Opinion
Court of Appeals No. A-9722.
April 25, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-1481 Cr.
Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, 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 STEWART, Judges.
MEMORANDUM OPINION
Over the course of a day and a half, Gordon K. Carvalho engaged in a series of criminal acts — beginning with a nighttime residential burglary and armed robbery, and ending with a 90-minute standoff with state troopers (before his ultimate surrender). Carvalho was charged with thirty separate offenses, but he eventually agreed to plead no contest to five representative charges — first-degree robbery, third-degree weapons misconduct (possession of a concealable firearm by a felon), first-degree eluding, third-degree assault, and first-degree vehicle theft (which encompassed Carvalho's theft of four separate vehicles) — and the State dismissed the remaining charges. Carvalho further agreed that he would receive a composite sentence of between 15 and 20 years' imprisonment.
AS 11.41.500(a)(1), AS 11.61.200(a)(1), AS 28.35.182(a), AS 11.41.220(a)(1)(A), and AS 11.46.360(a)(1), respectively.
Superior Court Judge Eric Smith ultimately sentenced Carvalho to 12 years' imprisonment for the first-degree robbery, and to consecutive sentences of 2 years each for the other four felonies. Thus, Carvalho received a composite sentence of 20 years to serve, the upper boundary of his negotiated sentencing range.
Carvalho raises two issues in this appeal. He asserts that the superior court improperly rejected a proposed mitigating factor relating to his robbery sentence, and he further asserts that his composite sentence of 20 years is excessive.
During the sentencing proceedings, Carvalho asserted that his sentence for first-degree robbery should be mitigated under AS 12.55.155(d)(9); that is, he asserted that his conduct was among the least serious included within the definition of first-degree robbery. Judge Smith concluded that Carvalho had failed to prove this mitigator, and Carvalho challenges that decision on appeal.
In order to explain why we affirm Judge Smith's decision, we must summarize the facts relating to the first-degree robbery charge.
Around 3:00 a.m. on May 5, 2006, Carvalho broke into the residence of Gabriel Morris. Carvalho was apparently acquainted with Morris's housemate, and Morris had seen Carvalho once before, but Morris did not know Carvalho. Carvalho turned on the lights and demanded that Morris give him a ride. Morris refused. Carvalho then offered to pay for the ride. Morris still refused. At this point, Carvalho picked up a loaded gun that was lying near Morris's bed. Carvalho chambered a round, pointed the gun at his own head, and threatened to kill himself. In response, Morris told Carvalho where to find the keys to his car. Carvalho left Morris's room, still carrying the gun, and then he drove away in Morris's car.
Morris called the authorities. Within a few minutes, the state troopers found Morris's car stuck in the mud near the home of Lydia Hunt. Hunt told the troopers that a man (later identified as Carvalho) had just tried to steal her Ford Explorer. When Hunt went out to confront this man, he pointed a gun to his own head and stated that he would kill himself if Hunt reported the incident to the police. The man then ran away. Twenty-five minutes later, another resident of the same area, Mark Best, reported that his truck had been stolen from his garage. The stolen truck contained two cell phones — and Carvalho was later identified as the thief, based in part on the fact that the thief used these stolen cell phones to call Carvalho's cell phone (which Carvalho had left in Morris's house).
At the sentencing hearing, Carvalho's attorney argued that Carvalho's robbery of Morris was among the least serious because Carvalho had initially entered Morris's house unarmed, apparently planning only to ask for a ride, and even offering Morris money in return for the ride. The defense attorney argued that these facts showed that Carvalho's ensuing act of robbery was an unplanned, spur-of-the-moment crime. The defense attorney also noted that Carvalho had never directly threatened Morris, but had instead pointed the gun at his own head. The defense attorney further noted that Carvalho visited Morris's house the next day and voluntarily returned Morris's handgun. Under the Alaska Supreme Court's decision in Michael v. State, 115 P.3d 517 (Alaska 2005), the litigation of aggravating and mitigating sentencing factors under AS 12.55.155(c) — (d) presents both questions of fact and questions of law.
To the extent that the decision hinges on questions of historical fact — the precise nature of the defendant's conduct, or the defendant's mental state, or the defendant's background and history — an appellate court is to defer to the sentencing judge's findings on these matters unless the record shows that the sentencing judge's findings are clearly erroneous. Michael, 115 P.3d at 519.
But Michael holds that the ultimate assessment — i.e., the ultimate decision as to whether given facts establish a particular aggravator or mitigator — is a question of law. Thus, an appellate court reviews this aspect of the decision de novo (that is, without deference to the sentencing judge's decision). Id. at 519-520.
Here, Carvalho was allowed to plead no contest to a single offense, first-degree robbery, even though the undisputed record shows that Carvalho also broke into Morris's residence in the middle of the night and stole a firearm. Under the plea agreement in this case, Carvalho was not convicted of these accompanying offenses, but the fact that he committed these other crimes provides a basis for concluding that Carvalho's conduct in committing the robbery was not among the least serious within the definition of that offense.
In addition, Carvalho was high on drugs at the time of the robbery, and Judge Smith noted that Carvalho had a history of violent drug-related crimes.
Given these circumstances, we conclude that Carvalho's conduct in this case was not among the least serious within the definition of first-degree robbery. We therefore affirm Judge Smith's ruling on this proposed mitigator.
Carvalho's remaining claim is that his composite sentence of 20 years to serve is excessive. But as explained above, Carvalho agreed that he could be sentenced to as much as 20 years' imprisonment when he accepted the plea bargain. Because of this, Carvalho does not have the right to appeal his sentence on the ground of its alleged excessiveness. AS 12.55.120(a); Alaska Appellate Rule 215(a)(1); Brockway v. State, 37 P.3d 427, 430-31 (Alaska App. 2001).
In these circumstances, Alaska Appellate Rule 215(k) directs us to refer Carvalho's sentencing argument to the supreme court — where it will be treated as a petition for sentence review under Appellate Rule 215(a)(5).
To conclude: We AFFIRM the superior court's rejection of Carvalho's proposed mitigating factor, and we refer Carvalho's remaining claim (the alleged excessiveness of his composite sentence) to the Alaska Supreme Court.