Opinion
Court of Appeals No. A-10747 Trial Court No. 3AN-07-10231 CR No. 5869
08-08-2012
ROBERT HERNANDEZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hugh W. Fleischer, Law Offices of Hugh W. Fleischer, LLC, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Hugh W. Fleischer, Law Offices of Hugh W. Fleischer, LLC, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Robert Hernandez burglarized nine homes in Anchorage over a seven-week period, and he was convicted of twenty-nine felonies related to those burglaries. On appeal, Hernandez argues (1) that his composite thirty-five-year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; (2) that his trial counsel was ineffective; and (3) that his indictment should have been dismissed because the State failed to present exculpatory evidence to the grand jury. We conclude that the sentence of imprisonment does not constitute cruel and unusual punishment in light of Hernandez's background and the circumstances of these offenses. We conclude that Hernandez must bring his claim of ineffective assistance of counsel in a post-conviction relief application. And we conclude that Hernandez waived his attack on the indictment because he did not present this claim to the trial court or make an adequate argument in this appeal.
Background
Hernandez burglarized nine Anchorage homes, during which he stole over $125,000 worth of property including eleven firearms, two vehicles, a large amount of jewelry, an assortment of electronics, and many other items. Hernandez was subsequently indicted for nine counts of first-degree burglary, eighteen counts of second-degree theft, and two counts of first-degree vehicle theft. Following trial on these charges, a jury convicted Hernandez of all twenty-nine felony counts. At Hernandez's sentencing hearing, Superior Court Judge Philip R. Volland imposed a thirty-five-year composite sentence.
AS 11.46.300(a)(1).
AS 11.46.130(a)(1), (2).
AS 11.46.360(a)(1).
Discussion
Hernandez's thirty-five-year sentence does not constitute cruel and unusual punishment.
In his sentencing remarks, Judge Volland noted that Hernandez's criminal history included nine felonies and twenty-six misdemeanor convictions. The judge described Hernandez's conduct in this case as a pattern of repeated planned burglaries over a fairly short period of time, during which Hernandez terrorized nine families and stole at least $125,000 worth of property. The judge stated that these burglaries were especially serious because they involved the theft of eleven handguns, which "not only impacted [the] families ... , but also ... placed [the] community at risk beyond those nine families."
Judge Volland concluded that Hernandez had low prospects for rehabilitation. The judge noted that Hernandez's parole had been revoked on five different occasions and that he had walked away from numerous opportunities to participate in treatment programs. He also noted that Hernandez had been released on parole to a substance abuse treatment program shortly before committing his current offenses, but that he had walked away from the treatment center and committed the first of the nine burglaries in this case five days later.
Judge Volland found that isolation was the most important sentencing goal. The judge stated that he was "thoroughly convinced" that, if Hernandez was released that day, he would commit another crime within a short period of time. He noted Hernandez committed his first burglary thirty years earlier and that criminal activity appeared to be ingrained in his personality; burglarizing residences appeared to be Hernandez's sole method of supporting himself and his drug habit.
Based on his nine prior felony convictions, Hernandez was subject to a presumptive range of six to ten years' imprisonment for each of the nine burglary convictions in this case and a range of three to five years for each of the eighteen second-degree theft convictions and both of the vehicle theft convictions. Judge Volland found the following aggravating factors: (1) Hernandez's criminal history includes repeated instances of assaultive behavior; (2) Hernandez's conduct was among the most serious included in the definition of the offenses he committed; (3) Hernandez has three or more prior felony convictions; (4) Hernandez has a criminal history of repeated instances of conduct violative of criminal laws similar in nature to the offenses for which he was being sentenced; and (5) Hernandez's criminal history includes convictions for five or more class A misdemeanors. The judge also found that Hernandez was a worst offender based on "the number of [current] convictions ... as well as the length and breadth of Mr. Hernandez's criminal history."
See AS 11.46.300(b) (providing that first-degree burglary is a class B felony); AS 12.55.125(d)(4) (indicating that the presumptive term for a third-felony offender convicted of a class B felony is six to ten years).
See AS 11.46.130(c) (providing that second-degree theft is a class C felony); AS 11.46.360(c) (providing that first-degree vehicle theft is a class C felony); AS 12.55.125(e)(3) (indicating that the presumptive term for a third-felony offender convicted of a class C felony is three to five years).
AS 12.55.155(c)(8).
AS 12.55.155(c)(10).
AS 12.55.155(c)(15).
AS 12.55.155(c)(21).
AS 12.55.155(c)(31).
The Eighth Amendment to the United States Constitution prohibits the infliction of "cruel and unusual punishments." Included in this provision is a "narrow proportionality principle" that protects against extreme sentences that are grossly disproportionate to the severity of the crime.
See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.").
Ewing v. California, 538 U.S. 11, 20 (2003); Rummel v. Estelle, 445 U.S. 263, 271-72 (1980) (citing Weems v. United States, 217 U.S. 349, 367 (1910)).
