Opinion
Court of Appeals No. A-12944 No. 6759
01-23-2019
JOSHUA JACOB REED, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Krista N. Anderson, Assistant District Attorney, Palmer, and Jahna Lindemuth, 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. 3PA-16-824 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Krista N. Anderson, Assistant District Attorney, Palmer, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
Joshua Jacob Reed was convicted, pursuant to a plea agreement, of one count of promoting contraband in the first degree. This conviction was based on an incident in which Reed solicited another individual to smuggle Suboxone to him during a prison visit.
See AS 11.56.375(a)(3).
As a second felony offender, Reed faced a presumptive sentencing range of 1 to 3 years under the recently revised presumptive ranges for class C felonies. The superior court found statutory aggravator AS 12.55.155(a)(31) — that Reed's prior criminal history included five or more class A misdemeanor convictions. (Reed's criminal history included twelve prior convictions.) The superior court relied on this aggravator to impose a sentence above the presumptive range, imposing a sentence of 4 years to serve with no suspended time.
See AS 12.55.125(e)(2).
See AS 12.55.155(a).
The superior court explained that its decision to impose a sentence above the presumptive range was based on Reed's extensive criminal history, his prior failures at treatment, his failures under supervision, and his multiple disciplinary infractions of increasing severity while in prison — infractions which included stealing, threatening to harm another person, possessing a weapon, assaulting another inmate, and again attempting to smuggle contraband into prison on the day he was set to begin trial in this case. The court concluded that, given this history, rehabilitation was no longer a focus for sentencing, and the sentencing goals of reaffirmation of societal norms, and general deterrence should be prioritized instead. The court also eliminated Reed's eligibility for discretionary parole based on this same reasoning.
See AS 12.55.115.
At the sentencing hearing, Reed's defense attorney requested that the court find statutory mitigator AS 12.55.155(d)(9) — that Reed's conduct was among the least serious conduct included in the definition of the offense. The superior court agreed with the defense attorney that Reed's conduct was among the least serious based on the small quantity of drugs found, and the fact that the drug was Suboxone. Suboxone is a schedule VA controlled substance that is used medically to assist persons with withdrawal from opioid addiction. Possession of Suboxone is a class A misdemeanor. However, the court gave only a "small amount of weight" to the statutory mitigator in its sentencing decision, finding that the statutory aggravator and Reed's extensive criminal history were entitled to significantly more weight.
See AS 11.71.180(d).
AS 11.71.050.
Reed now appeals his sentence, raising four different arguments.
First, Reed argues that his sentence is excessive, and he claims that the sentencing court focused too much on isolation and not enough on rehabilitation. We have reviewed the sentencing court's remarks and find no error. Given Reed's criminal history, his multiple failures at treatment, his multiple failures on felony probation, and his multiple disciplinary infractions while in prison, the sentencing court's decision not to prioritize rehabilitation was not clearly mistaken.
Second, Reed argues that the sentencing court gave no weight to the "least serious conduct" mitigator. This is a misrepresentation of the sentencing court's remarks. The sentencing court stated that it was "giving some small amount of weight to the [least serious conduct] mitigator," but that it was giving more weight to the prior criminal history aggravator. Given the facts of this case, that determination was not clearly mistaken.
Third, Reed argues that the sentencing court never adequately explained why Reed should not be sentenced at the low end of the sentencing range. This is again a misrepresentation of the record. The court explained its consideration of the Chaney factors in detail, and also explained in detail why it believed that a sentence above the applicable presumptive range was required in this case, given Reed's history. We find that the sentencing court adequately explained its rationale for imposing this greater sentence, and that the court's sentence was not clearly mistaken.
Lastly, Reed argues that the sentencing court failed to provide an adequate explanation for why it denied Reed discretionary parole eligibility. A sentencing court's decision to restrict a defendant's eligibility for discretionary parole "must be supported by 'expressly articulated reasons' — reasons that are case-specific, and that are backed by substantial evidence in the record." Here, the superior court provided multiple, well-articulated reasons for why the court believed that discretionary parole was inappropriate, focusing in particular on the significant history of disciplinary infractions that Reed had accrued while in jail. Given the case-specific reasons articulated here, we conclude that the restriction on Reed's discretionary parole was not clearly mistaken.
See Thomas v. State, 413 P.3d 1207, 1213 (Alaska App. 2018) (quoting State v. Korkow, 314 P.3d 560, 565 (Alaska 2013)); see also AS 12.55.115. --------
Accordingly, we AFFIRM the judgment of the superior court.