Opinion
Court of Appeals No. A-9912.
January 16, 2008.
Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge, Trial Court No. 2NO-06-782 Cr.
Robert D. Lewis, Lewis Thomas, Nome, for the Appellant. John A. Earthman, District Attorney, Nome, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Joachim K. Carlisle appeals the sentence that he received for the crime of attempted first-degree arson. For the reasons explained here, we affirm Carlisle's sentence.
On March 8, 2006, Carlisle set fire to a house where his ex-girlfriend and her new boyfriend were sleeping. Fortunately, a passerby observed flames on the side of the house; he entered the residence and awoke the occupants before they suffered injury.
When the police interviewed Carlisle about this incident, he admitted that he had set the fire because he was "green-eyed" with jealousy. Carlisle told the police that he first tried to start the fire with kerosene — and then, when that did not ignite, he poured gasoline on the house.
Carlisle was initially charged with first-degree arson under AS 11.46.400(a) — intentionally damaging property by fire and, in so doing, recklessly placing another person in danger of serious physical injury. He later reached a plea agreement with the State.
Under the terms of this agreement, Carlisle pleaded no contest to the reduced charge of attempted first-degree arson, and he stipulated to aggravating factor AS 12.55.155(c)(8) (a history of repeated assaultive conduct), based on his six prior convictions for assault and attempted assault. The State, in addition to reducing the arson charge to attempted arson, agreed to drop its prosecution of Carlisle for a separate pending charge of third-degree assault (a charge that was based on Carlisle's act of threatening another jail inmate with a paring knife).
Attempted first-degree arson is a class B felony. Carlisle had a prior felony conviction for third-degree assault, so he was a second felony offender for presumptive sentencing purposes. As a second felony offender, Carlisle faced a presumptive sentencing range of 4 to 7 years' imprisonment. Because of Carlisle's stipulation to aggravator (c)(8), the superior court was authorized to sentence him to any term of imprisonment up to the 10-year maximum for a class B felony.
See AS 11.46.400(b) (first-degree arson is a class A felony) and AS 11.31.100(d)(3) (an attempt to commit a class A felony is a class B felony).
AS 12.55.125(d)(3).
See AS 12.55.155(a)(1) (authorizing imposition of any sentence of imprisonment up to the maximum if aggravating factors are proved) and AS 12.55.125(d) (establishing the maximum term of imprisonment for a class B felony as 10 years).
Carlisle was 23 years old at the time of his sentencing, but he already had an extensive criminal record. In addition to his prior felony conviction for third-degree assault, Carlisle had ten prior misdemeanor convictions — including five prior convictions for fourth-degree assault: one in 2001, one in 2002, two in 2003, and one in 2006. For purposes of this sentence appeal, it is significant that four of Carlisle's misdemeanor assault convictions, as well as his prior felony assault, involved domestic violence. In addition, Carlisle had convictions for violating the conditions of his release and violating a domestic violence protective order.
At Carlisle's sentencing hearing, his attorney conceded that Carlisle's criminal history was "extensive". The defense attorney also acknowledged that Carlisle's current offense appeared to be "a more serious" form of attempted arson — because, as a factual matter, Carlisle had committed a completed arson. Nevertheless, the defense attorney argued that Carlisle should receive a sentence toward the middle of the prescribed presumptive range: a sentence of 5 to 6 years to serve.
Superior Court Judge Ben J. Esch found that Carlisle had "a significant substance abuse problem" and that Carlisle's criminal history demonstrated that he had "poor anger impulse control". Judge Esch also found, based on Carlisle's past convictions for violating a protective order and conditions of release, that Carlisle was unwilling or unable to obey court orders — thus "demonstrat[ing] that he has . . . a poor prognosis for successful probation".
Judge Esch acknowledged that Carlisle had expressed remorse for his crime, but the judge noted that Carlisle had made similar expressions of remorse when he was convicted of prior crimes. Based on this history, Judge Esch concluded that when Carlisle said he was sorry, he was not expressing concern for his victims, but rather concern for himself.
Judge Esch noted that Carlisle's act of arson in the present case "b[ore] a great deal of similarity to the assaultive conduct that [Carlisle had committed] in the past" — because, like Carlisle's past assaultive crimes, the arson "was alcohol-related, impulsive, [and] triggered by jealousy". The judge concluded that "when [Carlisle] gets angry, when he gets upset [and] intoxicated, [then] he's willing to [do] whatever it takes to try to scare other people, or . . . make people bend their will to his."
Judge Esch concluded that the primary sentencing goals in Carlisle's case were isolation, re-affirmation of societal norms, and deterrence of others. The judge expressed doubt whether any sentence he might impose would deter Carlisle personally from committing further crimes:
The Court: I don't think there is anything in the tools that society gives me, as a judge, that is likely to produce any [personal] deterrence in Mr. Carlisle. I think the only thing that is going to deter Mr. Carlisle is when he grows up.
When [Mr. Carlisle] gets old, . . . at some point in [his] life, [he will] decide, "I'm really tired of going to jail." . . . [A]t that point, when he gets upset, and when it's a question of, "Do I pick up a knife and shake it at somebody? Do I pick up a gas can and splash it on their house? Do I pick up a gun and shoot somebody?" — maybe then he'll realize [that] it may not be worth it. [But] I don't think [he is] there yet. [And] I think rehabilitation [as a result of this sentence of imprisonment] is equally unlikely.
Based on this evaluation of Carlisle and his criminal history, Judge Esch imposed a sentence of 7 ½ years' imprisonment, all to serve.
In his brief to this Court, Carlisle argues that Judge Esch should have ascribed more importance to the fact that no one was hurt by Carlisle's act of arson, and that the house itself sustained little physical damage. But as the State points out, this was due to the fortunate happenstance that a passerby spotted the flames, awoke the occupants of the house, and alerted the fire department.
Carlisle also argues that, even though he conceded aggravator (c)(8), Judge Esch should not have given this factor much weight. Carlisle contends that his history of assaultive conduct was not particularly pertinent to his conduct in the present case — because, in the present case, he did not engage in a direct physical assault on his ex-girlfriend and her new companion. Carlisle argues that his act of arson was not an assault, but merely "[an example of] bad judgment and a foolish response to what he perceived to be a personal betrayal by his girlfriend".
Judge Esch's analysis of the case (described above) rebuts this suggested view of Carlisle's act of arson and its relation to his prior criminal history. We have independently reviewed the record, and we conclude that it amply supports the judge's analysis.
In sum, we conclude that Carlisle's sentence of 7 ½ years to serve is not clearly mistaken. Accordingly, the sentencing decision of the superior court is AFFIRMED.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).