Opinion
Court of Appeals No. A-11187 Trial Court No. 3PA-09-3257 CR No. 6057
05-21-2014
JOSEPH D. PACKARD, Appellant, v. STATE OF ALASKA, Appellee.
Marcelle K. McDannel, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Marcelle K. McDannel, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Trina Sears, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Judge MANNHEIMER, concurring.
Joseph D. Packard pleaded guilty to second-degree assault for choking his girlfriend and to fourth-degree assault for recklessly causing physical injury to his girlfriend's eight-year-old daughter. Following a sentencing hearing, the superior court imposed a composite term of 72 months with 32 months suspended, plus 5 years of probation.
Packard argues that the superior court erred by failing to mitigate his sentence for the second-degree assault based on "serious provocation" by the victim. He also argues that his composite sentence is excessive and that probation conditions requiring him to submit to drug and alcohol testing and warrantless searches for drugs are not reasonably related to his rehabilitation or the protection of the public. For the reasons discussed below, we affirm the judgment of the superior court.
Packard also points out, correctly, that the superior court did not fully comply with the requirements of Alaska Criminal Rule 32.1(f)(5) when it redacted information from the presentence report. We therefore remand the case to the superior court for the limited purpose of ensuring that the presentence report complies with this rule.
Background facts and proceedings
In December 2009, the Alaska State Troopers received a report of domestic violence at Packard's residence in Wasilla. When the troopers arrived at the residence, Packard's girlfriend, Carrie Pinckley, told them she and Packard had been arguing, and that Packard had broken down the bedroom door, threatened to kill her, and strangled her with a t-shirt to the point of unconsciousness. Pinckley said Packard had also "body-slammed" her eight-year-old daughter into the couch. The troopers interviewed Packard, who admitted to only a verbal argument, followed by some pushing and shoving.
Packard was subsequently indicted on one count of first-degree attempted murder, two counts of second-degree assault, three counts of third-degree assault, two counts of fourth-degree assault, and one count of fourth-degree criminal mischief (for damaging the bedroom door).
In October 2011, Packard entered a plea agreement with the State. Packard agreed to plead guilty to second-degree assault against Pinckley and fourth-degree assault against Pinckley's daughter. In exchange for Packard's plea, the State dismissed the other charges. Packard stipulated to two aggravating factors; sentencing was otherwise open.
AS 11.41.210(a)(2).
AS 11.41.230(a)(1).
At the sentencing hearing, Packard claimed that the statutory mitigator for "serious provocation" applied to his conviction for second-degree assault because Pinckley initiated the altercation by attacking him with a frying pan. The superior court rejected Packard's proposed mitigator and sentenced Packard to 5 years with 2 years suspended for the second-degree assault. The court imposed an additional 12 months with 8 months suspended for the fourth-degree assault, with the jail terms to be served consecutively. The court also imposed 5 years of probation. Several of Packard's conditions of probation required him to submit to drug and alcohol testing and warrantless searches for drugs and alcohol.
Packard appeals his sentence and the conditions of his probation.
Packard did not establish the "serious provocation" mitigator
Packard argues that the superior court erred by rejecting his proposed mitigating factor of "serious provocation." Under AS 12.55.155(d)(6), a felony assault is mitigated if "the defendant acted with serious provocation from the victim." In this context, "serious provocation" means "conduct ... sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be." When we review a claim that the trial court erred by rejecting a proposed mitigating factor, we review the trial court's findings of historical fact for clear error, but decide de novo whether the proposed mitigator was established by those facts.
See State v. Smith, 229 P.3d 221, 225 (Alaska App. 2010).
AS 11.41.115(f)(2); see also Smith, 221 P.3d at 225.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Packard, Pinckley, and Pinckley's daughter all testified at the sentencing hearing, providing two widely divergent accounts of the incident. Packard testified that he told Pinckley he was leaving her, and that she attacked him with a frying pan. He said after he wrested the frying pan from Pinckley, they continued to push and shove each other, at which point Pinckley's daughter got between them. Packard said he threw the daughter on the couch to get her out of harm's way. The daughter then left to call the police. After things calmed down, Packard tried to call his brother, but Pinckley put a kitchen knife to his throat. Packard squeezed Pinckley's hand to get her to drop the knife, and she bit his hand. Packard said he then grabbed Pinckley by the throat with his other hand to force her to release the hand she had in her mouth. On cross-examination, Packard admitted he did not tell the troopers about the frying pan or the knife or about grabbing Pinckley by the throat.
