Opinion
Court of Appeals No. A-10529.
June 9, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-91-2598 Cr.
Kelly J. McHugh, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, and Margaret Wagner, in propria persona, Eagle River, for the Appellant. John J. Novak, Assistant Attorney General, Criminal Division Central Office, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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
Margaret Wagner appeals the sentence she received in connection with the most recent revocation of her felony probation. Wagner had 8½ years of suspended jail time remaining in her sentence, and the superior court ordered her to serve all of it. Wagner contends that her sentence is now excessive, or that her violations of probation did not warrant the superior court's decision to impose all of her remaining jail time. For the reasons explained here, we conclude that the superior court's sentencing decision is not clearly mistaken, and we therefore affirm Wagner's sentence.
In 1991, Margaret Wagner was working as a prostitute. She decided to rob one of her clients, and during the robbery she shot the man in the head and killed him.
At first, Wagner falsely accused her pimp of having committed the murder. Based on this false accusation, Wagner's pimp was indicted for murder (and was facing trial) when the authorities finally realized that Wagner was lying — that she was the one who committed the homicide, and that her pimp became involved only after the shooting, when Wagner called him to seek his help.
Wagner ultimately pleaded no contest to second-degree murder (under a felony murder theory), and she received a sentence of 30 years' imprisonment with 10 years suspended ( i.e., 20 years to serve).
AS 11.41.110(a)(3).
In 1996, based on her good conduct in prison, Wagner successfully petitioned the superior court to reduce her sentence to 30 years with 15 years suspended ( i.e., 15 years to serve).
Wagner was released from prison on concurrent probation and discretionary parole in February 2000. But her conduct on probation was not as good as her conduct in prison.
In March 2001, the State petitioned to revoke Wagner's probation, based on allegations that she changed her residence without permission, failed to keep appointments with her probation officer, gave a false name to an Anchorage police officer, and possessed marijuana in a vehicle. In November, this petition was supplemented with allegations that Wagner used cocaine, drank alcoholic beverages, and was discharged from her residential placement at a community residential center for not following the rules of the center.
In January 2002, Wagner and the State reached a negotiated settlement of the probation revocation matter: Wagner agreed to serve 18 months of her previously suspended jail time. Wagner served this term of imprisonment, and she was then released back to probation.
In late 2004, the State again petitioned the superior court to revoke Wagner's probation, this time because she absconded from the Glennwood Center in mid-October 2003 and fled Alaska. After spending one year on the run, Wagner was apprehended in Ohio by the federal Fugitive Task Force, whereupon she was extradited to Alaska.
In April 2005, Wagner and the State again reached a negotiated settlement of this new probation revocation matter: Wagner agreed to serve an additional 5 years of her previously suspended jail time. The superior court adopted the parties' agreement, and thus Wagner's sentence effectively became 30 years with 8½ years suspended.
Wagner served this term of imprisonment and left prison (on probation again) in January 2007. In late 2007, the State once again petitioned the superior court to revoke Wagner's probation. As ultimately amended in 2008, this petition alleged that Wagner refused to submit to drug testing, that she used cocaine, that she changed her residence without the permission of her probation officer, that she failed to report on a monthly basis to her probation officer, and that she was associating with a convicted felon. Wagner ultimately admitted the allegations that she had used cocaine, that she changed her residence without permission, that she failed to report to her probation officer, and that she was residing with a convicted felon.
When Wagner's probation officer filed this most recent petition to revoke Wagner's probation, she told the superior court:
This is the defendant's fourth Petition to Revoke Probation. [ Sic: Actually, it was the third petition to revoke Wagner's probation. The probation officer was apparently also including an earlier petition filed with the Parole Board to revoke Wagner's parole.] The defendant was given one last chance to show that she could make better decisions[,] and she did not hold up her end of the bargain. The defendant agreed to go to [the] Dena [A.] Coy [addiction treatment center] and complete the treatment program [there,] and she did not. The defendant was ordered to adhere to probation conditions [with] respect to regular reporting and following [the] recommended treatment programs. The defendant has demonstrated an inability to abide by these conditions. Because of this, the defendant is not amenable to supervision. Therefore this officer respectfully recommends that the defendant serve out the remaining eight and a half (8½) years of her sentence.
In June 2009, Superior Court Judge Michael L. Wolverton accepted this recommendation: he revoked Wagner's probation and imposed all 8½ years of her remaining sentence of imprisonment.
