DAVID v. STATE, A-8408 (Alaska App. 12-14-2005)

MANNHEIMER, Judge.

In David v. State, Alaska App. Memorandum Opinion No. 4862, 2004 WL 901900 (April 28, 2004), we upheld Michael David Jr.'s convictions for first-degree burglary, first-degree sexual assault, second-degree escape, and violation of the conditions of release. We now address the remaining portion of David's case: his sentence appeal.

Underlying facts

On the afternoon of May 27, 2001, in Bethel, Michael David Jr. walked up the front steps of M.W.'s house and entered the home uninvited. M.W. was in the kitchen, scrubbing dishes. She heard the sound of someone climbing the steps and then she saw David (a man she had never seen before) enter her home.

David asked, "Is One here?" M.W. replied, "You've got the wrong house. You'd better leave." She then moved toward the door to usher David out. David walked out to the porch, as if to leave; but as he reached the outer door, he turned back to M.W. and asked, "Can I touch you?" Before M.W. could respond, David lunged at her.

M.W. retreated into the living room and fell against the couch. David grabbed her, covered her mouth and nose with one hand, and forced a finger of his other hand into her rectum. M.W.'s two young children (ages 4 and 6) saw their mother struggling with David, and they began to cry.

M.W. fell to the floor. David, who was still on top of M.W., put his hands around M.W.'s face from behind, poking at her eyes with his fingers. M.W. reached behind her and grabbed David's sweater, which came off. David then got up, ceased his attack, and ran out through the front door.

When M.W. saw David running toward the door, she feared that he was headed to the door for the purpose of locking the door and then resuming his assault. She screamed at her children to run, and together they fled the house through the back door.

When M.W. and her children emerged from their house, M.W. asked neighbors to call the police. David was apprehended some thirty minutes later. Following his arrest, he escaped briefly from custody but was soon recaptured.

Based on this episode, David was convicted of three felonies: first-degree burglary, first-degree sexual assault, and second-degree escape. And, because David was on bail release from a charge of felony forgery at the time of these offenses, he was also convicted of violating the conditions of his release, a class A misdemeanor.

Originally, David was convicted of one other misdemeanor, fourth-degree assault, but we reversed that misdemeanor assault conviction when we issued our first decision in David's case. See David v. State, supra, slip opinion at pp. 4-6, 2004 WL 901900 at *4-6.

When David was sentenced the first time, he received a composite sentence of 31 years with 10 years suspended ( i.e., 21 years to serve). David appealed his sentence, contending that it was excessive. In our first decision in this case, we did not decide David's excessive sentence claim. Rather, we remanded David's case to the superior court for re-sentencing — both because we had reversed David's conviction for fourth-degree assault, and because we had identified certain legal errors in the superior court's sentencing analysis.

The re-sentencing proceedings

Following a renewed sentencing hearing, Superior Court Judge Dale O. Curda sentenced David to a lesser sentence: a composite term of 25 years with 7 years suspended, or 18 years to serve.

At that sentencing hearing, Judge Curda found two of the aggravating factors codified in AS 12.55.155(c): (c)(8) — that David had a history of repeated convictions for assault; and (c)(19) — that David had a juvenile delinquency adjudication for conduct (burglary) that would have been a felony if he had been an adult. (David conceded this second aggravator.)

Under AS 12.55.155(a), the presence of these aggravating factors authorized Judge Curda to exceed the applicable 8-year presumptive term — see AS 12.55.-125(i)(1)(A) — when he sentenced David for the sexual assault. The presence of these aggravators also authorized Judge Curda to exceed the Austin limit — i.e., the ceiling on time to serve codified in former AS 12.55.125(k)(2) — when he sentenced David for the burglary and the escape.

In his sentencing remarks, Judge Curda dismissed the assertion that David was a sexual predator. Instead, he found that the sexual assault in this case had been a crime of opportunity. Nevertheless, Judge Curda emphasized that David had a long history of burglaries and criminal mischiefs. The judge concluded that David had "severe issues with impulse control, aggravated by substance abuse".

Even though David was a relatively young offender (he was 25 years old at the time of the re-sentencing), Judge Curda concluded that David's prospects for rehabilitation were "guarded" because of his long pattern of criminal behavior and substance abuse.

Judge Curda concluded that the primary sentencing goal should be community condemnation. The judge found that David's sexual assault had had a severe and continuing impact on the victim. (According to the statement that the victim gave at David's re-sentencing, she was still psychologically affected by the sexual assault.) Judge Curda also found that the sexual assault was aggravated because David was a complete stranger to the victim.

