Opinion
Court of Appeals No. A-9708.
March 19, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-311 CR.
Beth G.L. Trimmer, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On February 4, 2004, the Alaska State Troopers received a report that two men were attempting to break into a home near milepost 66 of the Glenn Highway. The caller provided the license number for the vehicle the two men used. About an hour later a trooper stopped that vehicle.
Navarro was in the vehicle, and, when questioned, eventually admitted that he participated in the attempted break-in. He consented — in writing — to a search of the vehicle. The troopers also obtained a search warrant for the vehicle. Items found during the search of the vehicle directly linked Navarro to four other burglaries in the area.
The grand jury indicted Navarro on four counts of first-degree burglary, one count of attempted first-degree burglary, and seven counts of second-degree theft. Navarro moved to suppress statements he made to the troopers, contending that the troopers violated Miranda. He also moved to suppress the evidence obtained when the warrant was executed to search his vehicle. The superior court denied most of the relief Navarro sought.
AS 11.46.300(a)(1), AS 11.46.300(a)(1) AS 11.31.100(a), and AS 11.46.130(a)(1) (2), respectively.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Navarro waived his right to a jury trial and agreed to a bench trial on stipulated facts. The superior court found Navarro guilty as charged, and imposed a composite term of 10 years with 6 years suspended, a net 4-year term to serve.
Navarro appeals, contending that the superior court erred in refusing to suppress all the statements he made to the troopers. We uphold the superior court's rulings for the reasons expressed below.
Navarro also claims that the superior court should have merged several counts of second-degree theft at sentencing. We agree with Navarro that the double jeopardy clause requires certain counts of second-degree theft to be merged. Accordingly, we direct the superior court to amend the judgment.
Finally, Navarro challenges his sentence in several respects. For the reasons set forth below, we reject Navarro's sentencing arguments. Facts and proceedings
On February 4, 2004, fifteen-year-old B.D. called the Alaska State Troopers to report that two men were attempting to break into her home near milepost 66 of the Glenn Highway. B.D. reported that the men were driving a Jeep Cherokee with a license plate number CTG 770. Approximately one hour later, troopers stopped a Jeep Cherokee with license plate number CTG 770 near milepost 60 of the Glenn Highway. Navarro and another man were in the Jeep. The troopers drove Navarro to another location where B.D. could be discreetly driven by to see if she recognized him. B.D. identified Navarro as one of the men who attempted to break into her house.
Sergeant Mark Ridling read Navarro his Miranda rights. Ridling then asked Navarro: "Do you understand these rights?" Navarro replied: "Yeah." Ridling then asked Navarro: "Where are you guys coming from?" Navarro responded to the questions but denied he had anything to do with an attempt to break into a home. Ridling told Navarro that the police had ample evidence against him including an eyewitness. Navarro continued to deny the allegations. Ridling finally stated that he was going to have to call the district attorney's office. Navarro replied "I'm sorry" but continued to maintain that he had nothing to do with the attempted burglary.
The troopers transported Navarro to the Palmer trooper post where he was interviewed by Investigator David Willson. Investigator Willson asked Navarro if he recalled the rights that Ridling had advised him of approximately two hours earlier. Navarro indicated that he remembered those rights, and when Willson asked if he had any questions, he shook his head no. Willson reminded Navarro that he had asked to speak with his girlfriend (whom Willson called his wife). Navarro explained that he had wanted to talk to her or to someone who could figure out what was going on and could get him "out of here." Willson responded by saying, "I understand, you probably have some questions for me too then, right? . . . Well, I got some questions too. We can probably sort all of this out if you're willing to talk for awhile, I'd be happy to talk and try to explain some of this. And maybe you can explain some stuff to me, is that okay?" Navarro replied that would be fine and Willson proceeded to question him.
Navarro continued to deny any involvement in the attempted burglary, and he asked Willson what would happen to him. Willson told Navarro that if he was cooperative and came clean, he could write that in his report. Willson continued to say:
[T]hat's probably pretty good for you, don't you think? You're an adult; it's your decision. But being cooperative, I don't think hurts you. I think it's probably good when someone says "yeah okay, yeah maybe I screwed up, I was doing something stupid, but everybody makes mistakes and I'm sorry."
Navarro eventually admitted his participation in the attempted burglary and consented in writing to a search of the vehicle.
On February 5, 2004, the troopers obtained a search warrant to search the Jeep Navarro had been driving. Items found in the Jeep directly linked Navarro to four other residential burglaries.
