Opinion
Court of Appeals No. A-10370.
September 30, 2009.
Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge, Trial Court No. 1JU-08-948 Cr.
Kevin Higgins, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angie Kemp, Assistant District Attorney, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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
Lee A. Grierson received a composite sentence of 6 months to serve for three counts of fourth-degree criminal mischief and one count of fifth-degree criminal mischief. These convictions were based on Grierson's acts of spray-painting swastikas and offensive messages on the windows and walls of several businesses in Juneau.
AS 11.46.484(a)(1) and AS 11.46.486(a)(2), respectively.
In this appeal, Grierson contends that his 6-month sentence is excessive. For the reasons explained here, we conclude that Grierson's sentence is not clearly mistaken, and we therefore affirm the district court's sentencing decision.
In the early morning of June 2, 2008, over a period of about thirty minutes, Grierson spray-painted graffiti on four Juneau businesses. The graffiti included smiley faces, swastikas, and the following phrases: "we only like white people", "fucking Nazis", "fuck u Nazis", "fascist pigs", and "we're Nazis". Overall, Grierson caused an estimated $570 in damage.
A jury convicted Grierson of three counts of fourth-degree criminal mischief and one count of fifth-degree criminal mischief. Fourth-degree criminal mischief is a class A misdemeanor for which the maximum term of imprisonment is 1 year. Fifth-degree criminal mischief is a class B misdemeanor for which the maximum term of imprisonment is 90 days. Thus, Grierson faced a maximum composite sentence of 3 years and 90 days.
AS 11.46.484(b) (classifying the offense as a class A misdemeanor) and AS 12.55.135(a) (specifying a maximum sentence of 1 year's imprisonment for class A misdemeanors).
AS 11.46.486(b) (classifying the offense as a class B misdemeanor) and AS 12.55.135(b) (specifying a maximum sentence of 90 days' imprisonment for class B misdemeanors).
Before sentencing, and acting on the advice of his lawyer, Grierson submitted to a mental health evaluation. The clinician who performed this evaluation described Grierson as a homeless, forty-year-old Anglo male who had been unemployed for the past four months, but who apparently had a solid employment history as a carpet layer and tradesman before that time. The clinician provided the following summary of Grierson's mental health status:
[Mr. Grierson] is extremely paranoid and terrified of the people he encounters in his community. He believes that an intricate and complex conspiracy involving nearly everyone that he comes in contact with exists with the expressed purpose of terrorizing him and making him fail in life. This stress affects his reasoning, judgment and his insight. [His thought process] does not include the more typical hallucinations and/or non-linear thought processes of a person with schizophrenia, but the presence of the paranoia and secret language point to this diagnosis.
. . .
[Mr. Grierson] is extremely at high risk for [becoming] gravely disabled because of his fixed paranoid delusional system. He has other strengths that allow him to function in society, but with a high level of suffering.
The clinician reported that Grierson posed a low risk of danger to himself or others, and that Grierson was "very open about his feelings of his current life, which he feels is torture." But the clinician concluded that Grierson's mental health prognosis was "poor" because he was "not willing to accept mental health services". She noted that Grierson, by his own report, had lied to clinicians who previously interviewed him at the jail and in the emergency room, "because he [understands] that [mental health clinicians] will view his experience as pathological instead of true reality". The clinician also reported that Grierson "resists any treatment (medication or inpatient) that will interrupt his belief system".
When he sentenced Grierson, District Court Judge Keith B. Levy emphasized the sentencing goals of rehabilitation and deterrence ( i.e., deterrence of Grierson and others from similar misconduct). Judge Levy acknowledged that "there is some evidence, based on what's been submitted, that mental health [problems] played a role in some of this." But the judge found that Grierson's treatment prognosis was not good, primarily because of his continued unwillingness to accept mental health services. Judge Levy therefore rejected a purely probationary term:
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); these sentencing goals are now codified in AS 12.55.005.
The Court: I think that some not insignificant amount of jail time is appropriate, because I think it goes not just to deterrence but also to rehabilitation in the sense that, perhaps, being in a structured environment, you may have the opportunity . . . to get some kind of help and treatment that you need.
Judge Levy also rejected Grierson's argument that his crimes were less serious because the only injured parties were corporations:
The Court: This is not — I do not view these acts as a harmless prank. The term "hate crime" is a very loaded term. I gather from your statement that that was not your intent. But the things that you wrote, and the symbols that you painted, are extreme symbols of hate, and they do have an impact on the community. There are Holocaust survivors in this community. There are people who are significantly impacted by that kind of thing. Whether it was your intent or not, it was at least reckless. And these are symbols of intolerance and hate.
And my — if I felt that you were more willing to get the treatment that might keep you from coming back here, I might have a — it might be a different result. But I think you're not willing to do that, and I think you have a — your criminal history is not insignificant. I think the fact [that you have a previous] conviction for a felony goes to that as well.
For the fourth-degree criminal mischief counts, Judge Levy sentenced Grierson to concurrent terms of 1 year's imprisonment with 6 months suspended, and he imposed a concurrent term of 3 months' imprisonment with 2 months suspended for the fifth-degree criminal mischief count.
In challenging this sentence, Grierson first contends that Judge Levy was mistaken when the judge found that he was unwilling to participate in mental health treatment. Grierson points to two portions of the record which, he argues, contradict the judge's finding: (1) the fact that, prior to sentencing, Grierson willingly and honestly participated in a mental health assessment, and (2) the fact that Grierson told the court, at the sentencing hearing, that he was willing to participate in mental health services.