Pinckley testified that she and Packard had been arguing and that Packard pushed her into a bedroom, where she fell into a dresser and bruised her shoulder. Pinckley said that during the altercation that followed, Packard choked her twice, the second time with a ripped t-shirt until she was unconscious. She said Packard told her if he was going to jail, he was going to kill her. Pinckley also testified that Packard grabbed her daughter and threw her over the couch after Pinckley told her daughter to get help. Pinckley denied threatening Packard with a knife or a frying pan.
Pinckley's daughter testified that she saw Packard choke her mother and that she went to a neighbor's house to call the police. She also said Packard threw her over the couch and told her not to leave the house. She said she never saw her mother pick up a knife or a frying pan.
Superior Court Judge Gregory Heath found that Packard's version of events was not credible, and that Packard therefore had not established a factual basis for the "serious provocation" mitigator.
Packard contends that Judge Heath's credibility findings are clear error. He argues that the record shows that Judge Heath did not really assess the credibility of Pinckley's testimony, but rather accepted her testimony uncritically.
We disagree with Packard's view of the record. Judge Heath made specific findings explaining why he did not believe Packard's testimony. He noted that neither Pinckley nor her daughter corroborated Packard's claim that Pinckley attacked him with a frying pan and a knife. He also noted that Packard did not provide any of these potentially exculpatory details to the troopers on the night of the incident. In addition, the judge observed that, after an earlier domestic violence incident involving Pinckley, Packard made a similar claim that Pinckley had attacked him with a weapon — in that case, a two-by-four — and yet Packard had made no mention of this two-by-four when he was arrested for that incident. Judge Heath's findings, and his conclusion that Packard's testimony was not credible, are supported by the record. Based on those findings, we conclude as a matter of law that Packard failed to establish the "serious provocation" mitigator.
Packard's sentence is not excessive
Packard next argues that his composite sentence of 72 months with 32 months suspended (3 years and 4 months to serve) is excessive, given his "extraordinary personal efforts at rehabilitation."
As a first felony offender, Packard faced a presumptive sentencing range on his second-degree assault conviction of 1 to 3 years, and a maximum sentence of 10 years. Packard stipulated to two aggravating factors in his plea agreement: AS 12.55.155(c)(18)(A) (the victim lived in the same residence with the defendant), and AS 12.55.155(c)(18)(C) (the domestic violence crime was committed in the presence of a child). Packard also faced a mandatory minimum sentence of 60 days, and a maximum sentence of 1 year, for his misdemeanor assault conviction.
AS 11.41.210(b); AS 12.55.125(d)(1).
AS 11.41.230(a)(1); AS 12.55.135(a), (g)(2).
Although Packard was a first felony offender, this was not his first domestic violence offense. Packard had two prior convictions for fourth-degree domestic violence assault arising out of an incident in 2007. He was also charged with domestic violence crimes in 2004 and earlier in 2009 (the 2009 charges also involved Pinckley), but those charges were dismissed.
Judge Heath recognized that Packard, who was twenty-eight years old when he was sentenced, was still a youthful offender with potential for rehabilitation. But the court also placed significant weight on the Chaney criteria of deterrence, community condemnation, and reaffirmation of societal norms. The judge observed that domestic violence is a "severe issue" in Alaska and that Packard had exhibited a "classic domestic violence pattern." The judge also found it "obvious" from the photographs and the testimony that Packard's assault on Pinckley was a serious one. The assault — which was originally charged as attempted murder — placed Pinckley in fear for her life, and Pinckley testified she was left with permanent injuries to her throat.
Packard argues that Judge Heath should have placed greater emphasis on his potential for rehabilitation because of the "extraordinary effort [he has] made to improve himself" while incarcerated. But from our review of the record, we cannot say that the sentencing court was clearly mistaken in the relative weight it placed on the Chaney criteria. Packard had a history of domestic violence and, in this case, he committed an aggravated assault against his domestic partner, as well as an assault on her child, who had just witnessed Packard strangling her mother. We conclude that Judge Heath was not clearly mistaken in the sentence he imposed.
