Opinion
Court of Appeals No. A-11645 No. 6220
07-29-2015
RYAN W. WEST, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Grace Lee, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. James Scott, Assistant District Attorney, 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. 1JU-11-1085 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Louis J. Menendez, Judge. Appearances: Grace Lee, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. James Scott, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Ryan W. West pleaded guilty pursuant to a plea agreement to criminally negligent homicide for a motor vehicle accident that resulted in the death of his passenger. Under the plea agreement, West's sentence for this case was left to the discretion of the superior court. At sentencing, the superior court rejected West's proposed statutory mitigator of "least serious" and imposed 9 years with 3 years suspended (6 years to serve). The court also imposed 3 years to serve on an earlier case, as required by the plea agreement. West's composite sentence was therefore 12 years with 3 years suspended (9 years to serve).
On appeal, West challenges this sentence as excessive and also argues that the court erred in rejecting his proposed "least serious" mitigating factor. West separately challenges a probation condition requiring him to submit to mental health counseling "at the direction of his probation officer."
For the reasons explained here, we conclude that West's sentence is not clearly mistaken and the superior court did not err in rejecting West's proposed mitigating factor. However, we agree with West that the challenged probation condition is improper and is not supported by the record.
Facts and proceedings
On June 6, 2011, after drinking at a barbecue, Ryan West lost control of his vehicle while driving eighty miles an hour through a curve that was posted with a speed limit of forty miles an hour. West's friend, who was a passenger in the car, was killed in the roll-over accident. A blood test at the hospital after the accident showed that West had a blood alcohol level of .071 percent.
At the time of the accident, West was on probation for a 2009 felony conviction for which he had received a suspended imposition of sentence. Under the terms of his probation, West was prohibited from consuming alcohol and was limited in when he could drive.
At grand jury, West testified that his friend who died was the driver of the car. The grand jury rejected this testimony and indicted West for second-degree murder.
West subsequently entered a plea agreement with the State in which he agreed to plead guilty to criminally negligent homicide. As part of this plea agreement, West also agreed that his suspended imposition of sentence in the 2009 case would be revoked and he would serve 3 years on that case.
As a second felony offender, West faced a presumptive range of 4 to 7 years and a maximum sentence of 10 years for the criminally negligent homicide charge. West agreed to admit the statutory aggravating factor that he was on probation in another felony case at the time of the offense but sentencing was otherwise left to the discretion of the superior court.
AS 12.55.125(d).
AS 12.55.155(c)(20).
At the sentencing hearing, Superior Court Judge Louis J. Menendez rejected West's proposed mitigating factor that his conduct was among the "least serious" conduct constituting the charged offense and found that West's offense was actually among the more serious criminally negligent homicides. Specifically, Judge Menendez found that West's conduct was more akin to manslaughter or second-degree murder than criminally negligent homicide. The judge also found that West had a lengthy history of driving violations and that this was not the first time he had caused serious injury with his vehicle. The judge noted that, in his 2009 felony case, West dragged a woman behind his vehicle, causing what the court found to be "horrific injuries."
The woman's injuries resulted in about $68,000 in medical bills, and the record showed that West had paid nothing toward the court-ordered restitution.
In addition, the judge found that West had not accepted responsibility for his current offense and that he had lied in his testimony before the grand jury. The judge also found that West's past efforts at rehabilitation had been "dismal," noting that West had violated his probation less than six weeks after he was sentenced in the 2009 case. West also continued to violate his probation conditions after the accident that resulted in his friend's death by drinking alcohol, consuming drugs, failing to stay at his approved residence, and failing to report to the probation office. The judge concluded that, while "there is always a chance at rehabilitation," it was "not high on the priority list" in West's case.
The judge found that West needed to be isolated to protect the public, because when he got behind the wheel of a car "the lights all go off and [he doesn't] care what happens." The judge therefore concluded that a lengthy sentence was necessary to deter West from further criminal conduct and to deter others from similar crimes. The judge sentenced West to 9 years with 3 years suspended (6 years to serve) and 10 years of probation for the criminally negligent homicide. The judge also imposed the agreed-upon 3 years to serve in the earlier case for a total composite sentence of 12 years with 3 years suspended (9 years to serve).
