Opinion
Court of Appeals No. A-11831 No. 6112
11-05-2014
LARRY A. REIGER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jim Corrigan, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Amy Williams, Assistant District Attorney, 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. 1JU-12-1165 CR MEMORANDUM OPINION Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Jim Corrigan, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Amy Williams, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Pursuant to a plea agreement, Larry A. Reiger pleaded guilty to second-degree theft and fourth-degree assault, and the State dismissed charges of second-degree robbery and first-degree impersonation of a public servant. Under the plea agreement, sentencing was open. Superior Court Judge Philip M. Pallenberg sentenced Reiger to a composite sentence of 5 years to serve: 4½ years for the theft, and a consecutive term of 6 months for the assault.
This appeal arises because Judge Pallenberg rejected Reiger's proposed mitigating factor AS 12.55.155(d)(9) — that the conduct underlying Reiger's theft offense was among the least serious within the definition of that crime. Reiger claims that this was error.
In order to evaluate the superior court's ruling on the proposed mitigator, we must recapitulate the facts of Reiger's case.
Reiger approached a sixteen-year-old boy, told him that he was a police officer, and claimed that he needed to confiscate his backpack. When the teenager asked Reiger to produce some identification to confirm that he was a police officer, Reiger kicked the backpack out of the boy's hands. In doing so, Reiger also kicked the boy's shin. Reiger then fled, taking the backpack with him. The backpack and its contents were valued at approximately $500.
Reiger was soon apprehended by the Juneau police, and he was charged with second-degree robbery, second-degree theft (theft of property worth $500 or more), first-degree impersonation of a public servant, and fourth-degree assault. As we have explained, Reiger ultimately pleaded guilty to the theft and assault charges, and the State dismissed the counts charging robbery and impersonation of a public servant.
AS 11.41.510(a)(1), AS 11.46.130(a)(1), AS 11.56.827, and AS 11.41.230(a)(1).
Theft in the second-degree is defined as theft of property worth between $500 and $25,000. At sentencing, Reiger argued that his theft offense was among the least serious within the definition of this offense because the value of the stolen property was at the low end of this range.
AS 11.46.130(a)(1).
In rejecting this proposed mitigator, Judge Pallenberg acknowledged that the value of the stolen property was just barely within the range for second-degree theft. But the judge found that Reiger's conduct fell within the "core" of the offense because Reiger's conduct also qualified as second-degree theft for an independent reason — because Reiger took the property from the victim's person. See AS 11.46.130(a)(3). In fact, Judge Pallenberg suggested that Reiger's conduct was among the most serious thefts — that Reiger's conduct bordered on second-degree robbery — because Reiger used force to take the property from the victim.
Based on these factors, Judge Pallenberg concluded that Reiger had failed to prove that his conduct was among the least serious included within the definition of second-degree theft.
Under Alaska law, this Court must independently evaluate whether, under the facts found by the sentencing court, Reiger proved that his conduct was among the least serious within the definition of the offense. The record amply supports Judge Pallenberg's findings of fact. And based on those facts, we independently conclude that Reiger failed to prove the proposed mitigator. We therefore uphold the superior court's decision.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
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The judgment of the superior court is AFFIRMED.