Navarro was charged with one count of attempted first-degree burglary for attempting to enter B.D.'s home. He was charged with one count of first-degree burglary and one count of second-degree theft for taking jewelry and a coin collection from another home. With respect to the three other homes, Navarro was charged with one count of first-degree burglary, one count of second-degree theft for theft of property in excess of $500, and one count of second-degree theft for theft of a firearm from each home.
Discussion
Navarro's Miranda claims
In superior court, Navarro moved to suppress all his statements and the evidence the troopers obtained after he admitted he was involved in the attempted burglary of B.D..'s home. Superior Court Judge Eric Smith found that even though Ridling had fully advised Navarro of his Miranda rights, the trooper nevertheless violated Miranda by failing to obtain Navarro's express waiver of those rights before questioning him. Based on this finding, Judge Smith suppressed Navarro's statements to Ridling.
However, Judge Smith found that Navarro had initiated the conversation with Investigator Willson, and that Willson had obtained Navarro's express consent to be interviewed. Judge Smith also found that Willson had adequately clarified Navarro's remark about wanting to speak with "somebody." Judge Smith therefore found that Navarro's statements to Willson were not coerced, and he denied Navarro's motion to suppress his statements to Willson.
Navarro argues on appeal that the trial court erred when it failed to grant his motion to suppress these later statements.
The State contends that Judge Smith should not have granted any portion of Navarro's motion — that he erred when he suppressed Navarro's statements to Ridling. We conclude we do not need to resolve the State's claim. Navarro made no incriminating statements to Ridling, and, as we explain below, Navarro's statements to Willson were admissible.
When Investigator Willson interviewed Navarro at the police station (the interview was videotaped), he first reminded Navarro that Ridling had read him "some rights" approximately two hours earlier when Ridling first questioned Navarro at the scene of the traffic stop:
Willson: Well, you spoke with Sergeant Ridling, the one who gave you a ride in here. And he read you some rights, you remember those? And he explained that you didn't have to talk to him and all that, you remember those rights?
Navarro: Yeah. I have a right to remain silent.
Willson: Yeah, do you remember all that?
Navarro: Yeah.
Willson: Do you have any questions about that?
Navarro: (Shakes head negatively.)
Navarro argues that this reminder was insufficient and that Willson should have repeated the Miranda warnings. However, "[i]t is generally accepted that fresh warnings are not required after the passage of just a few hours." As Professor LaFave explains:
Wayne R. LaFave, Jerold H. Israel, Nancy J. King and Orin S. Kerr, Criminal Procedure § 6.8(b), at 805 (3d ed. 2007).
Even when the passage of time has been fairly brief, consideration must be given to changes in the circumstances in the interim. However, the courts have generally taken the position that new warnings are not required just because there has been a change in the locale of the interrogation, in the officers doing the questioning, or in the subject matter of the investigation. Even a combination of these circumstances is not deemed to call for new warnings.
Id. at 806.
This court has also taken the view that a second advisement of Miranda warnings is not generally required when there has been a gap in the questioning of a defendant. In Pierce v. State, the defendant was stopped as a suspect in a robbery. The trooper conducting the stop advised the defendant of his Miranda rights and then transported him to another area where he was questioned by an investigator. The defendant confirmed that he had been warned of his rights by the first officer and that he understood them. The defendant then answered questions and consented to a search of his backpack. We held that Pierce was adequately advised of his Miranda rights by the first officer, and that he gave valid consent to search his backpack.
627 P.2d 211 (Alaska App. 1981).
Id. at 214.
Id. at 217.
Id. at 214-15.
Id. at 216-17.
Here, Investigator Willson asked Navarro if he remembered the rights Ridling had advised him of a couple of hours earlier. Navarro responded that he remembered the rights, and even explicitly informed Willson that he knew he had the right to remain silent. Willson asked if Navarro had any questions about his rights, and Navarro shook his head no. In these circumstances, Investigator Willson was not required to repeat the Miranda warning because Navarro had been fully advised of his rights approximately two hours earlier, and because Navarro assured Willson that he understood those rights.
After Willson confirmed that Navarro understood his rights, he obtained a waiver of those rights. Willson stated: "You just said you had some questions. Well, I got some questions too. We can probably sort all of this out if you're willing to talk for awhile, I'd be happy to talk and try to explain some of this. And maybe you can explain some stuff to me. Is that okay?" Navarro replied, "That's fine" and answered Investigator Willson's questions. We conclude that Navarro expressly waived his rights.
