Jelks v. State

MANNHEIMER

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.

Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge.

Appearances: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MANNHEIMER, Judge.

In August 2007, seventeen-year-old Deshalon Jelks approached John Kaucher as he was walking home from work. Jelks told Kaucher to empty his pockets, but Kaucher refused. Jelks then pulled out a gun. Even in the face of this weapon, Kaucher told Jelks that he was not going to empty his pockets, and he turned to walk away. In response, Jelks shot Kaucher in the stomach and left him to die on the street.

Kaucher managed to use his mobile phone to call 911, and he was taken to the hospital, where emergency surgery saved his life. However, as a result of this disabling wound, Kaucher lost his job, and then his apartment. He became homeless, and he was still living in a shelter over two years after the assault.

Jelks was indicted for first-degree robbery and first-degree assault. When a minor is charged with these offenses, the juvenile delinquency laws do not apply, and the proceedings against the minor take place under the adult criminal system. See AS 47.12.030(a)(1).

The charges against Jelks were ultimately resolved with a plea bargain. Under the terms of this agreement, Jelks was allowed to plead guilty to the lesser offenses of second-degree robbery and second-degree assault. However, Jelks stipulated that his conduct was among the most serious within the definition of these offenses (aggravating factor AS 12.55.155(c)(10)), and he also agreed not to seek to have his case returned to the juvenile justice system under the provisions of AS 47.12.030(a).

Both second-degree robbery and second-degree assault are class B felonies. Because Jelks was a first felony offender, and because he stipulated to aggravating factor (c)(10), Jelks faced a sentencing range of 1 to 10 years for each of these offenses.

During the sentencing proceedings in January 2010, Jelks asked the superior court to grant him a suspended imposition of sentence under AS 12.55.085. Jelks acknowledged that, under the provisions of AS 12.55.085(f), a sentencing court is expressly barred from granting a suspended imposition of sentence to a defendant who is being sentenced for an assaultive felony — in particular, either second-degree robbery or second-degree assault. However, Jelks argued that this limitation on suspended impositions of sentence should be deemed unconstitutional in cases where the defendant is a minor, because minors' brains are not fully developed and minors lack a mature capacity for judgement and impulse control.

(See our discussion of this issue in Smith v. State, 258 P.3d 913, 919-23 (Alaska App. 2011), where we rejected the contention that developmental immaturity should be recognized as a non-statutory mitigating factor in presumptive sentencing cases.)

Superior Court Judge Jack W. Smith concluded that the statutory limitation on suspended impositions of sentence was constitutional, even when applied to minors. However, Judge Smith ruled in the alternative that even if the statutory limitation was unconstitutional (so that he had the authority to grant Jelks a suspended imposition of sentence), he nevertheless would not suspend the imposition of Jelks's sentence, given the facts of the case and Jelks's prior history. Judge Smith then sentenced Jelks to a composite term of imprisonment of 8 years and 1 day, with 5 years suspended.

In this appeal, Jelks renews his argument that the statutory limitation on suspended impositions of sentence — AS 12.55.085(f) — is unconstitutional when applied to minors. We need not resolve that issue. Judge Smith declared that he would not grant Jelks a suspended imposition of sentence even if he had the authority to do so — and, as we are about to explain, the facts of Jelks's case support Judge Smith's decision.

Although Jelks was a first felony offender in this case, his current two offenses were not his only encounters with the justice system. In September 2007, Jelks took another student's purse, and then fought with a school officer. He was charged with disorderly conduct. The following month, Jelks drank alcoholic beverages and became intoxicated; he screamed profanities, fought with the police, and refused to identify himself. For this conduct, Jelks was charged with minor consuming, disorderly conduct, and resisting arrest. When the police arrested Jelks, they found a marijuana pipe in his possession, as well as a jacket that still had the price tag affixed to it. And in December 2007, Jelks — who had no driver's license — operated a motor vehicle while under the influence of marijuana. His offenses were discovered after he fell asleep in the drive-through lane of a restaurant.

In the present case, even though Jelks pleaded guilty to second-degree robbery, he was factually guilty of first-degree robbery (i.e., armed robbery). Moreover, during the course of this robbery, Jelks shot his victim in the stomach, inflicting a serious wound that could have been fatal.

In his sentencing remarks, Judge Smith acknowledged that Jelks was a youthful offender. The judge also noted that Jelks had expressed remorse for his actions and that, during his time in jail, Jelks was apparently "taking positive steps to turn his life around". Based on these circumstances, Judge Smith concluded that rehabilitation should be a primary factor in his sentencing decision.

At the same time, however, Judge Smith noted that Jelks had committed serious offenses — robbing a stranger, shooting him without provocation, and running away. The judge also noted that these offenses had had a serious impact on the victim. For this reason, Judge Smith concluded that isolation, deterrence, and community condemnation were important sentencing factors as well.

Judge Smith noted that, because of the stipulated aggravating factor (conduct among the most serious within the definition of the offense), he was authorized to impose any sentence up to the 10-year maximum for class B felonies, but he declared that the facts of Jelks's case did not justify a maximum sentence. On the other hand, Judge Smith declared that "even if an SIS were possible in this case, given the nature of the facts in this case, the Court would not find it appropriate."

Instead, Judge Smith gave Jelks 3 years (plus one day) to serve — which, at that point, essentially equaled the time that Jelks had already spent in jail. Judge Smith suspended another 5 years' imprisonment, so that Jelks would be motivated to successfully complete his probation.

On appeal, Jelks argues that if his constitutional challenge to AS 12.55.085(f) were meritorious, and if Judge Smith had had the authority to grant Jelks a suspended imposition of sentence, then Judge Smith was clearly mistaken not to have done so. We disagree. The record in this case clearly supports Judge Smith's decision to enter a normal conviction against Jelks, and to impose a sentence of imprisonment.

Because Judge Smith declared that he would not have suspended the imposition of Jelks's sentence even if he had had the authority to do so, and because the record supports Judge Smith's decision, this moots Jelks's contention that the statutory limitation on suspended impositions of sentence is unconstitutional when applied to minors.

The judgement of the superior court is AFFIRMED.