Judge Curda concluded that a second major sentencing goal should be deterrence, especially given David's history of burglaries. In light of these prior burglaries, Judge Curda found that David's current burglary merited a term of imprisonment above the normal sentencing ceiling of 4 years to serve.

Because each of David's offenses involved violations of a different societal interest, Judge Curda concluded that David's sentences should be consecutive.

For the crime of first-degree sexual assault, Judge Curda added 7 years of suspended imprisonment to the applicable 8-year presumptive term; that is, the judge sentenced David to 15 years with 7 suspended.

For the crime of first-degree burglary, Judge Curda imposed a sentence of 5 years to serve (one year more than the 4-year Austin limit).

See AS 12.55.125(d)(1) (specifying a 4-year presumptive term for a second felony offender convicted of this class of offense).

For the crime of second-degree escape, Judge Curda sentenced David to the Austin limit: 4 years to serve.

See AS 11.56.310(b) (classifying second-degree escape as a class B felony) and AS 12.55.125(d)(1) (specifying a 4-year presumptive term for a second felony offender convicted of this class of offense).

Finally, with respect to the misdemeanor of violating conditions of release, Judge Curda concluded that David's conduct merited the maximum sentence, 1 year's imprisonment.

See AS 11.56.757(b)(1) (classifying this offense as a class A misdemeanor if the defendant was on felony release) and AS 12.55.135(a) (specifying a maximum sentence of 1 year's imprisonment for class A misdemeanors).

Judge Curda acknowledged that, with all of these terms of imprisonment imposed consecutively, David's composite sentence for the sexual assault, the burglary, the escape, and the violation of bail conditions was 18 years to serve (with another 7 years suspended). Judge Curda stated that he had decided to reduce David's sentence (which originally entailed 21 years to serve, with an additional 10 years suspended) for two reasons: because the judge had re-weighed the aggravating factors, and also because David's fourth-degree assault conviction had been overturned on appeal.

Our analysis of David's sentence

David now renews his sentence appeal. He contends that even his reduced sentence of 18 years to serve is excessive.

When we review a composite sentence imposed for two or more criminal convictions, we assess whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history. Here, David broke into a woman's home and sexually assaulted her in front of her young children. He had a long history of burglaries, thefts, criminal mischiefs, and assaults — a history that started when he was thirteen years old. David was on bail release from another felony charge when he committed his current crimes. Moreover, following his arrest, David escaped from custody (although he was apprehended a short time later).

Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).

It is true, as David points out in his brief, that he had never served a substantial term of imprisonment for his earlier crimes. (Apparently, his longest prior term of imprisonment was 90 days.) But David's present crimes are considerably more serious than his prior offenses — and Judge Curda could reasonably conclude that David's present crimes put those prior offenses in a new light.

David also argues that, even if a lengthy sentence is called for, a sentence of 12 years to serve (rather than 18 years to serve) would have been sufficient to guarantee David's rehabilitation. David asserts that 12 years in prison would allow him more than enough time to participate in all of the pertinent educational and rehabilitative programs offered by the Department of Corrections.

Judge Curda's sentencing remarks demonstrate that he did consider the sentencing goal of rehabilitation. But under AS 12.55.005, David's rehabilitation was not the only sentencing goal that Judge Curda was obliged to consider. In particular, Judge Curda was obliged to consider the level of community condemnation of David's conduct, as well as the role of imprisonment in deterring David from future criminal acts. As we have explained, Judge Curda concluded that these sentencing goals called for David to receive enhanced sentences, especially for the sexual assault and the burglary.

The question in a sentence appeal is whether the judge's sentencing decision is clearly mistaken, given the facts of the case, and assessing those facts in light of the sentencing goals codified in AS 12.55.005. Here, David had been in trouble with the law, first as a juvenile and then as an adult, for a decade before he committed the offenses in this case. Despite rehabilitative efforts within the juvenile system, David continued committing crimes as an adult, and he has now become a serious adult offender. Moreover, David committed his present crimes while he was on bail release from another felony charge. These facts support Judge Curda's conclusion that David's prospects for rehabilitation were "guarded".

See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that a sentencing judge's decision is to be upheld on appeal unless it is clearly mistaken).

Conclusion

Given David's lengthy history within the justice system, and given the totality of David's conduct in this case, we can not say that David's composite sentence of 18 years to serve is clearly mistaken. Accordingly, the superior court's sentencing decision is AFFIRMED.