Recent United States Supreme Court cases indicate that a lengthy sentence for a habitual felony offender does not necessarily constitute cruel and unusual punishment. In Ewing v. California, Lockyer v. Andrade, and Rummel v. Estelle, the Supreme Court upheld sentences that were potentially much greater than Hernandez's sentence for crimes far less severe than those Hernandez committed. The Court noted that a state may "place upon [a repeat felony offender] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Accordingly, a lengthy prison sentence may be justified "not merely [by] that person's most recent offense but also on the propensities he has demonstrated over a period of time during which he has been convicted of and sentenced for other crimes."
See, e.g., Lockyer v. Andrade, 538 U.S. 63, 66-68, 77 (2003); Ewing, 538 U.S. at 18, 30; Rummel, 445 U.S. at 284-85.
Andrade, 538 U.S. at 66-68, 77 (upholding two consecutive 25 years to life sentences for two theft convictions — one for shoplifting five videotapes worth $84.70 and one for shoplifting four videotapes worth $68.84); Ewing, 538 U.S. at 28, 30-31 (upholding sentence of 25 years to life for shoplifting three golf clubs worth $1200); Rummel, 445 U.S. at 263, 285 (upholding a life sentence for obtaining $120.75 by false pretenses).
Ewing, 538 U.S. at 30 (quoting Rummel, 445 U.S. at 284).
Rummel, 445 U.S. at 284; see also Ewing, 538 U.S. at 30 (noting that, although a sentence may be particularly long, a state's rational determination "that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated" is entitled to deference).
In this case, Hernandez committed nine residential burglaries and numerous theft offenses over a relatively short period of time. Hernandez has a criminal history that spans thirty years and includes nine prior felonies, twenty-six prior misdemeanors, and a demonstrated inability to comply with conditions of parole. Hernandez had been released to a treatment center for only a short period of time before he walked away and committed these offenses. Based on recent federal precedent, we conclude that Hernandez's thirty-five-year sentence does not constitute cruel and unusual punishment.
Hernandez may not assert his ineffective assistance of counsel claims on direct appeal.
Hernandez makes numerous assertions of ineffective assistance of counsel. However, claims of ineffective assistance of counsel may rarely be brought for the first time on direct appeal because, in most instances, the trial court record is inadequate to allow this court to meaningfully assess the attorney's performance. Instead, a defendant generally must bring these claims in a post-conviction relief action. Hernandez does not acknowledge this rule in his brief, and he has offered no reasons why he should not be required to bring his claims in a post-conviction relief action. We therefore decline to review his claims of ineffective assistance of counsel.
Hutchings v. State, 53 P.3d 1132, 1135-36 (Alaska App. 2002); Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
Hutchings, 53 P.3d at 1136; Sharp, 837 P.2d at 722; Barry, 675 P.2d at 1295-96.
Hernandez waived his attack on the grand jury indictment.
Hernandez makes a very brief argument that the State failed to present allegedly exculpatory evidence to the grand jury — evidence that another person had been charged with theft for possession of one of the guns taken in one of the burglaries. But Hernandez has not provided this court with a transcript of the grand jury proceedings or made any record of the information that was allegedly withheld from the grand jury. We conclude that this claim is waived because of this inadequate presentation. It also appears that Hernandez waived this claim because he did not raise it in the trial court.
See Lau v. State, 175 P.3d 659, 662 (Alaska App. 2008) (holding that the defendant waived his arguments regarding grand jury testimony and evidence because the appellate record he provided did not include a transcript of the grand jury proceedings); Buckwalter v. State, 23 P.3d 81, 88-89 (Alaska App. 2001) (finding that the defendant waived a claim involving an unrelated case where the defendant failed to provide a sufficient record for meaningful review of that claim).
See Buckwalter, 23 P.3d at 84 (holding that the defendant waived a claim that the state failed to present exculpatory evidence to the grand jury where the defendant did not raise that claim in the trial court); Schumacher v. State, 11 P.3d 397, 399 (Alaska App. 2000) (finding that the defendant waived his claim that the state failed to present exculpatory evidence where the defendant did not move to dismiss the indictment before trial); Buffington v. State, 745 P.2d 78, 78-79 (Alaska App. 1987) (finding that the defendant waived his claim that the state failed to present exculpatory evidence to the grand jury because he did not raise the issue before trial); Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981) (holding that the defendant forfeited a claim that the state did not present exculpatory evidence to the grand jury when he did not raise the issue before trial).
Hernandez also alleges many other instances of misconduct by the trial court or the prosecutor. But he offers no analysis or authority to support these allegations, and he does not mention them at all in the argument section of his brief. He has also waived these claims.
See Petersen v. Mut. Life Ins. Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory statement in ... a brief, the point will not be considered on appeal.").
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Conclusion
We AFFIRM the superior court's judgment and sentence.