Opinion
Court of Appeals No. A-10098; No. 5423.
January 7, 2009.
Appeal from the District Court, Third Judicial District, Anchorage, Richard W. Postma Jr., Judge, Trial Court No. 3AN-07-13612 Cr.
Thomas V. Smith, Gorton, Logue, Graper, Anchorage, for the Appellant. Amy K. Doogan, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Eric J. Fischer pleaded no contest to misdemeanor stalking under the Anchorage municipal ordinances, and he received a sentence of 360 days' imprisonment with 200 days suspended — i.e., 160 days to serve. Fischer contends that this is excessive.
AMC § 8.10.020.B.
The record shows that, over a period of six months beginning in May 2007, Fischer attempted to initiate a romantic relationship with a woman, J.J., who is confined to a wheelchair. Fischer wrote numerous letters to her and he made telephone calls to her home about three times a week.
Early on, J.J. made it clear to Fischer that she was not interested in having a romantic relationship with him, but Fischer persisted. In several of his letters, Fischer explicitly expressed a sexual interest in J.J. .
Many times, J.J. told Fischer to stop contacting her. And in some of his letters, Fischer acknowledged that he knew J.J. did not want him to contact her. On June 3rd, Fischer wrote: "[I]t's only been [four] days since I wrote you last, but you're not answering my phone calls." On June 19th, he wrote: "I realize I promised not to write you again, but hopefully you will read [and] accept this letter." Two weeks later, on July 2nd, Fischer wrote: "I know I promised not to write you again, butplease hear me out." (Underlining in the original)
Additionally, beginning in June, the tone of Fischer's letters began to change. On June 19th, he wrote: "I'm really surprised that you voluntarily let . . . Satan use your womanly charms in an attempt to destroy my marriage to a good Christian woman. I know [that] you were `friendly' to me in an attempt to manipulate me." Then, on August 31st, Fischer wrote: "Satan has been influencing me. He knows my weakness is sex, especially attraction for pretty young women."
As explained above, J.J. told Fischer several times that she wanted him to stop contacting her. Fischer eventually stopped his letters and telephone calls in September and October 2007 — but then he resumed his contacts in November. In a November letter to J.J., Fischer wrote: "I can't push you out of my heart", and he offered to take care of J.J. and her young daughter. Fischer also sent candy and flowers to J.J., and wrote that he thought about her and prayed for her at least every night.
In December, J.J. contacted the police because she was becoming increasingly anxious about Fischer's contacts, and because she was frightened that Fischer would cause her physical harm to pursue his goal of having a romantic relationship with her. J.J. also told the police that she was concerned for the safety of her young daughter.
Following this police contact, the Anchorage prosecutor's office charged Fischer with stalking. Fischer ultimately pleaded no contest to this charge.
At sentencing, J.J. told the district court that Fischer had threatened her. J.J. related how, in a phone call, Fischer had said, "I'll show you what a threat is; you won't threaten me again"— accompanied by a promise that he would "be right over". J.J. told the court that she feared for her life and for her daughter's safety. The municipal prosecutor told the court that J.J.'s daughter was in counseling due to her fear of Fischer.
For his part, Fischer told the court that he had long believed that the romantic attraction he felt for J.J. was mutual — so, when J.J. told him that she wanted no more contact, Fischer decided to wait a couple of months and then try again, to see if her feelings had changed. Fischer admitted that, in retrospect, this was the wrong choice — a "tragic mistake".
District Court Judge Richard W. Postma Jr. found that Fischer was aware as early as June 2007 ( i.e., w ithin the first month of his six-month-long contacts w ith J.J.) that J.J. wanted the letters and telephone calls to stop. Judge Postma also found a "disturbing escalation" in the tone of Fischer's letters. In Fischer's initial letters, he expressed sexual desire for J.J.; but in his later letters, he claimed that J.J. was to blame for his emotions and his behavior. In particular, Judge Postma noted the letter in which Fischer blamed J.J. for manipulating him by "let[ting] Satan use your womanly charms to attempt to destroy my marriage to a good Christian woman."
In addition, Judge Postma found that Fischer's resumption of contacts with J.J. after the two-month hiatus in September and October 2007 showed that Fischer was not able to control his compulsion to have contact with J.J. .
In sentencing Fischer, Judge Postma emphasized the sentencing goals of isolation, deterrence, and rehabilitation. He imposed a sentence of 160 days to serve and an additional 200 days suspended, conditioned on Fischer's good behavior during 10 years of probation.
Fischer argues that this sentence is excessive for two reasons.
First, Fischer asserts that he received a "virtual" maximum sentence. Relying on Alaska cases which declare that maximum sentences should be reserved for worst offenders, Fischer argues that his sentence is excessive because he could not be categorized as a "worst offender", given the nature of his conduct and the fact that this is his first criminal conviction.
In Alaska, a sentencing judge normally may not impose a maximum sentence for an offense without finding that the defendant is properly categorized as a "worst offender". Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971); Baker v. State, 182 P.3d 655, 658 (Alaska App. 2008).
