Opinion
Court of Appeals No. A-11188 No. 6090
09-03-2014
FRANK JOSEPH RICH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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. 3PA-11-72 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, David L. Zwink, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
The State charged Frank Joseph Rich with fifty misdemeanor counts of cruelty to animals. Rich entered an agreement with the State, under which he pleaded guilty to two consolidated counts of cruelty to animals. The agreement provided that Rich would be sentenced to 360 days with at least 60 days of active imprisonment on each count; all other terms were left to the discretion of the court. District Court Judge David L. Zwink sentenced Rich to 360 days in jail with 270 days suspended on each count and placed him on probation for 10 years with a condition that Rich not have any animals while on probation. The court subsequently ordered Rich to pay $59,040 in restitution to the Matanuska-Susitna Borough for expenses incurred by its animal shelter in caring for Rich's dogs.
Rich appeals, raising three arguments. First, he argues the court should have offset his restitution debt by the value of donations the shelter received in response to publicity about Rich's crimes. He acknowledges that such an offset is improper under this Court's decision in Mahan v. State, but he argues we should overrule Mahan. We find Rich's argument unpersuasive. Rich next argues his 10 years of probation is unnecessarily long and the trial court's order prohibiting him from possessing animals while on probation is unnecessarily harsh. Because the record supports the probationary term and the probation restriction on possessing animals, we affirm the trial court's ruling on those issues.
51 P.3d 962 (Alaska App. 2002).
Facts and proceedings
Rich operated a dog kennel. Over the years, Rich had difficulty caring for his dogs, and the Borough had limited the number of dogs Rich could keep. In 2007, the Matanuska-Susitna Borough animal control office issued Rich several citations, including citations for failure to provide sanitary enclosures for his dogs and failure to re-register a kennel. Rich was ordered to reduce the number of dogs in his kennel because he could not adequately care for them. According to Rich, the Borough euthanized at least 24 of his dogs because he had too many and they were not adoptable. In 2010, animal control determined Rich was over the limit of dogs set by his kennel license.
In response to a complaint, authorities inspected Rich's yard on January 9 and 10, 2011, and found approximately twenty dead dogs at the kennel. Many of the dogs still living were emaciated, dehydrated, and without food or water. Authorities took approximately 170 dogs into care at the Matanuska-Susitna Borough shelter. Most of these dogs were emaciated or grossly underweight.
Katrina Zwolinski, the veterinarian who treated the dogs, testified the dogs were dehydrated and starving to death, and possibly had been without food for a week. Many of the dogs had various untreated medical conditions, including parasites; pressure sores from protruding bones repeatedly rubbing on the ground; testicular and mammary cancer with large tumors, some of which had erupted; and urinary tract infections. One of the dogs had to be immediately euthanized because of its medical condition.
Rich told the trooper he thought approximately six dogs had died; he said they had either starved to death or frozen to death. Rich explained that he had quit his job and was having a hard time feeding the dogs, and that he prioritized food for the puppies because he could sell them.
The State charged Rich with fifty counts of cruelty to animals. Rich entered into a plea agreement with the State, pursuant to which he pleaded guilty to two consolidated counts of animal cruelty for which he would receive 360 days of jail time with a minimum of 60 days to serve on each count. The parties left the length and conditions of probation to the court to decide.
AS 11.61.140(a)(2) ("A person commits cruelty to animals if the person ... with criminal negligence, fails to care for an animal and, as a result, causes the death of the animal or causes severe physical pain or prolonged suffering to the animal[.]").
Judge Zwink found Rich's crimes were "worst offenses." He sentenced Rich to 360 days with 270 suspended on each count (a total of 180 days to serve) and placed Rich on probation for 10 years with a condition that he "is not to own, keep, possess, have custody of, or responsibility for any animal."
The State sought restitution on behalf of the Matanuska-Susitna Borough at the rate of $12 per day for 164 dogs from January 11 to February 10, 2011, for a total of $59,040 (based on a flat rate set by the Borough and charged to the general public for boarding, rather than the actual, higher cost of caring for Rich's abused dogs). The court held a restitution hearing. According to testimony at the hearing, members of the community donated various items and approximately $121,000 in response to the burden placed on the Borough to care for Rich's dogs.
Rich asked the court to offset his restitution amount by the donations received from the community. Rich argued it would be inappropriate to not offset the restitution amount by the donations because the donations would otherwise unjustly enrich the animal shelter.
Judge Zwink issued a written order denying Rich any offset. He ordered Rich to pay the full $59,040 requested by the Borough.
The court did not err in denying Rich's motion to offset his restitution by the value of donations received
Judge Zwink ordered Rich to pay restitution to the Borough for costs its animal shelter incurred in caring for his dogs. Rich argues his restitution obligation should be offset by the donations the Borough received.
In Mahan v. State, this Court held that "a defendant who is ordered to pay restitution is not entitled to a credit, an offset, or a refund for monetary donations received by the crime victim." Rich concedes that, pursuant to Mahan, Judge Zwink correctly denied his request for an offset, but he argues Mahan was wrongly decided and should be overruled.
Mahan v. State, 51 P.3d 962, 970 (Alaska App. 2002).
Rich contends this Court incorrectly concluded that a defendant will enjoy a windfall if he receives credit for donations to the victim (or an organization that cares for the victim). He argues he did not cause the Matanuska-Susitna Borough animal shelter any expenses or damages because it received donations covering all of its costs — in fact, he argues, it was enriched by Rich's crime because it took in more donations than it cost to care for his dogs.