Navarro also argues that his interview with Willson should be suppressed because of flaws in Ridling's earlier interview. Navarro asserts that Judge Smith found that his statements to Ridling were involuntary, and he argues that Judge Smith should have found that these involuntary statements tainted the ensuing interview with Willson — or, at least, that Willson was required to fully re-advise Navarro of his Miranda rights in order to cure this purported taint.
Navarro's argument is based on a misunderstanding of Judge Smith's ruling. Judge Smith did not declare that Navarro's statements to Ridling in the first interview were involuntary. True, the judge stated that Ridling tried to coerce Navarro to confess (by threatening to ask the district attorney's office to initiate criminal charges). However, Judge Smith concluded that, to the extent Ridling's statements were arguably threatening, the threats "did not work."
This ruling is supported by the record; indeed, the opposite ruling would have been clearly erroneous. The record shows that, despite everything Ridling said, Navarro continued to protest his innocence and did not make any incriminating statements to Ridling. In other words, Navarro's will was not overborne.
We addressed an analogous situation in Edwards v. State. In Edwards, the police used threats of immediate arrest to get the defendant to talk to them — and, for this reason, we held that the police violated the defendant's Miranda rights. But we rejected Edwards's assertion that his statements to the police were involuntary because "Edwards, despite police pressure to talk, said nothing to directly inculpate himself in [the crimes under investigation]." Instead, Edwards "engaged in a calculated effort to assuage police suspicions."
842 P.2d 1281 (Alaska App. 1992).
Id. at 1284-85.
Id.
Id.
For this same reason, we reject Navarro's involuntariness claim. Navarro's statements to Ridling were voluntary — and, as a consequence, Navarro's interview with Willson was not tainted by any preceding involuntary statements.
We also reject Navarro's claim based on Oregon v. Elstad. In Elstad the suspect confessed during an interview that was not preceded by proper Miranda warnings and then, after proper warnings, was is interviewed again. The question presented in Elstad was whether, despite the earlier confession obtained in violation of Miranda, the suspect's statements during later interviews could be admitted if they were preceded by a full advisement of the suspect's Miranda rights. Put another way, the question in Elstad was whether a later confession in this circumstance could be truly voluntary if the "cat is out of the bag."
470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985).
Id. at 300, 105 S. Ct. at 1288.
Id. at 303-04, 105 S. Ct. at 1290.
Navarro's case is distinguishable from Elstad on its facts. Judge Smith found that Ridling interviewed Navarro in violation of Miranda, but Navarro said nothing incriminating during this interview. Instead, Navarro repeatedly and consistently declared his innocence — his lack of involvement in any burglaries. To use the language of Elstad, no cat emerged from the bag during Navarro's interview with Ridling. Thus, Navarro's statements to Ridling did not create any pressure on him to confess during his later interview with Willson. For this reason, the ruling in Elstad simply does not apply to this case.
See id. at 302-04, 105 S. Ct. at 1289-90.
Next, Navarro claims that he made a request to Investigator Willson that could reasonably be understood as a request for an attorney. Navarro contends that this request was not adequately clarified by Willson. When Willson asked Navarro, "And you wanted to talk to your wife, you said, right?", Navarro replied, "I wanted to talk to her and figure out what was going on. Or talk to somebody that can get me out of here.
Or talk to somebody that can figure that I didn't really do this so I can get the hell out of here."
Navarro claims that this statement was a request for counsel and that Investigator Willson should have clarified whether he wanted to speak with an attorney. Generally, if a defendant invokes his right to counsel, the police must stop all questioning unless counsel is present or the defendant initiates the discussion.
Tagala v. State, 812 P.2d 604, 609 (Alaska App. 1991).
In this case, Navarro did not invoke his right to counsel. Navarro's statement that he wanted to speak with "somebody" was insufficient to indicate to a reasonable officer under the circumstances that he wanted to call an attorney. Navarro's request to call "someone" was not even an equivocal request for an attorney, and Willson did not have a duty to stop questioning and clarify whether Navarro wanted one. (We note that when Navarro had the opportunity to place a call, he called his girlfriend.)