At the disposition hearing, Judge Wolverton noted that, given the nature of Wagner's offense, her amended sentence of 30 years with 15 years suspended "was lenient, to say the [least]" — a sentence that was premised in large measure on Wagner's apparent rehabilitative potential. But Judge Wolverton declared that, given Wagner's subsequent behavior on probation, he "agree[d] with the State that [Wagner has] demonstrated, overall, that [she is] not amenable to supervision." The judge noted that the probation authorities "[have] tried and tried and tried, [but] it has not worked."
Because Wagner had demonstrated that she was not amenable to supervision, Judge Wolverton concluded that Wagner's sentence now had to emphasize the sentencing goals of "community condemnation and the affirmation of societal norms . . ., as well as isolation." The judge indicated that, given Wagner's failures on supervised release, "[i]ncarceration . . . is not necessarily [simply] punishment. It may well be an appropriate vehicle towards rehabilitation[.]"
When a sentencing court adjudicates a petition to revoke probation — in particular, when the sentencing court finds that the allegations in the petition are proved, and the court must then decide whether to revoke the defendant's probation and impose some or all of the defendant's previously suspended jail time — our law requires the sentencing court to evaluate all of the circumstances of the case in light of the Chaney sentencing criteria now codified in AS 12.55.005. The relevant circumstances include the defendant's original offense, the defendant's conduct on probation, and the sentences imposed on similar defendants committing similar crimes.
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Harris v. State, 980 P.2d 482, 487 (Alaska App. 1999), citing Crouse v. State, 736 P.2d 783, 786-87 (Alaska App. 1987).
Here, Wagner's original offense was second-degree murder. The benchmark sentencing range for a first felony offender convicted of a typical second-degree murder is 20 to 30 years to serve. As Judge Wolverton remarked, given the facts of the murder in this case, and given Wagner's ensuing attempts to falsely shift the blame to someone else, Wagner's sentence of 15 years to serve (30 years with 15 years suspended) "was lenient, to say the [least]".
Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
That sentence was the result of Wagner's successful petition for sentence modification in 1996, based on her apparent progress toward rehabilitation while in prison. But in the years since Wagner obtained her initial release from prison in early 2000, she has repeatedly violated the terms of her probation.
As explained above, the superior court first revoked Wagner's probation in 2002 and ordered her to serve 18 months of her previously suspended jail time. This did not deter Wagner from further violations of probation. Instead, she absconded from Alaska in 2003 and remained a fugitive for a year, until late 2004. At that point, the superior court revoked Wagner's probation again, this time ordering her to serve an additional 5 years of her remaining sentence. But despite this substantial term of imprisonment, Wagner continued to flout the requirements of her probation.
It may be true, as Wagner asserts in her pro se brief, that there are mitigating aspects to her case: in particular, her difficult experiences as a child and as a young woman, and her post-conviction efforts at rehabilitation and job training. But this Court is not allowed to make its own evaluation of whether the facts of Wagner's case call for the imposition of her entire remaining term of imprisonment. Rather, this Court's task is to review the superior court's decision, and the question is whether that decision is "clearly mistaken". McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
As this Court noted in Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997), the "clearly mistaken" test is a deferential standard of review that "gives considerable leeway to individual sentencing judges":
The "clearly mistaken" test is founded on two concepts: first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within "a permissible range of reasonable sentences". State v. Wentz, 805 P.2d 962, 965 (Alaska 1991), quoting McClain, 519 P.2d at 813.
Ibid.
Thus, the question is whether Judge Wolverton's decision to impose the entire remaining 8½ years of Wagner's sentence falls outside the range of reasonable sentencing decisions that might be made in Wagner's case, given the specific facts of her offense, her background, and her conduct since her conviction.
Given Wagner's history of repeated violations of probation, Judge Wolverton was not clearly mistaken when he concluded that Wagner was not amenable to supervised release, and that further probation would not further the goals of sentencing.
Because of Judge Wolverton's decision to require Wagner to serve the remaining 8½ years of her sentence, Wagner's sentence for the crime of second-degree murder is now 30 years to serve. However, a sentence of 30 years to serve is still within the benchmark sentencing range for a first felony offender convicted of a typical offense within the definition of second-degree murder. Given the circumstances surrounding Wagner's original offense (including her attempt to have another person falsely prosecuted for the murder), and given Wagner's conduct during her various periods of supervised release since that time, we conclude that a sentence of 30 years to serve is not clearly mistaken.
The sentencing decision of the superior court is AFFIRMED.