"A prior decision should be overruled only if the court is clearly convinced that the precedent is erroneous or no longer sound because of changed conditions, and that more good than harm would result from overturning the case." Rich has not met his burden of convincing us we reached the wrong conclusion in Mahan.
Kinegak v. State, Dep't of Corr., 129 P.3d 887, 889-90 (Alaska 2006).
See Joseph v. State, 293 P.3d 488, 492 (Alaska App. 2012).
In Mahan, we discussed who should benefit from donations — the defendant or the victim (or the organization that provided services to the victim). In holding that defendants are not entitled to an offset, we relied on the assumption that the donors would want the excess money to be used for the continuing efforts of the animal shelter (in that case, the Alaska Equine Rescue organization) or have the money refunded, rather than have their donations credited to the defendant. Additionally, we noted,
Mahan, 51 P.3d at 969.
restitution serves two goals: not only restoring victims, but also making defendants pay the expenses they have caused by their criminal conduct. This second goal would not be served if defendants received credit for money that crime victims received from sympathetic members of the community. Under such a rule, defendants would, in effect, be enriched by these donations: ... the donations would reduce the amount of the defendant's unpaid restitution obligation ... . This result would discourage the community from coming to the aid of a crime victim.For these reasons, we concluded donated money should not reduce the amount of restitution the offender has to pay. Thus, we specifically considered and rejected Rich's arguments. Rich has not convinced us we should overrule our precedent in Mahan.
Id. at 969-70 (citation omitted).
Id. at 970.
See also W.S. v. State, 174 P.3d 256, 258-60 (Alaska App. 2008) (approving a restitution order to a counselor who donated services to the victim of a crime); Yannello v. State, 2014 WL 1691542, at *1, 4 (Alaska App. April 23, 2014) (unpublished) (upholding restitution order for amount medical providers "wrote off" of victim's medical bills).
Rich's term of probation
Rich argues that sentencing him to the maximum period of probation was excessive because other cruelty to animals cases in which long probationary terms have been upheld have involved more serious facts, offenders with worse criminal records, or less jail time. Because he was a first-time offender and received a significant sentence of 180 days' jail time, he claims his probationary term should be shorter.
We upheld a 10-year period of probation in Mahan. Mahan was charged with cruelty to animals after authorities found "over 130 animals on her property, including 9 horses, 2 llamas, 10 cows, 18 sheep, 1 goat, 34 pigs, 21 dogs, 10 cats, 18 assorted birds, and a number of rabbits." The animals were in ill health and not adequately cared for. Mahan was a first-time offender and was convicted of one consolidated count of misdemeanor cruelty to animals. In that case, the judge found Mahan's conduct was "among the worst offenses" and "that it was 'beyond argument that the[] animals were severely abused over a long period of time.'" This Court affirmed the 10-year probationary term.
Id. at 963.
Id.
Id. at 963, 966.
Id. at 966.
Id.
Judge Zwink found that Rich's offense was worse than that in Mahan, Rich's conduct was a "worst offense," and Rich had a hoarding problem so severe that Judge Zwink considered it an addiction that hurt others. Judge Zwink pointed out that the animal cruelty in Mahan did not involve the death of animals, whereas Rich's conduct resulted in the death of forty to seventy dogs. Mahan kept her animals as pets; Rich maintained his kennel as a business.
The officers found at least 19 dead dogs at Rich's kennel when they initially inspected it, one dog was immediately euthanized because of its "really bad health condition," and between 20 and 50 dogs later had to be euthanized for health issues and for behavioral issues caused by Rich's failure to socialize them.
Judge Zwink also pointed out that Rich had a history of keeping too many dogs and had been told to reduce the size of his kennel. The Borough had previously euthanized twenty-four of Rich's dogs because he was not adequately caring for all of the animals he had. In sentencing Rich, Judge Zwink focused on the factors of deterrence and reaffirmation of societal norms; he placed little weight on the goal of rehabilitation.
Based on this record, we conclude Judge Zwink was not clearly mistaken when he imposed a probationary term of 10 years.
The condition of probation prohibiting Rich from possessing animals
Rich argues Judge Zwink erred in ordering him to not possess any animals during his period of probation. He compares his case to Mahan and Allen v. Anchorage, two animal cruelty cases in which defendants were allowed to have an animal while on probation.
51 P.3d at 966 (noting conditions of probation, which limited Mahan to not possessing more than one animal during the period of probation and not possessing any horses, were not facially unreasonable but holding the issue was waived by inadequate briefing).
168 P.3d 890, 891 (Alaska App. 2007) (prohibiting Allen from possessing any animals other than her son's dog during the period of probation).
A sentencing judge has broad authority to impose conditions of probation on a defendant. However, conditions of probation "must be reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty."
Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977); State v. Tomas, 133 P.3d 684, 685 (Alaska App. 2005); Edison v. State, 709 P.2d 510, 511 (Alaska App. 1985).
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We agree with Rich that a ban on possessing any animals could be problematic if a defendant's record does not support such a strict restriction. But in Rich's case, the record supports Judge Zwink's order. Rich had a long history of neglecting his dogs, and he had been ordered to reduce the number of dogs he kept. The Borough previously had to euthanize many of Rich's dogs because he was not adequately caring for them. In this case, officials found Rich's dogs in very serious condition with a number of them dead from Rich's failure to care for them. The Borough had to euthanize even more of the animals because of the effects of Rich's conduct.
The trial court found that Rich had hoarded dogs, could not care for them, and could not stop himself from accumulating more dogs. This finding is supported by the record and justifies the probation condition that he not own any animals.
Conclusion
We AFFIRM the judgment of the district court.