Although these facts may demonstrate some willingness on Grierson's part to participate in mental health services, they do not establish that Judge Levy's finding was clear error. Other portions of the record support Judge Levy's conclusion. In particular, as we have described, the mental health clinician who evaluated Grierson in advance of the sentencing hearing reported that Grierson was not willing to accept mental health services — because he understands that mental health professionals "will view his experience as pathological instead of true reality", and because Grierson is not willing to undertake "any treatment . . . that will interrupt his [paranoid] belief system".
Judge Levy could reasonably conclude that Grierson would be willing to participate in mental health services only to the extent that those services did not "interrupt his belief system", and that he would refuse to follow recommendations for in-patient treatment or for medication that would alter his perceptions of the world.
Grierson's next claim is that Judge Levy erred by imposing a sentence of imprisonment for the primary purpose of rehabilitation. Grierson points to Judge Levy's statement that 6 months of jail time was appropriate "because I think it goes not just to deterrence but also to rehabilitation in the sense that, perhaps, being in a structured environment, you may have the opportunity . . . to get some kind of help and treatment that you need."
In Pears v. State, the Alaska Supreme Court declared that rehabilitation was not a proper basis for lengthening a prison term, or for selecting imprisonment as opposed to probation. The supreme court approvingly quoted the reasoning of the federal district court in United States v. Bergman:
698 P.2d 1198 (Alaska 1985).
Id. at 1204.
[N]obody who would not otherwise be locked up should suffer that fate on the incongruous premise that it will be good for him or her. Imprisonment is punishment. Facing the simple reality should help us to be civilized. It is less agreeable to confine someone when we deem it an affliction rather than a benefaction. If someone must be imprisoned — for other, valid reasons — we should seek to make rehabilitation resources available to him or her. But the goal of rehabilitation cannot fairly serve in itself as grounds for the sentence to confinement.
Pears, 698 P.2d at 1204, quoting United States v. Bergman, 416 F. Supp. 496, 499 (S.D. N.Y. 1976).
This Court has applied the Pears rule in past decisions. In Allen v. State, 759 P.2d 541, 552 (Alaska App. 1988), we reversed a sentence because there was insufficient support in the record for the sentencing judge's conclusion that the defendant's risk of re-offending made it necessary to isolate him until his treatment was fully completed. And in an unpublished case, Nash v. State, Alaska App. Memorandum Opinion No. 3064 (January 11, 1995), 1995 WL 17220354 at *1, this Court reversed a sentence because the record strongly suggested that the sentencing judge substantially increased the length of the defendant's term of incarceration for the purpose of making rehabilitative programs available to him.
But in another unpublished case, Andrews v. State, Alaska App. Memorandum Opinion No. 2968 (August 10, 1994), 1994 WL 16196521, this Court rejected the defendant's claim that the sentencing judge impermissibly relied on the defendant's need for psychological treatment as a justification for lengthening the sentence. We concluded that the sentencing judge's remarks, viewed as a whole, showed that the judge believed that the defendant was a danger to the community, that a lengthy prison term was justified by the need to isolate him, and that a 6-year term was " consistent with the coordinate sentencing goal of rehabilitation." 1994 WL 16196521 at *1-2, 3 (emphasis added).
Grierson's case is most like Andrews. Judge Levy's sentencing remarks indicate that he imposed 6 months to serve for the purpose of deterring Grierson and others from similar crimes, and to express the community's condemnation of Grierson's misconduct. Although Judge Levy's remarks show that he believed that this sentence was consistent with the goal of rehabilitation, and might help to achieve it, the sentencing record as a whole does not suggest that Judge Levy imposed or extended Grierson's prison term for the primary purpose of rehabilitating him.
Grierson's final claim is that his sentence violates the "principle of parsimony" articulated by the Alaska Supreme Court in Pears — the principle that "the defendant's liberty should be restrained only to the minimum extent necessary to achieve the objectives of sentencing."
Pears, 698 P.2d at 1205.
The decision concerning the priority and relationship of the various goals of sentencing, as they apply to the facts of a particular case, is primarily a matter for the sentencing judge. The sentencing judge is not required to emphasize the goal of rehabilitation in all cases, or even in all cases involving first offenders.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Rudden v. State, 881 P.2d 328, 330 (Alaska App. 1994).
Asitonia, 508 P.2d at 1026; Rudden, 881 P.2d at 330.
As we have already discussed, when Judge Levy decided to impose a composite 6 months to serve, he explicitly emphasized the sentencing goals of special and general deterrence — that is, the goal of deterring Grierson in the future, and the goal of deterring others from similar misconduct. The judge also implicitly referred to the need to express the community's condemnation of Grierson's offenses when the judge noted that Grierson's graffiti contained "extreme symbols of hate" (namely, swastikas), and that his written messages were intended to label other people as racists or Nazis.
Moreover, Grierson is not a first offender. Although Grierson has no prior history of vandalism or other similar property offenses, he has a significant criminal history. Grierson has a 1999 felony conviction for eluding a police officer and a 1987 conviction for criminal trespass. He also has a substantial history of driving-related offenses: driving without a valid operator's license in 1992; driving with a suspended license in 1993, 1997, and 1998; violating a condition of release by driving with a suspended license in 1998; and refusal to submit to a breath test in 2006.
As Judge Levy mentioned, the record strongly suggests that Grierson's offenses stemmed from, or were at least influenced by, his untreated mental health problems — in particular, his persistent belief that he is being persecuted, and that he is the victim of "an intricate and complex conspiracy". But as we discussed earlier, the record also shows that Grierson has resisted treatment for these mental health problems.
The question is whether, given the record as a whole, Judge Levy's sentencing decision was clearly mistaken. We have examined the record, and we can not say that Judge Levy's decision was clearly mistaken. Accordingly, the sentencing decision of the district 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).