Opinion
Court of Appeals No. A-9989.
April 16, 2008.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-04-487 Cr.
William W. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Scot H. Leaders, Assistant District Attorney, and June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In March 2004, Jerry Maillelle assaulted his girlfriend, choking her repeatedly (approximately two dozen times) over the course of an hour. At the time of this incident, Maillelle was on probation from an earlier assault on the same woman.
Maillelle was charged with felony assault for this March 2004 incident. In June, he reached a plea agreement with the State: he pleaded guilty to a reduced charge of fourth-degree (misdemeanor) assault, and he was sentenced to 12 months' imprisonment with 9 months suspended ( i.e., 3 months to serve). (In addition, Maillelle's probation from his earlier assault conviction was revoked, and he was sentenced to serve jail time that had previously been suspended in that earlier case.)
On January 28, 2005 — just three weeks after his release from custody after serving these sentences — Maillelle again beat and strangled his girlfriend. He was indicted for felony assault (second-and third-degree assault) in File No. 3KN-05-165 Cr, and the State also filed a petition to revoke Maillelle's probation in the present case, File No. 3KN-04-487 Cr.
In April 2007, Maillelle reached a plea agreement with the State. In File No. 3KN-05-165, Maillelle pleaded no contest to third-degree assault, with a sentence cap of 3 years to serve (but with the State allowed to seek additional suspended jail time). In addition, Maillelle agreed to admit the allegations of the petition to revoke his probation in the present case, with open sentencing.
In accordance with the terms of this agreement, Superior Court Judge Charles T. Huguelet sentenced Maillelle to 5 years' imprisonment with 2 years suspended ( i.e., 3 years to serve) for the third-degree assault in the 2005 case. In addition, Judge Huguelet sentenced Maillelle to the 9 months' imprisonment that had been previously suspended for the misdemeanor assault in the 2004 case.
Maillelle now appeals the 9-month sentence he received for the probation revocation in the 2004 case.
Maillelle correctly points out that a sentencing court is not allowed to automatically impose all of a defendant's previously suspended jail time when a defendant violates probation. Rather, the court must re-assess the information that was available at the time of the defendant's original sentencing in light of the information that is now available ( i.e., the defendant's conduct that violated the conditions of probation, plus any other new pre-sentence information) — and then, using the sentencing criteria codified in AS 12.55.005, the court must decide whether to impose some or all of the previously suspended jail time.
See, e.g., Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990).
id.
Maillelle argues that Judge Huguelet's sentencing remarks do not contain an explanation of why the judge chose to impose the entire remaining 9 months of Maillelle's sentence from the 2004 misdemeanor assault case. We disagree.
When Judge Huguelet imposed Maillelle's probation revocation sentence, he stated:
The Court: [W]ith respect to the [petition to revoke probation], this [2004 case] was a case that began as a felony and was pled down to a misdemeanor. It involved the same victim as [the new felony assault] case. This was an extraordinary failure of probation: to have another violent attack on the same woman within a short period of time. . . . And [the new felony case] was pled down from a more serious [degree of] assault. If [Maillelle had been] convicted [of the initially charged second-degree assault], [he] would have been looking at 6 to 9 years.
I'm going to revoke [Maillelle's] probation and impose [all of] the remaining time, but I am going to recommend that Maillelle be released to a treatment program, if appropriate, for the last six months of [this] incarceration.
Although Judge Huguelet did not expressly refer to the sentencing criteria specified in AS 12.55.005, "ritual incantation of [these] criteria is not required". Instead, the essential thing is for the sentencing record to demonstrate that the judge has, in fact, considered these criteria. We readily conclude, from Judge Huguelet's remarks quoted above, that he actively considered the pertinent sentencing criteria, and that his sentencing decision reflects his judgement concerning the need to protect the public, the need to deter Maillelle, and Maillelle's potential for rehabilitation.
Moya v. State, 769 P.2d 447, 449 (Alaska App. 1989), citing Smith v. State, 691 P.2d 293, 294 (Alaska App. 1984).
The sentencing decision of the superior court is AFFIRMED.