Navarro's attack on the search of the Jeep
After Navarro confessed to Investigator Willson, he consented to a search of his girlfriend's Jeep, which he had been driving. Navarro argues that his consent to search the Jeep was involuntary for a number of reasons: because his will was overborne during the first interrogation with Ridling; because he was not read his Miranda rights during the second interrogation with Willson; because he was in the "coercive surroundings" of the trooper post; and because he was only twenty years old and a first-time felony offender.
In order to uphold a consent to search, the State must show that the consent was "unequivocal, specific, intelligently given and uncontaminated by duress or coercion." Navarro willingly chose to talk with Willson. He also signed a "Waiver of Search" for the Jeep which stated that the consent was given "voluntarily and without threats or promises of any kind." In addition, there is nothing in the record to show that Navarro was in coercive surroundings at the trooper post.
Robinson v. State, 578 P.2d 141, 144 (Alaska 1978) (footnote omitted).
Navarro also claims that his consent was coerced because he was only twenty years old and a first felony offender. However, Navarro was not a minor, and his age per se does not vitiate an otherwise voluntary consent. And while this was Navarro's first felony offense, he had an extensive juvenile record and several misdemeanor convictions as an adult. We conclude that Navarro's consent to search was voluntary.
Navarro also argues that the warrant to search the vehicle was issued based on statements that were illegally obtained by Investigator Willson, and that without these statements there was no probable cause to issue the warrant. Because we have concluded that Willson did not violate Navarro's rights, we reject this claim.
Navarro's merger claims
Navarro burglarized four homes and stole property from each. For his burglary of three of the homes (the homes of Jess Adams, Claudia Berkley, and Wayne Allen), Navarro was convicted of two counts of second-degree theft for each home — one count for theft of property worth more than $500 under AS 11.46.130(a)(1), and one count of theft of a firearm under AS 11.46.130(a)(2).
The evidence supporting Count VI and Count VII was that Navarro stole six guns with an aggregate value of over $700 from the Adams home. The evidence supporting Count IX and Count X was that Navarro stole four guns with an aggregate value of $900 from the Berkley home. The evidence supporting Count XII and Count XIII was that Navarro stole binoculars worth $500 and various guns with an aggregate value of $3200 from the Allen home.
Navarro argues that all three pairs of theft convictions should merge. We agree with regard to the two pairs of convictions in which firearms were the only property supporting both convictions. But for the counts charging the theft of guns and other property worth $500 or more merger was not required.
Judge Smith did not merge any of the convictions, stating:
[T]heft of a firearm and theft of more than $500 actually serve very different societal interests because theft of a firearm carries risks that theft of jewelry or computers don't carry. And so I don't think merger is appropriate. However, it's not going to matter because I'm basically going to make concurrent all the sentences for each burglary and theft together.
Navarro contends that Judge Smith's refusal to merge the theft convictions violates double jeopardy. Navarro first points to Whitton v. State. In Whitton, the Alaska Supreme Court established a test to determine whether or not merger is appropriate:
479 P.2d 302 (Alaska 1970).
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. The social interests to be considered would include the nature of personal property or other rights sought to be protected, and the broad objectives of criminal law such as punishment of the criminal for his crime, rehabilitation of the criminal, and the prevention of future crimes. If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy.
Id. at 312.
Navarro argues that, under Whitton, both of the subsections of second-degree theft charged in his case encompass his conduct in stealing firearms, and that the State did not establish any facts that demonstrate differences in intent or conduct that would allow the imposition of two different sentences for the convictions under each subsection. Navarro argues that the statutory provisions serve the same societal interests — the protection of personal property.
The State argues that the legislature determined that different interests were at stake depending on the type of property taken. The State contends that while one subsection of second-degree theft requires theft of property valued at $500 or more, theft of other property that may be of lesser value (specifically, a firearm or explosive) may be charged as second-degree theft based on the risk of harm that theft may create. The State points to the Commentary on the Alaska Revised Criminal Code, which explains that:
the theft of any firearm or explosive, regardless of value, is theft in the second degree. This provision is included because of the frequency with which stolen firearms and explosives are used in committing other crimes.
Commentary on the Alaska Revised Criminal Code, 1978 Senate Journal 1414, Supp. No. 47 (June 12) at 32-33 (commentary to AS 11.46.130(a)(z)).
The State observes that in Martin v. State, this court relied on that commentary to uphold separate convictions for theft of $500 or more and theft of a firearm. In Martin, the State charged Martin with separate counts of theft by receiving based on the fact that he was in possession of property that was stolen from five separate victims. The State also charged Martin with an additional count of second-degree theft because one item of stolen property was a firearm. On appeal, this court held that the single larceny rule applied. The single larceny rule provides that the "taking of property belonging to different owners at the same time and place constitutes but one larceny." However, relying on the commentary cited above, we held that the State could properly charge Martin with the additional count of theft of a firearm.
