Opinion
Court of Appeals No. A-9788.
March 26, 2008.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Natalie K. Finn, Judge, Trial Court No. 4BE-06-346 CR.
Megan-Brady Viccellio, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Regan Williams, Assistant Attorney General, Rural Prosecution Unit, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey Dean Soots argues that the 365-day term imposed for his conviction for attempted third-degree sexual assault is excessive. But Soots was also sentenced for a violation of a condition of release. When a defendant is sentenced for more than one crime, we must be convinced under the totality of the circumstances that the composite term for all the offenses is excessive. From our review of the record, we are unable to conclude that Soots's composite term is clearly mistaken. Therefore, we affirm.
AS 11.41.425(a)(1)(C) AS 11.31.100.
AS 11.56.757(a).
Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
Background facts and proceedings
On March 10, 2006, C.J. passed out on a sofa after she and her friends concluded a night of drinking at Soots's residence. She woke up and discovered that Soots was rubbing her genitals through her clothing. C.J. asked Soots what he was doing. Soots stood up immediately and left the room.
The grand jury charged Soots with one count of third-degree sexual assault. Before trial, the parties litigated the admissibility of Soots's prior third-degree sexual assault conviction under Evidence Rule 404(b)(1). Over ten years earlier, Soots had assaulted a relative of his wife who was asleep on a sofa in his residence; Soots had rubbed that victim's genitals under her clothing. Superior Court Judge pro tem Natalie K. Finn concluded that the evidence was admissible.
As trial began, the parties announced they had reached a plea agreement. Soots pleaded to the reduced charge of attempted third-degree sexual assault. Soots also pleaded to violating a condition of release in this case.
At sentencing, the State discussed Soots's prior record. In addition to Soots's 1996 felony conviction for third-degree sexual assault, Soots had breath test refusal convictions in 1995 and 1990, and a driving under the influence conviction in 1992.
Judge Finn found that the State's evidence in this case would have supported a conviction for third-degree sexual assault, not just the attempt to commit that crime. Judge Finn also found that Soots's conduct in this offense was "virtually identical" to Soots's conduct in his prior third-degree sexual assault case. Judge Finn pointed out that Soots had an alcohol problem, and that Soots's violation of a condition of release was based on consuming alcohol in violation of his bail conditions. Judge Finn considered the sentencing criteria and found that isolation of Soots was "pretty much at the top of the list."
Judge Finn imposed a 365-day term for attempted third-degree sexual assault. Judge Finn found that under Neal v. State, a composite term exceeding the maximum sentence for the most serious individual offense was appropriate. She therefore imposed a 12-month term with 8 months suspended for Soots's violation of a condition of release, consecutive to the attempted sexual assault charge.
628 P.2d 19 (Alaska 1981).
Soots attacks the 365-day sentence imposed for attempted third-degree sexual assault. Soots points out that Judge Finn did not explicitly find that he was a worst offender. Normally, before a sentencing court imposes the maximum term for an offense, the court must find that there is "some foundation for characterizing the defendant as the worst type of offender." However, Judge Finn implicitly recognized that Soots was a worst offender for the attempted sexual assault charge because she found that in order to protect the public, it was necessary to impose more imprisonment than the maximum sentence for the attempted sexual assault charge.
State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (citing G alaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971)).
Soots's sentence for attempted third-degree sexual assault does not stand alone. Soots was also sentenced for violation of a condition of release. The pertinent question that the court must address is whether, under the totality of the circumstances, the composite term imposed for all the charges is excessive.
See Waters, 483 P.2d at 201-02; Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988).
Judge Finn's comments at sentencing reflected an intent to impose a composite term to serve for both of Soots's convictions. From our review of the sentencing record, we are not able to conclude that the 16-month composite term imposed by Judge Finn for both crimes is clearly mistaken. Accordingly, we affirm Soots's sentence.
See McClain, 519 P.2d at 813-14.
Conclusion
Soots's sentence is AFFIRMED.