Opinion
Court of Appeals No. A-11087 Trial Court No. 2KB-10-635 CR No. 6014
01-15-2014
ISAAC K. RUSSELL, Appellant, v. STATE OF ALASKA, Appellee.
David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Gustaf Olson, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Paul A. Roetman, Judge.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Gustaf Olson, 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.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge HANLEY.
A jury convicted Isaac K. Russell of manufacturing alcohol in a local option community. On appeal, Russell asserts that the State presented insufficient evidence that he manufactured alcohol. We have reviewed the record and conclude that the evidence was sufficient to support his conviction.
AS 04.11.010(a); AS 04.16.200(b), (h).
Russell also contends that the trial court improperly failed to find that the offense was mitigated because it constituted the "least serious" conduct included within the definition of the offense. We do not reach this issue because of a flaw we discovered in Russell's sentence. Russell was sentenced as a second felony offender, when in fact he should have been sentenced as a third felony offender. Accordingly, Russell must be resentenced. Upon resentencing, he can present his argument to the superior court that the "least serious" mitigator applies.
Facts and proceedings
When this Court reviews a defendant's claim that the evidence is insufficient to support a criminal conviction, it must view the evidence (and all reasonable inferences to be drawn from that evidence) in the light most favorable to upholding the verdict. The facts of Russell's case are therefore presented in that light.
Richards v. State, 249 P.3d 303, 304-05 (Alaska App. 2011).
On November 11, 2010, Hazel Cleveland called Ambler Village Police Officer Jeff Melton and reported that her boyfriend Isaac Russell was intoxicated. When Officer Melton arrived at Russell's and Cleveland's home, he found Russell sitting on the couch, intoxicated, with a glass of purplish liquid in his hand and a gallon jug on the floor next to him. Russell admitted to Melton that he had made home-brewed alcohol, then said, "If I'm going to go, I might as well show it all." He then opened his washing machine and revealed another four one-gallon jugs containing homebrew. Melton also saw a five-gallon bucket containing a substance in the bottom that looked like yeast and muddy water. Melton took a sample of the homebrew, which was later determined to contain ethyl alcohol at a concentration of 8.9 percent.
Melton arrested Russell and transported him to the Ambler jail. The next morning Alaska State Trooper Austin MacDonald took custody of Russell and they boarded an airplane for a flight to Kotzebue. While boarding the plane, Russell stated, "Don't be like me, I made ten gallons and now I'm going to jail."
Ambler is a local option community. Thus, Russell's act of illegally manufacturing alcohol was a class C felony. A jury found him guilty of the offense. Superior Court Judge Paul A. Roetman sentenced Russell to 4 years of imprisonment with 2 years suspended.
AS 04.11.010(a); AS 04.16.200(b).
The State presented sufficient evidence to prove that Russell manufactured the homebrew
On appeal Russell asserts the State did not present sufficient evidence to support the jury's verdict. Russell's defense at trial was that he drank homebrew, but did not manufacture it.
When a verdict is challenged as lacking a sufficient basis in the evidence, the question is whether the evidence and the inferences to be drawn from it, viewed in the light most favorable to upholding the verdict, are sufficient to support a conclusion by fair-minded jurors that the State met its burden of proof.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
Russell attacks the credibility and testimony of the witnesses presented by the State. However, when this Court assesses the sufficiency of evidence to support a conviction, it does not weigh the evidence or judge anew the credibility of the witnesses. When viewed in the light most favorable to upholding the verdict, the totality of the evidence constitutes a sufficient basis for fair-minded jurors to conclude that Russell manufactured the homebrew. The evidence was therefore sufficient to support the jury's verdict.
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
The trial court did not properly consider Russell's prior felony convictions in imposing his sentence
Russell was convicted of a class C felony, for which the maximum term of imprisonment is 5 years. A first felony offender would face a presumptive range of 0 to 2 years; a second felony offender would face a presumptive range of 2 to 4 years; and a third felony offender would face a presumptive range of 3 to 5 years.
AS 12.55.125(e).
AS 12.55.125(e)(1)-(3).
In addition to the current offense, Russell has three prior felony convictions. He was convicted of burglary in 1977, and felony theft in 1978. In 2005, he was convicted of another felony for illegally manufacturing alcohol in Ambler. Russell's attorney and the State agreed that Russell's current offense constituted his fourth felony conviction. However, the parties and the court viewed Russell as a second felony offender, operating as if his 1977 and 1978 felonies were not relevant to his sentencing status, based on an incorrect interpretation of this court's holding in Gilley v. State.
955 P.2d 927 (Alaska App. 1998).
Alaska Statute 12.55.145(a)(1)(A) provides a "look-back" period of ten years for determining which prior felonies constitute "prior convictions" for purposes of presumptive sentencing. In Gilley, we interpreted this statute to mean that if the interval between a defendant's current offense and his unconditional discharge from the immediately preceding felony conviction is less than ten years, then all of the defendant's prior felony convictions are counted toward determining the applicable presumptive sentencing range, regardless of how old those convictions are. Further, the sentencing court has no discretion to ignore these felonies unless they are expressly exempted by statute.
Id. at 930.
Id.
In the present case, the trial court misinterpreted Gilley, concluding that it had the discretion to disregard Russell's 1977 and 1978 felony convictions. However, because ten or more years had not elapsed between the unconditional discharge from Russell's 2005 felony and his current offense, the older felony convictions were not exempt. The sentencing court was required to consider them, to sentence Russell as a third felony offender, and to apply the appropriate presumptive sentencing range — 3 to 5 years. As stated above, Russell received a sentence of only 2 years to serve (4 years with 2 suspended). Absent any mitigating factors, Russell's 2-year sentence would be illegal. We therefore remand this case for resentencing.
See AS 12.55.125(g)(1).
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Russell may renew his "least serious" mitigator claim at resentencing
Prior to sentencing, Russell filed a sentencing memorandum requesting the court to apply the mitigating factor of "least serious conduct" defined in AS 12.55.155(d)(9). He argued that his offense involved a relatively small amount of homebrew with a low alcohol content, and that the alcohol was for personal use in his own home and did not involve bootlegging or sale. He also contended that the majority of households in Ambler engaged in making homebrew. The sentencing judge rejected this mitigator.
On appeal, Russell challenges the judge's basis for rejecting the mitigator, but he advances a different rationale from the one he presented to the trial court. Because we are remanding this case for resentencing, we do not reach this claim of error. Russell may present his arguments to the trial court at resentencing.
Conclusion
We AFFIRM Russell's conviction for illegally manufacturing alcohol in a local option community. We REMAND the case to the trial court for resentencing. We do not retain jurisdiction.