But Fischer did not receive a maximum sentence. The maximum sentence for his crime is 1 year to serve, and Fischer received only 160 days to serve. The fact that Fischer's total sentence (the combination of time to serve and suspended jail time) approaches 1 year does not make his sentence a "maximum" sentence under Alaska law — and, thus, Judge Postma did not have to make a "worst offender" finding before imposing this sentence.
See Ferreira v. State, 602 P.2d 803, 806 (Alaska 1979); Spearman v. State, 543 P.2d 202, 205 (Alaska 1975).
Fischer also argues that his conduct was less serious than the stalking conduct exhibited by the defendants in Petersen v. State, 930 P.2d 414 (Alaska App. 1996) (a case that resolved the appeals of three separate defendants).
It is true that the defendants in Petersen (Petersen, Larson, and Colbry) committed more serious acts of stalking — including acts of physical assault and violations of court orders. But Petersen and Colbry were convicted of first-degree ( i.e., felony) stalking, and they faced a maximum penalty of 5 years' imprisonment. The third defendant, Larson, was also charged with felony stalking, although he ultimately entered a plea to misdemeanor stalking. Moreover, the only term of imprisonment that we expressly ruled on in Petersen was Petersen's sentence of 3 years to serve — and we held that this sentence was not excessive.
Fischer notes that, unlike the three defendants in Petersen, he did not violate any court protective or restraining order. But if Fischer had violated a protective order, he would have been guilty of felony stalking under state law — and he would have faced substantially higher penalties.
Fischer also observes that he did not physically assault or follow J.J. — he only called her and wrote her letters. But under the Anchorage ordinance, stalking need not take the form of assault or physical coercion. The ordinance prohibits a course of "non-consensual contact"— including sending letters or e-mails, or making telephone calls — if this course of conduct puts the victim in reasonable fear of death or physical injury.
AMC § 8.10.020.B.
Fischer does not assert that his letters and telephone calls to J.J. — a woman confined to a wheelchair — would not make a reasonable person in J.J.'s situation apprehend a threat of physical injury. Indeed, Fischer could not properly assert this — because he pleaded no contest to the charge, thus conceding each element of the crime for purposes of sentencing.
See Ashenfelter v. State, 988 P.2d 120, 124 (Alaska App. 1999); Scott v. State, 928 P.2d 1234, 1237-38 (Alaska App. 1996).
Fischer suggests that Judge Postma was clearly wrong in finding that there was a "disturbing escalation" in Fischer's contacts with J.J., and in finding that Fischer could not control his compulsion to contact her. Fischer notes that his letters to J.J. became less frequent over time. But Judge Postma's finding of a "disturbing escalation" was not based on the frequency of Fischer's contacts, but rather on the content and tone of those contacts. As Judge Postma noted, Fischer's letters first expressed sexual desire for J.J. and then later blamed her for Fischer's own thoughts and behavior. Similarly, Judge Postma's finding that Fischer could not control his compulsion was not based on an increasing frequency of Fischer's contacts with J.J., but rather on the fact that Fischer resumed his contacts with J.J. after a two-month hiatus.
Lastly, Fischer argues that Judge Postma was unjustified in discounting his prospects for rehabilitation. He suggests that the judge was required to place a greater emphasis on rehabilitation in his case because his offense stemmed from a psychological abnormality.
We acknowledge that the Alaska Supreme Court has indicated that "[t]he goal of rehabilitation should be a primary consideration in fashioning a sentence" in cases where "psychiatric problems, rather than a general criminal intent, lie at the root of criminal behavior." But aside from the inferences that might be drawn from Fischer's conduct, there is no testimony or other evidence in the record to suggest that Fischer suffers from a psychological abnormality. In other words, there is no evidence that Fischer suffers from some independent mental disorder apart from whatever mental compulsion he felt to pursue J.J. . Given these circumstances, and given the crime that Fischer was convicted of, one might reasonably argue that Fischer's psychological state is indistinguishable from the "general criminal intent" required to prove stalking.
Ferreira, 602 P.2d at 805 (citing H ansen v. State, 582 P.2d 1041, 1047 (Alaska 1978); Mattern v. State, 500 P.2d 228, 235 (Alaska 1972)).
Moreover, the record indicates that Judge Postma carefully considered the goal of rehabilitation. In his sentencing remarks, Judge Postma recognized that an effort to rehabilitate Fischer "ha[d] to be made"— because Fischer would soon return to society.
As the judge noted, Fischer faced (at most) a total of 360 days' imprisonment, even if his probation was later revoked and all of his suspended time was imposed. Judge Postma concluded that both Fischer's 160 days to serve and the remaining 200 days hanging over his head might motivate Fischer to re-think his conduct, or at least to control it. But the judge declared that, "for this type of offense, rehabilitation is up to the offender."
We conclude that Judge Postma's findings of fact are supported by the record, that Judge Postma actively considered the necessary sentencing goals, and that the sentence he imposed on Fischer is not clearly mistaken.
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).
Accordingly, the sentencing decision of the district court is AFFIRMED.