Opinion
Court of Appeals No. A-11186 No. 6118
11-26-2014
MICHAEL DRACO OSCEOLA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: William R. Satterberg Jr., Fairbanks, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1KE-10-085 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: William R. Satterberg Jr., Fairbanks, for the Appellant. Stephen R. West, District Attorney, Ketchikan, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, Michael Draco Osceola (formerly known as Michael Brady) was convicted of four counts of second-degree theft, a class C felony, based on thefts that he and his wife committed at four different businesses on the same day. Osceola received a composite term of 5 years' imprisonment for these offenses.
AS 11.46.130(a)(1) and (c).
Osceola filed an appeal which included the claim that this composite sentence was excessive. In our previous opinion in this case, Osceola v. State, unpublished, 2013 WL 2489585 (Alaska App. 2013), we did not resolve Osceola's excessive sentence claim because, at that time, our jurisdiction to hear the sentence appeal was in doubt. Our decision in Mund v. State, 325 P.3d 535 (Alaska App. 2014), has since clarified that we have jurisdiction to resolve Osceola's excessive sentence claim. We therefore now turn to the merits of that claim.
Osceola was a "third felony offender" for presumptive sentencing purposes, and he therefore faced a presumptive sentencing range of 3 to 5 years' imprisonment on each count of second-degree theft.
AS 12.55.125(e)(3).
Osceola's criminal record stretches back to his late teens, but his felony record began in 2001. Osceola's prior felonies were mostly drug-related, but he also had felony convictions for hit-and-run, for destroying evidence, and for attempted first-degree assault.
The superior court found two aggravating factors under AS 12.55.155(c): aggravator (c)(15) (that Osceola had more than two prior felony convictions), and aggravator (c)(7) (that one of Osceola's prior felonies was of a more serious class than his current felonies). The superior court found no mitigating factors.
The superior court found that Osceola's prospects for rehabilitation were "guarded"; the court pointed to Osceola's "numerous" prior felonies and to his lack of response to past rehabilitative programs. The court concluded that Osceola's sentence needed to emphasize the community's condemnation of his conduct.
The sentencing judge declared that Osceola's case was "serious", but the judge also concluded that Osceola's composite sentence should not exceed 5 years to serve (the maximum term of imprisonment for any single one of Osceola's offenses). Accordingly, the judge sentenced Osceola to serve 4 years for the first count of theft and then, for each of the three remaining counts of theft, the judge imposed 4 years with all but four months concurrent (i.e., an additional 4 months to serve for each count). This yielded a composite sentence of 5 years to serve.
Osceola argues that this 5-year sentence is disproportionate to the 45-month sentence that his co-defendant wife received for the same criminal episode. But as the sentencing judge explained at the sentencing hearing, Osceola's wife's sentence was the result of a plea bargain which put a 45-month cap on her sentence. The judge imposed the maximum term of imprisonment allowed under that plea bargain.
Moreover, a sentencing decision does not rest solely on the type of criminal conduct the defendant committed; it also rests on the defendant's background. As the sentencing judge explained, one of his primary sentencing considerations in this case was Osceola's long criminal history.
Osceola also argues that the sentencing judge should have given more weight to the sentencing goal of rehabilitation, and should not have placed such emphasis on the sentencing goal of community condemnation. But under Alaska law, it is the sentencing judge's role to determine the priority and weight that the various sentencing goals should receive under the facts of a particular case. Given the facts of this case and given Osceola's lengthy criminal history, we conclude that the sentencing judge did not abuse his discretion when he decided to emphasize the goal of community condemnation over the goal of rehabilitation.
See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Ting v. Anchorage, 929 P.2d 673, 675 (Alaska App. 1997).
For all these reasons, we conclude that Osceola's sentence of 5 years to serve is not clearly mistaken. The judgement of the superior court is AFFIRMED.
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).
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