MANNHEIMER, Judge.
Terry D. Yacovelli appeals the sentence that was imposed on him when the superior court revoked his probation from two felony convictions that he received in 2002. The petition to revoke Yacovelli's probation was based on two instances in which Yacovelli failed to report to his probation officer, plus another instance in which Yacovelli refused to submit to urinalysis and admitted that he had recently smoked marijuana. Based on these violations of probation, Superior Court Judge Beverly W. Cutler imposed all of Yacovelli's remaining jail time — a total of almost 37 months.
In this appeal, Yacovelli argues that his violations of probation were not so serious as to justify the imposition of his remaining 3 years of jail time. As we explain here, Judge Cutler was not obliged to view Yacovelli's violations of probation in isolation; rather, she could assess these violations in light of Yacovelli's long history of criminal behavior and his previous failures on probation. When Yacovelli's violations of probation are viewed in this light, we conclude that Judge Cutler's sentencing decision was not clearly mistaken.
Underlying facts
On October 21, 2002, Yacovelli was sentenced for two felonies: second-degree theft (shoplifting of merchandise worth $500 or more) and fourth-degree controlled substance misconduct (possession of cocaine). Under the terms of his plea agreement with the State, Yacovelli was to receive only 6 months to serve — a composite term of 4 years (48 months) with 42 months suspended.
AS 11.46.130(a)(1) and AS 11.71.040(a)(3)(A), respectively.
During his allocution at the sentencing hearing, Yacovelli declared that these crimes were "the worst [mistake he] ever made in [his] life". Yacovelli told the court that, because of his time in jail awaiting trial, "[he] lost everything" and his family was forced to live in a shelter. Yacovelli assured Judge Cutler that he now had a new job, and that "[he wouldn't] do anything to jeopardize that".
After hearing Yacovelli's allocution, Judge Cutler accepted the plea agreement and sentenced Yacovelli to 48 months with 42 months suspended.
But within four days of Yacovelli's sentencing, the Department of Corrections filed a petition to revoke his probation. In its final amended form (as of November 19, 2002), this petition alleged that Yacovelli had stolen a van belonging to Valley Hospital in Palmer; that Yacovelli had driven this van even though his driver's license was suspended; that Yacovelli had submitted a urine sample that tested positive for three controlled substances (cocaine, benzodiazepam, and marijuana); and that Yacovelli was found in possession of four tablets of Xanax (a trade name for alprazolam), ten tablets of methadone, a solution of lidocaine hydrochloride, and a solution of cocaine (without a prescription for any of these controlled substances).
Ultimately, under the terms of a plea agreement with the State, Yacovelli admitted some of these allegations (driving with a suspended license, submitting a urine sample that tested positive for cocaine, and possessing a solution of cocaine). The plea agreement called for the superior court to impose 160 days of Yacovelli's previously suspended jail time. On June 10, 2003, Judge Cutler accepted the plea agreement and revoked 5 months and 10 days of Yacovelli's previously suspended jail time.
Six months later, in January 2004, the Department once again petitioned the superior court to revoke Yacovelli's probation. This time, the Department alleged that Yacovelli had consumed alcohol (something forbidden by his conditions of probation), that he had changed his address without notifying his probation officer, that he had twice failed to report, and that he had refused to submit to urinalysis (later admitting that he had been smoking marijuana).
In April 2004, the State dropped the first two allegations (consumption of alcohol, and change of residence without notifying the probation officer), and Yacovelli admitted the remaining allegations (the failures to report, and the refusal to submit to urinalysis).
This time, the State asked Judge Cutler to impose all of Yacovelli's remaining jail time. The prosecutor relied on Yacovelli's repeated failures on probation in the present cases, as well as Yacovelli's long prior history of drug crimes, theft crimes, and probation violations.
The prosecutor's recommendation was supported by Yacovelli's probation officer, who reported that Yacovelli (while in prison) had participated in an assault on another inmate — an assault that inflicted injuries requiring $5000 of medical care. The probation officer also pointed out that Yacovelli had repeatedly violated the conditions of his probation, sometimes within weeks or even days after his last court appearance or his last reprimand from the Department of Corrections.
