Opinion
Court of Appeals No. A-11276 Trial Court No. 3AN-99-1455CR No. 5945
05-01-2013
HARRY O. DANIELS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David R. Weber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John Darnall, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: David R. Weber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John Darnall, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
ALLARD, Judge.
In 2001, Harry O. Daniels pled no contest to manslaughter pursuant to a plea agreement and received a sentence of 20 years with 10 years suspended, 10 years to serve. In 2011, after multiple parole and probation violations related primarily to marijuana and alcohol use, Daniels rejected any further probation. The superior court imposed the remaining suspended time (approximately 9 years 3 months).
On appeal, Daniels contends that the superior court applied the wrong legal standard and that the sentence is excessive. We remand the case to the superior court for a fuller explanation of the sentence imposed.
Background
In 1997, the Anchorage police found the dead body of 68 year-old Phillip Harry in an Anchorage apartment. The victim had been struck with a blunt object in the head. There was a vodka bottle next to the body and empty bottles around the apartment.
As part of their investigation, the police interviewed Harry Daniels. Daniels admitted to drinking with Harry and a woman named Kate Saganna on the day Harry was killed. Daniels had a limited memory of the day's events. He recalled that Saganna had a bottle of liquor and that they were drinking at Harry's apartment. The police told Daniels that Saganna had told them that Daniels had killed Harry when she was out of the room. Daniels denied fighting with Harry and had no memory of Harry dying. Daniels admitted that he carried a rock in a handkerchief for protection.
Daniels was later charged with second-degree murder, manslaughter, and tampering with physical evidence. In 2001, he pled no contest to manslaughter and the remaining charges were dismissed. A first felony offender, Daniels faced a presumptive term of 5 years for the manslaughter charge if no aggravating factors existed and a maximum sentence of 20 years. As part of the plea agreement, Daniels stipulated to the statutory aggravating factor AS 12.55.155(c)(10) ("most serious") and agreed to an aggravated sentence of 20 years with 10 years suspended, 10 years to serve. Daniels agreed to 10 years probation with an additional agreement that the probationary term would be terminated early at 5 years if he was successful at probation.
See AS 11.41.120(b) (1997) (defining manslaughter as class A felony); AS 12.55.125(c) (1997) (maximum term of 20 years for class A felony; presumptive term of 5 years for first-time felony offender).
Daniels agreed to waive a presentence report and his change of plea and sentencing hearing was very brief. Superior Court Judge Michael L. Wolverton found that Daniels's no contest plea was "voluntarily and knowingly made" and that the negotiated sentence "satisfies the sentencing criteria."
Daniels's conduct on parole and probation
In October 2005, Daniels was released on mandatory parole and probation supervision in Barrow, where his mother resided. He completed a substance abuse education class and a mental health evaluation as recommended. However, Daniels had a difficult time abstaining from marijuana use and complying with the treatment recommendations. He repeatedly asked to be taken to jail. As early as 2007, he was refusing any future supervision. After multiple parole revocations, Daniels ended up serving several years in custody for parole violations. The State filed one petition to revoke probation during this time but later withdrew the petition.
After his re-release on probation, Daniels violated his probation conditions several times: In early 2010, after Daniels drank alcohol to excess, the superior court imposed 90 days of his suspended time and ordered him to undergo a new substance abuse treatment evaluation. In the middle of 2011, the Barrow superior court imposed six months of Daniels's suspended time after he missed three meetings with his probation officer, repeatedly tested positive for marijuana, and failed to comply with his psychiatrist's treatment recommendations.
After serving the 6 months imposed by the Barrow court, Daniels was released in Palmer but required to report to Barrow for probation. He failed to report as directed. Daniels was found a month later in a homeless camp by Anchorage police during an unrelated search. He had alcohol on his breath and admitted to consuming alcohol. In the amended petition to revoke probation, the probation officer recommended that the court impose the remainder of Daniels's suspended time (approximately 9 years, 3 months).
Prior to any adjudication, Daniels informed the court that he was rejecting any further probation. The case was then set before the superior court judge who had originally sentenced Daniels under his plea agreement so that the original sentencing judge could impose a final sentence. The parties agreed that the only matter for the court to decide was whether to impose the full amount of suspended time. The prosecution argued that the court should follow the probation officer's recommendation and impose all of the remaining time. The defense argued that less time should be imposed because Daniels's prior criminal history was minimal, Daniels had not committed any new crimes on probation or parole, and his violations primarily involved marijuana and alcohol use.
The superior court imposed all of the remaining suspended time. The court offered the following explanation of its decision:
This was one of those problematic cases where it happens from time to time. I don't think anybody will ever know exactly what went on in that room that night when the unfortunate victim lost his life. Mr. Daniels was facing
significant exposure. It's completely understandable why he and counsel at the time chose to proceed as he chose.
