Opinion
Court of Appeals No. A-11564 No. 6280
02-03-2016
TODD L. JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Amy Williams, Assistant District Attorney, and Craig W. Richards, 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 authority for any proposition of law. Trial Court No. 1JU-12-780 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Louis J. Menendez, Judge. Appearances: Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Amy Williams, Assistant District Attorney, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Todd L. Johnson appeals the sentence he received for third-degree controlled substance misconduct (sale of methamphetamine) and third-degree weapons misconduct (felon in possession of a concealable firearm).
Third-degree controlled substance misconduct is a class B felony, while third-degree weapons misconduct is a class C felony. Johnson was a third felony offender for presumptive sentencing purposes, so he faced a presumptive sentencing range of 6 to 10 years' imprisonment for the drug offense, and a presumptive range of 3 to 5 years' imprisonment for the weapons offense.
AS 11.71.030(c).
AS 11.61.200(i).
AS 12.55.125(d)(4) and AS 12.55.125(e)(3), respectively.
The superior court sentenced Johnson to 10 years with 4 suspended (i.e., 6 years to serve) for the drug offense, and to 5 years with 2 suspended (i.e., 3 years to serve) for the weapons offense. The court made 1 year of the weapons sentence consecutive to the drug sentence, so Johnson received a composite 7 years to serve.
In his brief to this Court, Johnson argues that the superior court committed error by rejecting two mitigating factors that he proposed with respect to his drug offense: AS 12.55.155(d)(9) (conduct among the least serious within the definition of the offense), and AS 12.55.155(d)(13) (small quantity).
When we initially reviewed the sentencing record, we discovered a potential problem in the superior court's ruling on the "small quantity" mitigator: neither the superior court nor the parties discussed our clarification of this mitigator in Pocock v. State, 270 P.3d 824 (Alaska App. 2012). We therefore remanded Johnson's case to the superior court for reconsideration of this mitigator.
The superior court reconsidered the proposed "small quantity" mitigator and, in light of Pocock, the court found that Johnson had proved this mitigator. Based on this mitigator, the court departed downward from the presumptive range by 1 year of active imprisonment. That is, the court reduced Johnson's sentence for the drug offense to 9 years with 4 years suspended — i. e., 5 years to serve.
See AS 12.55.155(a)(2). --------
After the superior court adjusted Johnson's sentence, we gave both parties the opportunity to file supplemental briefs. Neither party chose to do so.
The superior court's decision on remand has mooted Johnson's claim that the superior court should have found the "small quantity" mitigator. And Johnson does not claim that the superior court should have adjusted his sentence further because of this mitigator.
With regard to Johnson's claim that the superior court should have found the "conduct among the least serious" mitigator, we have examined the record and the superior court's decision on this issue, and we agree with the superior court that the mitigator was not proved.
The superior court noted that, apart from the small quantity involved, Johnson's sale of methamphetamine was a typical commercial sale. And the court rejected Johnson's argument that, because he acted as the intermediary for the ultimate supplier of the methamphetamine, his conduct in performing the sale was less serious.
In his brief to this Court, Johnson asserts that the superior court's analysis of the "least serious" mitigator was flawed because the court "made no findings about the circumstances that led Johnson to become dependent on street drugs". But when Johnson's attorney argued the mitigator to the superior court, he did not ask the court to consider this issue.
Accordingly, we uphold the superior court's ruling on the "least serious conduct" mitigator.
The judgement of the superior court is AFFIRMED.