797 P.2d 1209 (Alaska App. 1990).
Id. at 1218.
Id.
[T]he legislature had a specific purpose to punish the theft of a firearm as a separate crime distinct from the theft of other kinds of property. [T]he theft of a firearm is [therefore] not included within the single larceny rule[,] and [a defendant charged with other theft counts can] be separately convicted and punished for the theft of a firearm.
Id. at 1218-19.
We have some doubt that Martin was correctly decided, but neither party has asked us to reexamine Martin's analysis. As Navarro points out, Martin applied the single larceny rule to different facts. First, Martin stole from several individuals in one episode. Second, Martin not only stole a firearm, but additional property as well. In this case, two of the four burglaries (the burglary at the Berkley and Adams homes) involved only the theft of firearms. The State charged these single acts of firearm theft twice: one charge for stealing firearms and one charge for stealing property worth $500 or more (because the aggregate value of the guns at each home was $500 or more).
We faced a similar issue in Atkinson v. State. In that case, Atkinson was indicted on two counts of misconduct involving a controlled substance in the fourth degree for possessing numerous marijuana plants in his home. One count charged him with manufacturing or possessing with intent to deliver one ounce or more of marijuana under AS 11.71.040(a)(2) and another count charged him with simple possession of one pound or more of marijuana under AS 11.71.040(a)(3)(F). The charge in each count was based on the marijuana seized from his home. On appeal, this court held that each count alleged alternative theories of the same crime and were based on a single act of possession involving the same marijuana. We concluded that double jeopardy barred Atkinson's conviction of two counts of the same offense. In a footnote, we explained:
869 P.2d 486 (Alaska App. 1994).
Id. at 490.
Id. at 495.
Id.
Id.
An example of the same problem in a somewhat more familiar statutory setting makes it easier to see the inappropriateness of convicting on more than one count. Alaska Statute 11.41.220 defines several alternative ways of committing third-degree assault, including recklessly placing a person in fear of imminent serious physical injury by means of a dangerous instrument (subparagraph (a)(1)(A)) and recklessly causing physical injury by means of a dangerous instrument (subparagraph (a)(1)(B)). An offender who recklessly assaults another person with a dangerous instrument, simultaneously placing the victim in fear and causing physical injury, can certainly be prosecuted for third-degree assault under both statutory theories. However, only one third-degree assault occurs. Because the alternative statutory theories define the same offense and the offender's conviction results from a single criminal act involving a single victim, conviction for more than one count of assault is barred.
Arguably double jeopardy might not have precluded separate convictions if it were clear that Atkinson's conviction on Count I was based on his manufacture of the marijuana rather than on his possession of it, since different criminal acts might then have been found. See Davis v. State, 766 P.2d 41, 45-46 (Alaska App. 1987). However, neither the jury instructions nor the state's argument at trial limited the jury to convicting based on the theory of manufacture. Since the record is ambiguous on the issue, the ambiguity must be resolved in Atkinson's favor. Cf. Clifton v. State, 758 P.2d 1279, 1285 (Alaska App. 1988).
Id. at 495 n. 6.
Judge Smith should have merged the conviction for theft of a firearm (under AS 11.46.130(a)(2)) with the conviction for theft of property in excess of $500 (under AS 11.46.130(a)(1)) for Navarro's theft of firearms from the Berkley and Adams homes. Under Martin, merger is not required for Navarro's theft from the Allen home because Navarro stipulated that in addition to firearms, he stole a pair of binoculars valued at $500.
The convictions for both theft of a firearm and theft of property worth $500 or more from the Berkley and the Adams homes violates double jeopardy. Accordingly, Judge Smith must merge the theft counts in Counts VI and VII and the theft counts in Counts IX and X. Navarro's sentencing claims
Navarro argues that Judge Smith erroneously imposed consecutive sentences for each of the four counts of burglary and one count of attempted burglary. Navarro contends that he should have been given concurrent sentences because he was charged and arrested in February 2004 and is subject to sentencing under former AS 12.55.025(e) and (g).
Ch. 125, SLA 2004, §§ 7, 8 (repealing subsections (e) and (g) of AS 12.55.025 and that repeal to offenses committed on or after July 1, 2004).
