Opinion
A-13933 0310
02-08-2023
DONALD HOSIER, Appellant, v. STATE OF ALASKA, Appellee.
Robert Curran, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Alex Engeriser, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 Superior Court, First Judicial District, Juneau, Trial Court No. 1JU-17-00349 CR, Philip M. Pallenberg, Judge.
Robert Curran, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Alex Engeriser, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Donald Hosier pleaded guilty, pursuant to a plea agreement, to third-degree assault and third-degree weapons misconduct for assaulting his wife and being a felon in possession of a concealable firearm.
AS 11.41.220(a)(1)(A) and AS 11.61.200(a)(1), respectively.
Pursuant to the plea agreement, Hosier was sentenced to 5 years with 3 years suspended (2 years to serve) and 5 years' probation. However, Hosier did very poorly on probation in this case, resulting in four different revocations of his probation.
At the disposition of his fourth petition to revoke probation, the superior court imposed all of Hosier's remaining suspended time (approximately 2 years and 2 months). Hosier now appeals his sentence as excessive, arguing that the court should have imposed a lesser sentence so that he would not be subject to parole supervision after he served his time.
We note that AS 12.55.090(f) limits a sentencing judge's discretion in cases involving Alaska Criminal Rule 11 plea agreements. However, because neither party has argued that the sentencing limitations under AS 12.55.090(f) apply to this case, we do not address them here.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (citing State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
We have independently reviewed the record in this case. The record reflects that the superior court did not automatically sentence Hosier to all of his remaining suspended time. Instead, the court considered the totality of the circumstances and determined that the remainder of the suspended time was the appropriate sentence under the Chaney criteria.
See Oyoumick v. State, 185 P.3d 771, 774 (Alaska App. 2008).
Id.; see also State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005 (codifying the Chaney criteria).
Hosier's first two petitions to revoke his probation involved Hosier's continued methamphetamine use. The court imposed 3 days for the first violation and 5 days for the second violation. The third petition to revoke Hosier's probation involved Hosier absconding from probation, failing to report to his probation officer, possessing alcohol in violation of his probation conditions, possessing methamphetamine, and refusing to submit to a chemical test for alcohol and controlled substances. The superior court imposed 10 months to serve and warned Hosier that this was his "last try" at probation. After serving the 10 months and being returned to probation, Hosier violated his probation a fourth time by failing to report to his probation officer and absconding. A warrant was issued for Hosier's arrest. Hosier was arrested, posted bail, and again absconded. Hosier was ultimately found in his girlfriend's apartment, where he barricaded the door and engaged in a stand-off with the police until he was arrested.
The superior court stated that it was imposing the full amount of suspended time "primarily for the purposes of isolating Mr. Hosier to protect the public," and "[s]econdarily, for the purposes of deterrence of Mr. Hosier and others," finding that "we're past the point of rehabilitation." In imposing this sentence, the court also noted Hosier's extensive criminal history, including prior domestic violence assaults and multiple probation violations, and the fact that his recent arrest involved a stand-off with the police, similar to another armed stand-off with the police that occurred prior to his initial arrest in this case. The superior court made clear that it believed that Hosier should be subject to parole supervision, and that he should serve his good time in prison if he is unable to abide by his parole conditions.
The superior court's findings regarding the need for isolation and deterrence are well supported by the record, as are the court's findings regarding Hosier's poor prospects for rehabilitation. Given Hosier's criminal history, the seriousness of the original offense, and his poor record on probation, we conclude that the sentence is not clearly mistaken.
The judgment of the superior court is AFFIRMED.