Opinion
Court of Appeals No. A-8687.
January 18, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge. Trial Court No. 3AN-01-7853 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Jeremiah Jay Haag was convicted of first-degree robbery, evidence tampering, and fourth-degree controlled substance misconduct (because the property taken during the robbery was prescription medication). In Haag v. State, 117 P.3d 775 (Alaska App. 2005), we affirmed Haag's convictions but we remanded his case to the superior court for resentencing, because we concluded that the sentencing judge had increased Haag's sentence for the robbery in violation of Haag's right to jury trial under Blakely v. Washington.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Specifically, the problem was that the sentencing judge added 3 years of suspended imprisonment to the 7-year presumptive term that applied to Haag's robbery conviction based on an aggravating factor that was proved to the judge by clear and convincing evidence, rather than being proved to a jury beyond a reasonable doubt. When the case returned to the superior court, the parties stipulated that Haag should receive the unadjusted 7-year presumptive term, thus mooting any controversy respecting the aggravating factor. With this alteration in his robbery sentence, Haag's composite sentence for his three offenses is now 8½ years to serve, with an additional 1 year suspended.
Haag, 117 P.3d at 781-82.
Id. at 782.
We now turn to the issue that we left undecided in our first decision: whether Haag's composite sentence for these three crimes is excessive. When we review a composite sentence imposed for two or more criminal convictions, we assess whether the combined sentence is clearly mistaken, given the whole of the defendant's conduct and history.
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
At the time of his initial sentencing, Haag was 28 years old. He had no prior felonies, and only a minor misdemeanor record. Haag argues that, because he was "a youthful first felony offender [who committed] a typical burglary", he should not have received more than 7 years to serve (the applicable presumptive term for his robbery conviction).
But the facts of this case show that Haag's offenses were more serious than a "typical burglary". Haag and an accomplice perpetrated an armed home invasion, during which they stole a neighbor's prescription pain-killers at gunpoint — thus committing both first-degree (armed) robbery and fourth-degree controlled substance misconduct.
Haag points out that no one was harmed during the robbery. But the infliction of injury would have aggravated Haag's offense under AS 12.55.155(c)(1). The absence of injury does not mean that the offense is mitigated.
Coles v. State, 64 P.3d 149, 151 (Alaska App. 2003); see also Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983) (holding that, because the definition of sexual assault does not require proof that the victim suffered injury, the defendant's infliction of injury is an aggravating factor).
It is true that a sentencing judge must have good cause to impose a composite sentence that exceeds the presumptive term for the defendant's most serious offense. But here, Haag's objective in committing the robbery was to take unauthorized possession of prescription drugs — itself a separate offense. Moreover, Haag also committed the offense of evidence tampering (based on his efforts to hide evidence of the robbery from the police). Having independently reviewed the record, we conclude that the superior court had good cause to impose a composite term of 8½ years to serve.
Farmer v. State, 746 P.2d 1300, 1301 (Alaska App. 1987).
The superior court's sentencing decision is AFFIRMED.