Opinion
Court of Appeals No. A-9893.
February 20, 2008.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Peter G. Ashman, Judge, Trial Court No. 4BE-05-1152 CR.
Elizabeth A. Pederson, Assistant Public Defender, Anchorage, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Tom V. Jamgochian, Assistant District Attorney, Bethel, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Basil Lake was convicted of indecent exposure in the first degree, a class C felony. Lake was a second felony offender for purposes of presumptive sentencing. He therefore faced a presumptive term of 2 to 5 years of imprisonment. He faced a maximum term of 10 years of imprisonment.
AS 11.41.458.
Former AS 12.55.125(i)(4)(B) (2005).
Former AS 12.55.125(i)(4).
Superior Court Judge Peter Ashman sentenced Lake to 8 years with 5 years suspended. Judge Ashman placed Lake on probation for a period of five years following his release from confinement. Lake appeals, arguing that the sentence is excessive. We affirm.
Factual background
On July 19, 2005, Lake entered the residence of William Smart without permission. Lake encountered two eleven-year-old girls. According to one of the girls, Lake was intoxicated. He sat on a chair in front of the girls. The girls told Lake to leave the house. Instead, Lake put his hands down his pants and touched himself. When one of the girls told Lake not to do that, he took his penis from his pants and grabbed himself. The girl told Lake to stop, but Lake continued. The girls were frightened and fled from the residence. When the police later contacted Lake, he admitted exposing himself.
In an agreement with the State, Lake entered a plea to a single count of indecent exposure in the first degree. Lake admitted an aggravating factor that he had a prior criminal history of aggravated or repeated instances of assaultive behavior. With the aggravating factor, Judge Ashman was authorized by statute to impose up to the maximum 10-year term.
AS 12.55.155(c)(8).
In imposing sentence, Judge Ashman first considered the seriousness of Lake's offense. He pointed out that Lake, while intoxicated, entered the residence without permission. He pointed out that there were two young victims of Lake's sexual misconduct. And he concluded that Lake intentionally directed his conduct at the two young girls. He also pointed to Lake's prior criminal history of similar offenses. He pointed out that Lake had a prior conviction for a misdemeanor sexual assault (in 1990), and that Lake's probation had been previously revoked (in 1998) for indecent exposure. In addition to his prior felony conviction for criminal mischief in the second degree, Lake had several prior misdemeanor convictions, including a prior conviction for assault and two prior convictions for driving under the influence. Judge Ashman concluded that Lake had poor prospects for rehabilitation.
Lake's contentions on appeal
Lake first contends that Judge Ashman did not articulate the reasons why he imposed the sentence that he did. However, the record shows that Judge Ashman carefully weighed the seriousness of Lake's offense, his prior record, and his prospects for rehabilitation. We conclude that Judge Ashman fully justified the sentence that he imposed.
AS 12.55.005.
Lake also argues that Judge Ashman misconstrued his prior record. But the record shows that Judge Ashman was fully aware of and considered Lake's prior criminal history. In particular, the record shows that Judge Ashman was aware of Lake's prior misdemeanor sexual assault, as well as the fact that Lake was later revoked on his probation for indecent exposure.
Lake also contends that Judge Ashman erred in rejecting the contention that Lake's conduct was not the least serious conduct constituting the offense, but rather was among the most serious conduct within the definition of the offense. But Judge Ashman did not find the aggravating factor that Lake's offense was among the most serious conduct constituting the offense. He merely acknowledged that there was an argument that Lake's conduct was among the most serious conduct within the definition of the offense. Judge Ashman did not err in making this observation. Judge Ashman imposed a sentence of imprisonment within the presumptive range and fully articulated his reasons for imposing the sentence. We conclude that the sentence is not clearly mistaken.
AS 12.55.155(c)(10).
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.