intoxication defense and therefore should find this mitigating factor. Bullock argued that he committed his crimes because he had been using "spice" (also known as synthetic marijuana) and that he had a good faith, but unreasonable, belief that his use of spice would not cause him to become violent. As support for this request, Bullock presented testimony and a report from Dr. Richard Lazur - an expert in the treatment, recidivism rates, and dangerousness of sex offenders - and the testimony of Michelle Brown - an expert in substance abuse counseling.
Lazur testified that he met with Bullock in custody to conduct a sex offender risk evaluation. According to Lazur, Bullock said that he was smoking spice before the sexual assaults. Bullock told Lazur that a voice in his head told him to attack the women, and that he felt like he was out of his body during the assaults. Lazur testified that people who are on spice can lose awareness of what they are doing and go into a delusional state where they are controlled by auditory hallucinations. Lazur diagnosed Bullock with PTSD and other mental disorders and concluded that he was likely self-medicating at the time of the offenses.
Michelle Brown had not evaluated Bullock, but she testified about spice generally. She explained that, although spice was called synthetic marijuana, it was not actually marijuana and instead was "a bunch of chemicals." She also testified that spice use was popular in the military because people assumed it was like marijuana, except legal, available at gas stations, and undetectable. As for the effects of spice use, Brown testified that spice could cause people who had never previously been violent to act violently and to block out memories.
Bullock argued that he had proven an imperfect involuntary intoxication defense, and that the court should find that the AS 12.55.155(d)(3) mitigating factor applied to his offenses. According to Bullock, he committed the offenses while under the influence of spice. He argued that because spice was legal and accessible, and was branded as a "synthetic marijuana," he had a good faith, but mistaken, belief that it would not cause him to be violent.
In response, the State called Officer Wisel and K.P. to testify. Officer Wisel testified that Bullock had not appeared to be under the influence of any drugs during his contact with him. K.P. testified that, during the assault, Bullock was "calm," "collected," and "knew exactly what he was doing."
The superior court found that Bullock had not proved by clear and convincing evidence that he committed his crimes because he was under the influence of spice. The court credited the testimony of Officer Wisel and K.P., and it reasoned, "It would seem remarkable that a bag of spice could cause exactly the same type of behavior on two consecutive nights against two individuals." The court therefore declined to find the mitigating factor.
On appeal, Bullock argues this was error.
When reviewing the superior court's rejection of a mitigating factor on appeal, we review the court's factual findings as to the defendant's conduct for clear error and then review the legal conclusion as to whether those facts establish the mitigator de novo.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
In this case, the superior court weighed the evidence and found that Bullock had not shown he committed the crimes because of his use of spice. We have reviewed the record and we cannot say that this finding was clearly erroneous, nor that the court's reason for declining the (d)(3) mitigator was in error. Thus, we reject Bullock's claim on appeal.
Bullock also argues that the superior court clearly erred by characterizing his behavior as "stalking." But each of the victims reported that Bullock seemed to be following them, and Officer Wisel reported that Bullock appeared to be following a woman when he contacted him. This characterization, therefore, was not clearly erroneous.
Why we conclude that the superior court did not err by declining to refer Bullock's case to the three-judge sentencing panel on the basis of extraordinary potential for rehabilitation
Bullock next claims that the superior court erred by finding that he did not have extraordinary potential for rehabilitation.
During the sentencing proceedings, Bullock argued that he had established the non-statutory mitigating factor of extraordinary potential for rehabilitation, and he therefore requested that his case be referred to the statewide three-judge sentencing panel. As support for this assertion, Bullock again relied on the testimony and report of Dr. Lazur, as well as the testimony of Probation Officer Elaine Hart.
Lazur testified that he conducted several risk assessments and that Bullock had low scores for recidivism on the assessments. He also testified that he believed Bullock was "an individual who cares for other people," which was not typical of most sex offenders.
But Lazur admitted that, "Certainly, if he's using drugs again, I - I wouldn't want to be around him." And Lazur's written report described a test that suggested Bullock was at very high risk for perpetrating sexual violence. The report explained that the factors that led to this high score were caused by actions Lazur believed Bullock took while on spice.