This appeal followed.
West's sentence is not clearly mistaken
West argues that his sentence of 9 years with 3 years suspended for the criminally negligent homicide is excessive.
We review a claim of excessiveness under the "clearly mistaken" standard of review. This is a deferential standard of review grounded in two principles: first, that reasonable judges may differ regarding what constitutes an appropriate sentence for a given set of facts; and, second, that society accepts these discrepancies so long as the sentence falls within "a permissible range of reasonable sentences."
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (quoting Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997)).
Here, the sentencing judge found that West's conduct was significantly more serious than the typical criminally negligent homicide, that West's past rehabilitation attempts had been "dismal," and that his future prospects were poor. The judge also found that West's recklessness around driving posed an ongoing danger to public safety and that a lengthy sentence to isolate West was necessary.
Having independently reviewed the record in this case, we conclude that the judge's findings are supported by the record and the sentence West received is not clearly mistaken.
McClain, 519 P.2d at 813-14.
The superior court properly rejected the proposed "least serious" mitigator
West argues that the sentencing judge erred by rejecting his proposed statutory mitigating factor — that the conduct constituting his offense was "among the least serious conduct included in the definition of the offense." He also contends that the court relied on impermissible considerations in reaching this decision.
AS 12.55.155(d)(9).
When we review a sentencing court's decision to reject a statutory mitigating factor, we independently review the record to determine whether the mitigator is supported by the facts of the case.
See Michael v. State, 115 P.3d 517, 519-20 (Alaska 2005) (holding that the question of whether a mitigator is established under the facts of a particular case is an issue the appellate court decides de novo — i.e., without deference to the trial judge's ruling).
Here, the sentencing court rejected the proposed mitigator based primarily on its finding that West's conduct was sufficiently reckless to qualify for a higher degree of homicide, not on the more minor considerations that West claims. The court's finding that West's offense was more serious than the typical criminally negligent homicide is well-supported by the record. We therefore agree with the sentencing court's legal conclusion that West's offense did not qualify as "least serious."
Compare AS 11.41.130(a) ("A person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person."), with AS 11.41.110(a)(2) ("A person commits the crime of murder in the second degree if ... the person knowingly engages in conduct that results in the death of another person under circumstances manifesting an extreme indifference to the value of human life[.]"), and AS 11.41.120(a)(1) ("A person commits the crime of manslaughter if the person ... intentionally, knowingly, or recklessly causes the death of another person under circumstances not amounting to murder in the first or second degree[.]").
Why we vacate the probation condition requiring mental health counseling at the direction of the probation officer
A sentencing judge has broad authority to fashion conditions of probation, but the conditions must be "reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty."
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
One of the conditions of probation imposed in West's case, General Condition 15, requires West to "[p]articipate in a psychological/psychiatric-counseling program arranged by a probation officer and not terminate the program without permission of a probation officer."
This condition is overbroad and unsupported by the record, particularly as currently written. Under General Condition 15, it is West's probation officer, rather than a mental health clinician, who is given the authority to select an appropriate mental health program for West and to require his participation in that program. Moreover, there does not appear to be any limit on the probation officer's authority to select a particular program or mode of treatment, raising additional due process concerns given the different types of mental health treatment that could be ordered.
In addition, as West points out, there were no findings from the court regarding why this probation condition was required in his case. Although we note that the sentencing letters suggest that West may benefit from some form of counseling, particularly grief counseling, there is nothing else in the record to suggest that West has a diagnosable mental health condition or that mental health treatment as a condition of probation is warranted in this case.
See Dayton v. State, 120 P.3d 1073, 1085 (Alaska App. 2005); see also Packard v. State, 2014 WL 2526118, at *3 (Alaska App. May 21, 2014) (unpublished) (Mannheimer, J., concurring). --------
Conclusion
West's probation condition requiring him to submit to a psychological or psychiatric counseling program arranged by his probation officer is VACATED. In all other respects, West's sentence is AFFIRMED.