Yacovelli's attorney responded that Yacovelli had merely "got[ten] off on the wrong foot with this probation officer". The defense attorney also asserted that Yacovelli had only witnessed the prison assault, and had not participated in it. The attorney asked Judge Cutler to revoke 3 to 6 months of Yacovelli's suspended jail time.
During his allocution, Yacovelli repeatedly assured Judge Cutler that he "under[stood] the gravity of [his] situation this time", and that he was "not going to . . . screw up again".
In her sentencing remarks, Judge Cutler discounted Yacovelli's promises of future good behavior. She pointed to his lengthy criminal record, and to the fact that he had received "chance after chance". Judge Cutler pointed out that Yacovelli was middle-aged — not a young man whose adult personality was still forming and who might receive the benefit of the doubt concerning past mistakes. Judge Cutler also noted that Yacovelli had bargained for, and had agreed to, the lengthy suspended sentence "because [he was] going to do such a good job on probation".
Declaring that the time had come for Yacovelli "to live with the consequences of [his] decisions", Judge Cutler followed the prosecutor's recommendation and imposed all of Yacovelli's remaining suspended jail time (a total of slightly less than 37 months).
Yacovelli's criminal history preceding this case
Yacovelli was forty-one years old when Judge Cutler sentenced him this last time. He had been in trouble with the law since he was fifteen, beginning with a history of juvenile delinquency. In 1980, when he was eighteen, Yacovelli was convicted of his first adult offense, criminal mischief, for breaking ninety-eight panes of glass at a school. For this offense, Yacovelli was placed on probation for two years.
According to the pre-sentence report, Yacovelli "failed miserably" at this probation. He failed to report to his probation officer, he failed to pay restitution, and he failed to perform court-ordered community service. Finally, his probation was revoked, and he was ordered to serve 364 days in jail.
This 364-day sentence was apparently imposed concurrently with another 364-day sentence that Yacovelli received in January 1985 for two counts of burglary. After serving this sentence, Yacovelli moved to Alaska, where he received all of his remaining criminal convictions.
In October 1986, Yacovelli was convicted of driving while intoxicated and failing to appear. In 1988, he was convicted of driving while his license was suspended. In 1992, Yacovelli was convicted of a second DWI, plus misdemeanor leaving the scene of an accident. In 1993, he was convicted (based on separate incidents) of driving with a suspended license and fourth-degree theft (shoplifting food from a grocery). In 1994, he was convicted of third-degree theft (shoplifting approximately $150 worth of merchandise from a store). In 1995, he was convicted of negligent driving. Also in 1995, he was convicted of fourth-degree controlled substance misconduct after he was found with 23 marijuana plants having a dry weight of 3.87 pounds. In 1999, Yacovelli was convicted of a third DWI, plus attempted first-degree vehicle theft. In 2001, he was convicted (based on separate incidents) of third-degree theft (shoplifting approximately $300 worth of merchandise from a store) and driving with a suspended license.
Yacovelli was sentenced for these last two crimes on August 31, 2001. Two months later, he committed the two felonies in the present case: second-degree theft (shoplifting merchandise worth $500 or more) and fourth-degree controlled substance misconduct (possession of cocaine).
Why we conclude that Yacovelli's sentence is not clearly mistaken
In his brief to this Court, Yacovelli contends that his current probation violations are relatively minor. He also points out that, under Alaska law, a sentencing judge should not revoke a defendant's suspended jail time merely because the defendant has violated the conditions of probation in some fashion. We agree with both of these propositions. However, Yacovelli's violations of probation must be placed in context.
Yacovelli has been in repeated trouble with the law for a quarter of a century, ever since he was a teenager. Time and again, after being convicted and sentenced for various crimes, Yacovelli has violated or ignored the conditions of his probation, and he has gone on to commit new crimes (sometimes within days or weeks of his prior offenses). Given Yacovelli's prior history of drug and alcohol crimes, theft crimes, and violations of probation, and given his repeated failures on probation in the present case, Judge Cutler could justifiably conclude that Yacovelli was not an acceptable risk as a probationer — that he would continue to violate probation and to pose a threat to the public unless he was incarcerated.
With the imposition of his suspended jail time, Yacovelli has now received a total of 4 years' imprisonment for his two current felonies. Based on our independent review of the record, we conclude that this sentence is not clearly mistaken. Accordingly, we AFFIRM the sentencing decision of the superior court.
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).