Elaine Hart testified that she was one of Bullock's institutional probation officers. She explained that Bullock made every possible effort to participate in rehabilitation programs and had a "commendable" lack of disciplinary issues while in custody. She also noted that Bullock "definitely" had rehabilitative potential, but she declined to label Bullock's rehabilitative potential as "extraordinary" when directly asked to do so.
The superior court declined to find that Bullock had extraordinary potential for rehabilitation. The court accepted Dr. Lazur's testimony that Bullock was in a lower category than the average person in terms of the risk of recidivism, but it noted that Dr. Lazur had testified that he would not want to be around Bullock if Bullock started using drugs again and that Hart did not believe that Bullock had "extraordinary" potential for rehabilitation.
On appeal, Bullock argues that the superior court erred by rejecting this non-statutory mitigating factor and declining to refer his case to the three-judge sentencing panel on this basis.
With regard to non-statutory mitigating factors, we review a sentencing court's factual findings for clear error and then review the legal conclusion as to whether those facts establish the mitigator de novo.
Olmstead v. State, 477 P.3d 656, 662 (Alaska App. 2020) (citing Michael, 115 P.3d at 519).
Here, Bullock's legal claim to have extraordinary potential for rehabilitation rested, in part, on his factual claim that his spice use caused him to commit the sexual assaults. But the superior court affirmatively rejected this factual argument when it rejected the imperfect involuntary intoxication mitigating factor, and, as we explained above, it did not clearly err in doing so.
We accordingly find no error in the superior court's rejection of Bullock's claim that he had extraordinary potential for rehabilitation.
Why we conclude that the superior court did not err by declining to refer Bullock's case to the three-judge sentencing panel on the basis of manifest injustice, and did not impose an excessive sentence
On appeal, Bullock claims that the superior court erred by declining to refer his case to the statewide three-judge sentencing panel based on manifest injustice. Bullock notes that the superior court did not expressly find that it would not be manifestly unjust to impose a sentence within the presumptive range or to restrict Bullock's eligibility for early release, and Bullock therefore requests that we remand for the superior court to make express findings. Bullock also argues his composite sentence was excessive. We conclude the court was not clearly mistaken when it implicitly rejected Bullock's claim of manifest injustice and imposed a sentence within the presumptive range.
As explained above, Bullock pleaded guilty to three charges -first-degree sexual assault of both M.S. and K.P. and fourth-degree assault of K.O. The presumptive sentencing range for the sexual assault of K.P. was 25 to 35 years (because the superior court found that Bullock possessed a firearm during the sexual assault), and the presumptive sentencing range for the sexual assault of M.S. was 20 to 30 years. The maximum sentence for the assault of K.O. was one year. In addition, at least one-fourth of one of the sentences for first-degree sexual assault, and at least one day of the sentence for fourth-degree assault, were required by statute to be consecutive to one of the first-degree sexual assault charges.
AS 12.55.125(i)(1)(A)(ii), (B).
AS 12.55.135(a).
AS 12.55.127(c)(2)(E)-(F).
The superior court imposed the minimum presumptive sentence for each of the two sexual assaults and also imposed the minimum portion of the sentence, one-fourth, to be served consecutively. But it imposed the maximum sentence for the misdemeanor assault and required that entire sentence to be served consecutive to the other sentences. As a result, the active component of Bullock's sentence was 32¼ years.
Alaska Statute 12.55.165(a) allows a sentencing court to refer a case to the three-judge panel if the court finds that manifest injustice would result from imposition of a sentence within the presumptive range. In the present case, although the superior court did not expressly find that a sentence within the presumptive range would not be manifestly unjust, it imposed a composite sentence above the minimum presumptive sentence. It therefore must have concluded that a sentence below the presumptive range was not necessary to avoid manifest injustice. Likewise, the superior court's decision to sentence Bullock within the presumptive range implies that Bullock's ineligibility for early release while serving this sentence would also not result in manifest injustice.
We review a sentencing court's decision that there is no manifest injustice requiring referral to the three-judge panel under the "clearly mistaken" standard. We also use the "clearly mistaken" standard when reviewing a claim that a sentence is excessive. This standard contemplates that reasonable judges, confronted with identical facts, may differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences.
