Opinion
Court of Appeals No. A-9019.
March 8, 2006.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard H. Erlich, Judge. Trial Court No. 2KB-04-950 CR.
Gregory S. Parvin, Lewis Thomas, P.C., Nome, for Appellant.
John A. Earthman, District Attorney, Nome, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
As part of a plea agreement with the State, Victor Ryan Jones was convicted of failure to register as a sex offender, a misdemeanor. Under the agreement, sentencing was open. Jones also agreed that based on this conviction, the superior court would revoke his probation for his prior felony conviction for attempted second-degree sexual assault, and impose all the suspended time remaining in that case, approximately 20 months. The State agreed to dismiss six pending criminal charges.
AS 11.56.840(a)(4) (b).
Superior Court Judge Richard H. Erlich accepted the agreement. He then sentenced Jones to 360 days in jail, none suspended, for failure to register as a sex offender. He also imposed all the remaining time in the felony case. Jones appeals, claiming that the record does not support the near-maximum sentence for the misdemeanor conviction.
But as we explained in Custer v. State, "[w]hen a defendant pursues a sentence appeal after the sentencing court has imposed a composite sentence for two or more criminal convictions, this Court assesses whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history." When sentences are imposed for two or more criminal convictions, "the law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation." Hence, this court will not hear a challenge to a composite sentence unless the defendant has appealed "each of the sentences that contributes to the composite total — so that the court can meaningfully evaluate the whole."
88 P.3d 545 (Alaska App. 2004).
Id. at 549. See also Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988).
Custer, 88 P.3d at 549.
Id.
Jones's appeal is governed by these rules. As part of a plea agreement, Jones was convicted in the misdemeanor case and his probation was revoked in the felony case. Judge Erlich imposed sentences in both cases at the same hearing. Jones's misdemeanor offense was directly connected to his prior felony: he was required to register as a sex offender because of his felony conviction for attempted second-degree sexual assault. Finally, much of the information Judge Erlich considered when determining Jones's sentence came from the amended petition to revoke probation in the felony case.
It is true that Jones cannot appeal the disposition in his felony case because he agreed to that sentence as part of his plea agreement. Nevertheless, to challenge the composite sentence imposed, Jones had to provide us with the records from both the misdemeanor and felony cases. Yet the only part of the felony record before us is the lengthy petition to revoke probation filed by Jones's probation officer. That petition was made part of the record in this case.
That said, we conclude that the current record allows us to meaningfully review Jones's composite sentence. The record shows that the sentence Judge Erlich imposed was primarily based on Jones's poor performance while on probation for the felony case. Jones's many violations of probation were chronicled by the petition to revoke probation, which was amended four times. Jones did not contest the long list of violations, and — as evidenced by his plea agreement — he conceded that his misconduct while on probation merited imposition of nearly 2 years of previously suspended jail time.
The amended petition to revoke probation covered a period of approximately four years. During that time, Jones — a "maximum supervision level offender" who was required to report to his probation officer twice a month — repeatedly refused to report to his probation officer, and failed to attend required treatment related to his substance abuse and sexual assault conviction. Jones also failed to report when he changed his residence. Additionally, during this four-year period, Jones failed to register as a sex offender, and was charged with drunk driving, refusal to submit to a chemical test, resisting arrest, and three counts of fourth-degree assault.
After listening to the parties' sentencing arguments, Judge Erlich imposed 360 days, a near maximum sentence, for the misdemeanor, and revoked all the remaining suspended time for the felony. He stated that he would normally sentence a first-time offender to 60 to 90 days for failure to register as a sex offender. But he found that Jones had "much more serious problems" than just failure to register. Judge Erlich noted that, after the first petition to revoke was filed in 2000, Jones evaded the police for nearly four years. He also noted that many of the probation violations he committed involved failures to act — essentially the same conduct as failure to register as a sex offender. Judge Erlich observed that Jones had been charged with three counts of assault while he was on probation. And he explained that he had imposed Jones's sentence after "looking at all of the different petitions to revoke" and at the charges that were being dismissed.
Judge Erlich said that had Jones taken responsibility for his misconduct while on probation, he "wouldn't be doing as much time in jail." He also said that because Jones was older, a longer sentence was necessary to ensure that Jones understood the seriousness of his misconduct.
The record before us supports Judge Erlich's sentencing comments. Based on our review of this record, we are unable to conclude that Jones's composite sentence is clearly mistaken. Conclusion
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).
The sentence is AFFIRMED.