Opinion
Court of Appeals No. A-10536.
September 14, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-07-7227 CR.
Andrew Steiner, Bend, Oregon, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Rickey Paul Sizemore was convicted of assault in the first degree and assault in the third degree. Superior Court Judge Eric A. Aarseth found that Sizemore was a third felony offender for purposes of presumptive sentencing, based on Sizemore's prior out-of-state felony convictions. As a third felony offender, Sizemore faced a presumptive term of fifteen to twenty years of imprisonment for assault in the first degree and a presumptive term of three to five years for assault in the third degree. Judge Aarseth sentenced Sizemore to twenty years to serve for assault in the first degree and to three years to serve for assault in the third degree. Judge Aarseth imposed one of the years for assault in the third degree consecutively to the sentence for assault in the first degree. Therefore, Sizemore's composite sentence was twenty-one years of imprisonment.
AS 11.41.200(a)(1) AS 11.41.220(a)(1)(A).
AS 11.41.200(b); AS 12.55.125(c)(4); AS 11.41.220(e); AS 12.55.125(e)(3).
In this appeal, Sizemore argues that Judge Aarseth erred in sentencing him as a third felony offender. He contends that his prior out-of-state convictions did not qualify as prior felonies for purposes of presumptive sentencing under Alaska law.
Alaska Statute 12.55.145(a)(1)(B) provides that a prior conviction in another jurisdiction is counted as a prior felony for purposes of presumptive sentencing if the offense had "elements similar to those of a felony defined as such under Alaska law at the time the offense was committed." The two offenses can be "`similar' even though they do not completely overlap in their coverage." Sizemore's appeal turns on his contention that his prior felony conviction in Florida for criminal mischief did not have elements similar to the Alaska criminal mischief statute.
State v. Simpson, 53 P.3d 165, 170 (Alaska App. 2002) (citing Borja v. State, 886 P.2d 1311, 1314 (Alaska App. 1994)).
In 1999, Sizemore was convicted in Florida of one count of burglary and two counts of criminal mischief. Judge Aarseth apparently treated these convictions as a single prior felony offense because they arose out of a single continuous criminal episode. The State does not challenge this finding.
See AS 12.55.145(a)(1)(C).
Sizemore was convicted of criminal mischief under Florida Statute 806.13(1)(b)(3), which provided:
A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another. . . . If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree.
In 1999, the corresponding Alaska criminal mischief statute, AS 11.46.482, provided that a person committed the felony crime of criminal mischief in the second degree if "with intent to damage property of another, the person damages property of another in the amount of $500 or more."
Sizemore argues that the 1999 Florida criminal mischief statute was not similar to the corresponding Alaska statute because, under the Florida statute, the valuation of the damage caused by the defendant could be based on the resulting cost of restoring a business operation or a public service. Sizemore argues that the cost of restoring business operations or public services was not encompassed by Alaska's criminal mischief statute.
Both the Florida criminal mischief statute and the Alaska statute required proof of the defendant's criminal intent to damage property of another. And although the Florida statute expressly stated that the damage caused by the defendant can be measured based on the cost of restoring a business operation or public service, nothing in the Alaska statute appears to have precluded consideration of these costs when assessing the amount of damage caused by a defendant. Sizemore offers no legal authority in support of his contention that the Alaska statute excluded consideration of these matters.
The essence of both statutes is that the defendant intentionally caused substantial damage to another person's property. And the amount of damage specified in the Florida statute was twice the amount specified in the Alaska statute. We therefore conclude that the Florida criminal mischief statute qualified as an offense with "elements similar to those of a felony defined as such under Alaska law at the time the offense was committed."
AS 12.55.155(a)(1)(B); Simpson, 53 P.3d at 170.
Sizemore does not contest that in 1990 he was convicted of a felony assault in North Carolina and that this conviction had elements similar to an Alaska felony assault statute. But Sizemore contends that the North Carolina conviction is too remote in time. Sizemore relies on AS 12.55.145(a)(1)(A), which provides that a court may not consider a prior conviction "if a period of 10 or more years has elapsed between the date of the defendant's unconditional discharge on the immediately preceding offense and commission of the present offense unless the prior conviction was for an unclassified or class A felony." Sizemore's argument about the North Carolina felony relies on his contention that it was improper for Judge Aarseth to find that Sizemore was convicted of a felony in Florida in 1999 that had elements similar to a felony in Alaska.
Because we conclude that the Florida criminal mischief statute had elements similar to the Alaska criminal mischief statute, Judge Aarseth properly considered this prior 1999 felony for purposes of presumptive sentencing. It therefore follows that Judge Aarseth could properly consider Sizemore's 1990 conviction in North Carolina for assault. Therefore Judge Aarseth did not err in sentencing Sizemore as a third felony offender.
The judgment of the superior court is AFFIRMED.