Leavitt v. State, 806 P.2d 342, 345 (Alaska App. 1991) (citing Dancer v. State, 715 P.2d 1174, 1177 (Alaska App. 1986)).
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Here, Bullock admitted to the conduct underlying five counts of first-degree sexual assault, one count of attempted first-degree sexual assault, two counts of third-degree assault, one count of fourth-degree assault, and one count of first-degree robbery. These offenses occurred on three different days and involved three different, apparently random, victims. Additionally, the superior court found that Bullock possessed a firearm during his crimes on at least one of these days.
Under these circumstances, the sentence imposed by the superior court for the three convictions to which Bullock pleaded guilty was not clearly mistaken.
Finally, we note that Bullock proposed two additional, novel non-statutory mitigators, and, on appeal, he argues that we should remand for further findings because the superior court did not expressly reject these mitigators. But it is the duty of a litigant to obtain a ruling in the trial court in order to preserve an issue for appellate review, and Bullock did not seek clarification from the superior court when it failed to rule on these requests for referral to the three-judge panel. Bullock must therefore show plain error.
Pierce v. State, 261 P.3d 428, 430-31 (Alaska App. 2011).
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
In order to refer a case to the three-judge panel on the basis of a non-statutory mitigator, the sentencing court must find that manifest injustice would result from failure to adjust the presumptive range based on that mitigator. Because a sentence within the presumptive range was not clearly mistaken in this case, we cannot say that the superior court plainly erred by not referring the case to the three-judge panel based on Bullock's proposed novel non-statutory mitigators.
AS 12.55.165(a); Garner v. State, 266 P.3d 1045, 1051 (Alaska App. 2011) (Mannheimer, J., with whom Bolger, J., joins, concurring) ("Because individual sentencing judges are allowed to consider non-statutory sentencing factors when deciding what sentence to impose within the range of sentences allowed to them under the presumptive sentencing laws, AS 12.55.175(b) must be interpreted in light of this fact. Consequently, when AS 12.55.175(b) speaks of cases where manifest injustice would result from 'failure to consider' a non-statutory sentencing factor, the statute is really referring only to those cases where manifest injustice would result from failure to adjust the otherwise available sentencing range because of a non-statutory sentencing factor."); Bossie v. State, 835 P.2d 1257, 1259 (Alaska App. 1992) ("The question, then, is whether [the judge] was clearly mistaken when he concluded that the non-statutory mitigator, evaluated together with the other circumstances of the case in light of the Chaney sentencing criteria, did not plainly call for some adjustment (no matter how small) of the 5-year presumptive term.").
Thus, we conclude that Bullock's sentence was not excessive, and the superior court did not err in declining to refer his case to the three-judge sentencing panel on any of his proposed bases.
Why we conclude that the superior court did not improperly rely on extrajudicial facts when sentencing Bullock
Bullock's sentencing hearing took place over several days. During the second-to-last day, K.P. gave a victim impact statement, and the prosecutor represented that he did not expect either of the other two victims to participate. He explained that, while he believed his office had been diligent in reaching out to them, he was not sure whether all options had been exhausted because he was new to the case. The court declined to proceed further until the prosecutor had verified that the victim contact requirements had been met. The judge explained that victim impact statements were "vitally important" and referenced the recent non-retention of a colleague for "proceeding really without a victim's input." The prosecutor then verified that a paralegal had attempted to make contact with the two other victims. The superior court sentenced Bullock the next day.
On appeal, Bullock argues that this reference to the non-retention of the sentencing judge's colleague constituted an inappropriate reliance on extrajudicial facts at sentencing. But this passing comment was made while the judge was explaining his decision not to proceed without confirmation of victim contact and was made the day before sentencing. It was not a part of the court's sentencing decision. Bullock's argument therefore fails.
Bullock also requests that we order the superior court to store his sentencing memorandum with the rest of the case file if we remand the case to the superior court, noting that the sentencing memorandum appears in the appellate record with the exhibits and not with the case file. Bullock provides no authority for his request that we micromanage the superior court's record keeping in this way. In any event, we are not remanding this case, so we need not address this argument.
Conclusion
For the reasons provided in this opinion, the judgment of the superior court is AFFIRMED.