See LaLonde v. State, 614 P.2d 808, 811-12 (Alaska 1980); Hawley v. State, 648 P.2d 1035, 1038 (Alaska App. 1982).
Why we uphold Packard's conditions of probation
To be valid, a condition of probation need not directly relate to the offense for which the defendant is sentenced. However, the condition "must be reasonably related to the rehabilitation of the offender and the protection of the public" and not be "unduly restrictive of [the probationer's] liberty."
Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
Prior to sentencing, Packard filed a pleading objecting to various probation conditions that he claimed had been "designed to regulate someone with an established problem with alcohol or illegal narcotics." He asserted that these conditions were not reasonably related to his rehabilitation or protection of the public because he did not have a record of alcohol or substance abuse and was not intoxicated at the time he committed the offenses in this case.
However, at the sentencing hearing Packard abandoned his challenge to the probation conditions requiring him to submit to drug testing and warrantless searches for drugs. Instead, Packard only objected to a requirement to complete a domestic violence program, and "the [six] conditions restricting him ... from any use of alcohol or residing in a residence where alcohol is present."
Judge Heath imposed the domestic violence program condition but agreed that Packard "doesn't seem to have a drinking problem, from what I've seen so far." The judge therefore modified Packard's general conditions of probation to allow him to consume alcoholic beverages — as long as he did not consume them "to excess." The judge also eliminated several special conditions of probation that would have precluded Packard from possessing and consuming alcohol, entering bars or liquor stores, or living in a residence where alcoholic beverages were present. The judge also limited Packard's requirement to submit to a substance abuse evaluation only if he "had a dirty UA for illegal controlled substances, including marijuana."
Following these modifications, Packard made no further objection to the conditions of his probation, and he never asked the judge to rule on his earlier request to strike the conditions requiring him to submit to drug testing and warrantless searches for drugs.
See Jonas v. State, 773 P.2d 960, 963 & n.2 (Alaska App. 1989) (holding that the proponent of a motion has the duty to ensure that a ruling is made).
On appeal, Packard argues that the court erred because it did not also eliminate the requirement that he submit to alcohol testing when directed to do so by his probation or parole officer. He argues that this probation condition is not warranted in his case, since his conditions of probation do not prohibit him from consuming alcohol. But as the superior court explained at the sentencing hearing, the court allowed Packard to consume alcohol as long as he did not do so "to excess." The court imposed the probation condition requiring Packard to submit to alcohol tests to ensure that he did not drink to excess — that is, to address the situation in which Packard "gets picked up for a drinking incident or comes in[to] the [probation] office severely drunk — something rises to that [level], then the probation officer can request that." We conclude that the condition allowing Packard's probation or parole officer to order an alcohol test is reasonably related to Packard's rehabilitation and the protection of the public, given the evidence that alcohol has played a role in at least one of Packard's prior incidents of domestic violence.
Packard also asks us to vacate the conditions of his probation that require him to submit to drug tests and warrantless searches for drugs. But as we already explained, Packard abandoned his challenge to these probation conditions at the sentencing hearing. Given Packard's cursory treatment of this issue on appeal, and his failure to preserve the issue below, we cannot conclude that the probation conditions requiring Packard to submit to drug testing and warrantless searches for drugs are so restrictive of his liberty and so unrelated to his rehabilitation or protection of the public that the judge should have eliminated these conditions in the absence of an objection. We find no plain error.
Id. at 963-64 ("A finding of plain error is appropriate only if the error affects a substantial right and is obviously prejudicial.").
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The presentence report must comply with Criminal Rule 32.1(f)
At the sentencing hearing, the judge struck a number of disputed assertions from Packard's presentence report. However, the factual assertions the judge crossed out are still legible. When a court determines that Alaska Criminal Rule 32.1(f)(5) requires a disputed assertion to be "deleted" from the presentence report, the court must black out or otherwise remove the assertion, so that it is no longer a legible part of the report. The current version of the report does not comply with this rule.
Conclusion
We REMAND this case to the superior court for the limited purpose of ensuring that its alterations to the presentence report comply with the requirements of Alaska Criminal Rule 32.1(f). In all other respects, we AFFIRM the judgment of the superior court.
We do not retain jurisdiction of this case.