But as the State points out, former AS 12.55.025(e) stated that "if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively." Former AS 12.55.025(g) then gave a list of situations and factors under which "sentences of imprisonment may run concurrently." While Navarro meets some of the criteria listed in AS 12.55.025(g), the language of the statute shows a preference for consecutive sentencing, while allowing judges the discretion to impose sentences concurrently if they deem appropriate.
Former AS 12.55.025(e) (2004) (emphasis added).
Former AS 12.55.025(g) (2004) (emphasis added).
In Edmonds v. State, this court discussed former AS 12.55.025(e) and (g) and ruled:
118 P.3d 17 (Alaska App. 2005).
These two sections required consecutive sentences in certain circumstances, and in all other instances they gave a sentencing judge discretion as to whether a defendant's sentences should be imposed consecutively or concurrently. In fact, both this Court and the Alaska Supreme Court construed former AS 12.55.025(e) and (g) as creating a preference for consecutive sentences, which a sentencing judge had the discretion to reject.
Id. at 21 (citations omitted).
Navarro also argues that Judge Smith completely disregarded consideration of the sentencing law under AS 12.55.025(e) and (g) and gave no explanation of his decision to impose consecutive sentences other than to state "because this is a string of burglaries, consecutive sentences are appropriate." However, Navarro argued for concurrent sentencing in his sentencing memorandum and again at the sentencing. The record shows that Judge Smith considered concurrent sentencing because he imposed concurrent sentences for the theft convictions that related to each burglary. From our examination of the sentencing record, we conclude that Judge Smith's decision to impose consecutive sentences for the burglary and attempted burglary counts was not clearly mistaken.
N ext, Navarro argues that Judge Smith violated the rule in Farmer v. State when he imposed a composite term to serve that exceeded the Austin limit for Navarro's most serious offense — the Austin limit being the presumptive term that a second felony offender would receive for Navarro's most serious offense. In Farmer, this court established a rule that when a first felony offender is convicted of multiple crimes, the presumptive term for the offender's most serious crime is an important benchmark that is not to be exceeded without good reason. Navarro's most serious offense was first-degree burglary, a class B felony. The presumptive term for a second felony offender convicted of a class B felony under the sentencing law that applied when Navarro committed his crimes was a 4-year presumptive term.
746 P.2d 1300 (Alaska App. 1987).
See Austin v. State, 627 P.2d 657 (Alaska App. 1981)
Id. at 1301.
AS 11.46.300(b).
See former AS 12.55.125(d)(1) (2004).
Navarro's string of burglaries and thefts from the four homes, and Navarro's attempted burglary on the day he was arrested, constituted good cause for imposing the composite term imposed by Judge Smith. We reject Navarro's Farmer claim.
Navarro next cites Jackson v. State as the appropriate framework for the court to follow when sentencing on a class B felony. Jackson states: "A typical offender committing a typical or moderately aggravated offense should receive an unsuspended term of a year or more to serve. The upper limit in such cases should be four years, reflecting our decision in Austin v. State."
776 P.2d 320 (Alaska App. 1989).
Id. at 326 (citing Austin, 627 P.2d 657 (footnote omitted)).
The State points out that the Austin rule was superseded by A S 12.55.125(k)(2). In Dayton v. State, this court examined the difference between the two:
120 P.3d 1073 (Alaska App. 2005).
Thus, "the Austin rule calls for a first offender to receive an unsuspended term of imprisonment more favorable than the presumptive term for second felony offenders, while the statute calls for a first felony offender to receive an unsuspended term no greater than the presumptive term for second felony offenders."
Id. at 1079 (quoting Beasley v. State, 56 P.3d 1082, 1087 (Alaska App. 2002) (Mannheimer, J., concurring) (Emphasis in Beasley)).
Navarro's term to serve complies with the statute that superseded the Austin rule. Finally, Navarro contends that his sentence is excessive. Navarro burglarized four homes, stealing property from each. He stole firearms from three of the homes, and from one home stole a coin collection and jewelry exceeding $15,000 in value. Navarro also had prior misdemeanor convictions and an extensive juvenile delinquency history. From our examination of the sentencing record, we conclude that Navarro's composite term is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
We AFFIRM Navarro's convictions, and direct the superior court to merge Navarro's convictions in Counts V and VI and Navarro's convictions in Counts IX and X . The superior court shall issue an amended judgment reflecting merger on those counts.