Opinion
A-14042 A-14051 & A-14052 0373
06-05-2024
CHARLES JAMES DUSHKIN, Appellant, v. STATE OF ALASKA, Appellee.
Justin N. Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Homer, Trial Court Nos. 3HO-20-00328 CR, 3HO-19-00396 CR, &3HO-21-00221 CR Bride Seifert, Judge.
Justin N. Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, 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.
SUMMARY DISPOSITION
Charles James Dushkin was convicted, following a jury trial, of two counts of fourth-degree assault for hitting his friend and threatening a taxi driver. He was also convicted of violating conditions of release for drinking alcohol while he was on pretrial release. The district court sentenced Dushkin to 200 days and 150 days, respectively, for the assault convictions and 45 days for the violating conditions of release conviction, for a composite sentence of 395 days. The district court granted the State's petitions to revoke probation in two different cases for this conduct and sentenced Dushkin to 100 days and 420 days, respectively. His composite sentence was 915 days (2 years and 185 days).
AS 11.41.230(a)(1), (3).
AS 11.56.757(a).
Dushkin argues that his sentence is excessive for three reasons. First, he asserts that the district court failed to justify imposing a sentence above the Neal-Mutschler ceiling. Second, he contends that the district court improperly stacked his sentences. Third, he claims that the court failed to consider his rehabilitative potential. Because we conclude that the district court thoroughly explained why it imposed this sentence based on the Chaney criteria, we reject each of these arguments.
The State argues that we lack jurisdiction to consider Dushkin's sentencing arguments because his 45-day violating conditions of release sentence and 100-day probation revocation sentence are below this Court's 120-day jurisdictional threshold for misdemeanor sentences. Because Dushkin's composite sentence exceeds 120 days, we conclude that we do have jurisdiction to hear his sentencing arguments. See Peters v. State, 943 P.2d 418, 420-21 (Alaska App. 1997) (interpreting AS 22.07.020, Appellate Rule 215(a), and AS 12.55.120 and holding that "the defendant may appeal a misdemeanor sentence to this court if the aggregate unsuspended terms imposed on all counts exceed 120 days" (emphasis added)).
The Neal-Mutschler rule, as clarified in Phelps v. State, requires a court imposing a composite active sentence greater than the maximum sentence for the defendant's single most serious offense to justify doing so based on either the protection of the public or another sentencing goal. "[A]n express finding is not always required" if "[t]he record contains ample evidence that [the defendant] presents a risk of continued criminal conduct which would seriously threaten the public safety" or another sentencing goal.
Phelps v. State, 236 P.3d 381, 382, 393 (Alaska App. 2010).
Waters v. State, 64 P.3d 169, 174 (Alaska App. 2003).
Dushkin argues that the district court imposed a sentence above the Neal-Mutschler ceiling without making sufficient findings. Dushkin's sentence exceeds the Neal-Mutschler ceiling, but the district court's remarks support imposition of this sentence. The court expressed that the incident was "very frightening," and that Dushkin was "scaring" and "hurting people in the community." It found that Dushkin's behavior was not "de minimis." The court emphasized Dushkin's consistent unacceptable behavior, "multiple criminal activities, [and] failure to have rehabilitation." Basing its decision on the sentencing goals of isolation, deterrence, and community condemnation, the court explained that "right now I'm seeing that you're dangerous to the community and this is the appropriate sentence." These sentencing remarks demonstrate that the court found the lengthy composite sentence was necessary to protect the public and isolate Dushkin.
Next, Dushkin argues that the district court improperly stacked his sentences by imposing fully consecutive sentences without providing a justification. In fashioning a composite sentence for multiple convictions, the sentence for the defendant's most serious offense serves as the foundation, and "principled enhancements" may be added for the defendant's other offenses. However, sentencing courts may not simply "stack" consecutive terms for each crime in a series of crimes.As we just explained, the district court's remarks demonstrate that it carefully considered the record and selected a composite sentence it found appropriate. We do not find that the court engaged in improper stacking.
See Phelps, 236 P.3d at 385-86.
Id.
Finally, Dushkin argues that the district court "fail[ed] to consider Dushkin's rehabilitation potential." However, the court explicitly evaluated Dushkin's rehabilitative potential and explained why this was not a weighty factor. The court noted that Dushkin's current and past offenses demonstrated multiple instances of assaultive conduct and resisting arrest, describing it as "a continuing pattern of dangerousness and instability." The court evaluated Dushkin's prior experience on misdemeanor probation, finding that he had "no rehabilitative aspect or improvement." It concluded that it would focus on isolation, deterrence, and community condemnation over rehabilitation. Given these sentencing remarks, we conclude that the court did not improperly fail to consider Dushkin's rehabilitative potential.
See State v. Graybill, 695 P.2d 725, 729 (Alaska 1985); Evan v. State, 899 P.2d 926, 931 (Alaska App. 1995).
The judgment of the district court is AFFIRMED.