My view is this: do I think that Mr. Dan[iels] - or have I ever thought that Mr. Daniels is a bad human being? No. I didn't think so then, I don't think so now. And is the consumption of alcohol at the level he's been consuming and the marijuana the end of the world? No. But this was a sentence that was meaningfully imposed and agreed upon. And as far as deterrence to others similarly situated, it simply makes no sense to - it never has and it's not going to say, you know, Judge, I want you to treat me like somebody who's had a stellar record on probation, done everything that's appropriate, and the reward was a reduction in the ultimate sentence, even though there was a rejection of probation as opposed to Mr. Daniels who doesn't have a stellar record.
And what's the concern? The concern is that, right over here, just a - down the street a ways in 1997, Mr. Daniels - and I - he was intoxicated to the point where he just didn't know what happened, and I believed him, and somebody ended up dead. And if he is rejecting probation, I find that the only appropriate result at this point is to impose the balance of the sentence flat time.
Daniels appeals, arguing that the superior court used the wrong legal standard and that imposing the maximum sentence for manslaughter in his case is excessive.
A remand for a fuller explanation of the sentence imposed is required
Under Alaska law, when a defendant rejects probation, the sentencing judge may not automatically impose all of the defendant's suspended jail time. This is true even if the original suspended sentence was part of a plea agreement. Instead, the judge must consider the totality of the circumstances, including the defendant's background, the original offense, and the defendant's conduct under supervision. The judge must then independently evaluate the totality of those circumstances in light of the Chaney sentencing criteria, now codified in AS 12.55.005, and impose a final sentence of imprisonment in accordance with those criteria. A defendant's refusal of probation cannot, in itself, be the determinative factor.
See State v. Henry, 240 P.3d 846, 848-49 (Alaska App. 2010); see also State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002) ("[P]robation is a contract, and because this contract allows a judge to control a defendant's life in ways that the defendant may deem more burdensome than normal criminal penalties, a defendant is free to refuse probation and to insist on a normal sentence."); DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997) (holding that, when a defendant refuses probation, the sentencing judge "[must] not automatically impose all [of the defendant's] previously suspended time" but must carefully evaluate the case under the Chaney criteria and then impose a sentence based on the totality of circumstances).
Henry, 240 P.3d at 848-49.
Demario, 933 P.3d at 562.
Id.
Id.
On appeal, Daniels contends that the sentencing judge did not independently evaluate the Chaney criteria before imposing the remaining suspended time. We agree with Daniels that the court's remarks about the original sentence being "meaningfully imposed and agreed upon" could be read to suggest that the court erroneously viewed the original suspended time as already part of a complete sentence and as part of a "bargained for" exchange, the consequences of which Daniels would need to face now that he was unwilling to complete "his part" of the bargain. But as this Court recently clarified in State v. Henry, the fact that suspended time may have been part of a plea agreement does not alter a sentencing court's obligation to evaluate the totality of the circumstances and independently determine an appropriate final sentence of imprisonment under the Chaney criteria. Because it is not clear whether an independent evaluation occurred here, we remand for clarification of the standard used and the sentence imposed and, if appropriate, a resentencing.
Henry, 240 P.3d at 846, 848-49.
We note that the current record on appeal contains very little information about the original crime, Daniels's past history, or Daniels's conduct on supervision. Although the sentencing judge remarked that he remembered the case "quite clearly" from his original sentencing, the absence of information in the record makes it particularly difficult for this Court to determine the basis for the sentence or the reasons it was imposed.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (when reviewing a sentence for excessiveness, the appellate court is required to conduct an independent review of the record to determine if the sentence is clearly mistaken).
On a separate issue, we note that the imposition of the remaining 9 years 3 months resulted in a final sentence that was the maximum sentence for manslaughter, 20 years to serve. When the imposition of suspended time results in a maximum sentence, the sentencing court is required to make a worst offender finding if one has not previously been made. The worst offender finding can be based on the original offense, the offender's background, or the offender's conduct on supervision (or a combination of all three). Here, the sentencing judge did not make an explicit finding of worst offender nor do we perceive any implicit finding of worst offender in the judge's comments.
Crouse v. State, 736 P.2d 783, 786 (Alaska App. 1987).
See, e.g., Id at 787; Espinoza v. State, Mem. Op. & J. No. 4642, 2002 WL 31714919, at *3 (Alaska App. Dec. 4, 2002); Modig v. State, Mem. Op. & J. No. 2929, 1994 WL 16196261, at *2 (Alaska App. June 8, 1994).
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Conclusion
We REMAND to the superior court for clarification of the sentence imposed and, if appropriate, a resentencing.