Opinion
A-13494
12-22-2021
JAMES LANEAL LEE, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Lindsey M. Burton, Assistant District Attorney, Palmer, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Trial Court No. 3PA-12-02415 CR Vanessa H. White, Judge.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Lindsey M. Burton, Assistant District Attorney, Palmer, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
James Laneal Lee pleaded guilty to first-degree theft for stealing over $25,000 worth of property from the Division of Forestry building in Palmer. The superior court imposed a sentence of 8 years to serve, running completely consecutively to Lee's sentences in three other state cases (from Anchorage) and one federal case - for a total composite sentence of nearly 24 years.
AS 11.46.120.
Lee appealed his sentence. On appeal, we concluded that the superior court could reasonably reject Lee's request for a fully concurrent sentence. But we remanded Lee's case for the superior court to consider whether a partially concurrent sentence would meet the Chaney criteria, as it was unclear from the record if the superior court had considered this option before imposing a fully consecutive sentence.
Lee v. State, 2019 WL 856725, at *2-3 (Alaska App. Feb. 20, 2019) (unpublished).
On remand, the superior court did not hold a hearing. But in a written sentencing order, the court revised its original sentence so that 2 years ran concurrently with the sentences in Lee's state cases.
The court concluded that it had no ability to run any portion of Lee's sentence concurrently to the sentence imposed in his federal case because the federal court anticipatorily ordered Lee's sentence in that matter to run consecutively to any state sentence. See Setser v. United States, 566 U.S. 231, 244 (2012). Lee does not challenge this ruling.
Lee now renews his appeal, arguing that (1) the court violated his due process rights by failing to hold a new sentencing hearing on remand, and (2) the sentence of 8 years, with only 2 years running concurrently to the sentences in his state cases, remains excessive.
Having reviewed the record, we reject Lee's claims. We have previously held that when this Court remands for reconsideration of a defendant's sentence, the sentencing court is not required to hold a new sentencing hearing if the defendant otherwise received a full and fair sentencing hearing at which he was able to present all of his evidence, make allocution, and argue his case. Rather, under those circumstances, a sentencing court has the discretion to hold a hearing if one is requested. We noted that a new hearing was particularly desirable "where an application is made showing a material change in circumstances since the original sentence was imposed."
Tookak v. State, 680 P.2d 509, 511 (Alaska App. 1984).
Id.
Id.
Here, Lee did not ask the court to hold a resentencing hearing after remand, and he did not seek to present any evidence of a material change in his circumstances since his original sentence was imposed. Further, Lee does not allege that he was denied any procedural rights at his initial sentencing, nor does he assert that the superior court refused to consider material evidence or erroneously considered unlawful evidence. Given these facts, we conclude the superior court did not abuse its discretion by failing to sua sponte hold a resentencing hearing in this case.
We also conclude that the court's revised sentence of 8 years, with 2 years concurrent to the Anchorage state cases, is not clearly mistaken. At Lee's initial sentencing hearing, the court found that this case involved a distinct criminal episode with different victims and different consequences; that a wholly concurrent sentence with the Anchorage cases would fail to give adequate weight to community condemnation; and that Lee had a lengthy criminal history and continued to present a risk to the public. In Lee's first appeal, we concluded that these findings were supported by the record.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Lee, 2019 WL 856725, at *2.
On remand, the court - relying on these same findings and considering Lee's sentences as a whole - determined that a partially concurrent sentence was appropriate and would adequately reflect the impact of the harm inflicted on the Palmer community and the need to protect the community from similar future harm. We see no error in the court's order.
Lee argues that the trial court did not make sufficient findings to justify the imposition of a composite sentence, across all of his cases, of more than 10 years - the maximum sentence for his most serious state offense, second-degree theft. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981), and Mutschler v. State, 560 P.2d 377, 380-81 (Alaska 1977), as modified in Phelps v. State, 236 P.3d 381, 392-94 (Alaska App. 2010). But even assuming the Neal-Mutschler rule applies in a situation where sentences are imposed by different judges in multiple cases, the sentences in Lee's Anchorage cases alone - sentences Lee received before the sentencing hearing in this case - already totaled 11 years, and we nonetheless upheld (in Lee's first appeal) the trial court's refusal to impose a fully concurrent sentence in this case.
The judgment of the superior court is AFFIRMED.