Opinion
A-13587
10-26-2022
LENA JEAN DAIGLE, Appellant, v. STATE OF ALASKA, Appellee.
Amanda Harber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Heather Stenson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-18-00355 CR
Appearances:
Amanda Harber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Heather Stenson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD., Judge.
Lena Jean Daigle was convicted, following a jury trial, of three counts of second-degree theft, based on a sequence of events in which Daigle stole a cargo trailer and sold it to two different men. Daigle was also convicted of felony unlawful possession and criminal trespass in the first degree. On appeal, Daigle argues there was insufficient evidence presented at trial to support each of these convictions. We have reviewed the record, and we conclude that the evidence was sufficient to support all of Daigle's convictions.
Former AS 11.46.130(a)(1) (2017 and 2018).
Former AS 11.46.270(b)(1)(2018) and AS 11.46.320(a)(1),respectively. Daigle was found not guilty of felony removal of identification marks. Former AS 11.46.260(b)(1) (2017).
Daigle also challenges two of her probation conditions and her sentence. For the reasons explained in this memorandum opinion, we reject Daigle's claims and affirm the judgment of the superior court.
Background facts
Because Daigle challenges the sufficiency of the evidence to support her convictions, we present the facts in the light most favorable to the jury's verdict.
See Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Jerry Kruger owned a property on Duncan Road in North Pole where he stored various items, including an Airstream trailer, flatbed trailers, and two cargo trailers. The cargo trailers consisted of a red, ten-foot Haulmark trailer and a white, twenty-four-foot Featherlite trailer. They were both registered to Kruger and his wife. Kruger lived out of state and had not been on the property for two years before the events relevant to this case.
In July 2017, Kruger received a phone call from his friend, John Tobin. Tobin told Kruger that items were missing from the property, including the two cargo trailers. Kruger filed a report with the Alaska State Troopers and provided the Vehicle Identification Numbers (VIN) for all the trailers except the red Haulmark, which he did not have. The troopers investigated the missing property but closed their report because they did not have any leads.
In January 2018, North Pole resident Scott Lanis saw a white, twenty-four-foot trailer posted for sale on Facebook Marketplace. He reached out to the person who posted the ad, Bill Cotton. Cotton asked for Lanis's phone number, and said he would pass it along to the owner of the trailer.
Shortly thereafter, Lanis received a text message from Lena Daigle, and they exchanged contact information. Lanis and Daigle spoke on the phone, at which time Lanis decided to purchase the trailer for $5,500. Lanis was outside Alaska on vacation, so he sent Daigle a $500 deposit via Western Union to hold the trailer. Daigle picked up the deposit on January 23, 2018.
Around the same time, another North Pole resident, Arlan Haman, also saw the Facebook ad for the twenty-four-foot trailer. He also reached out to the person who posted the ad, Bill Cotton. Cotton asked for Haman's phone number, and said he would share it with the owner. Haman was then contacted by Daigle.
On January 23, Daigle took Haman to see the twenty-four-foot trailer where it was parked at 12 Mile Village. Haman agreed to purchase the trailer, and offered Daigle $4,500. Daigle responded that she had a higher offer, but she would let him know by the evening if the other offer was confirmed. A few hours later, Daigle called Haman and said the other offer had backed out, so she offered Haman the trailer for $4,500. Haman accepted.
Daigle and Haman met to exchange the money. Daigle only produced a bill of sale, and not the title for the trailer, so Haman paid her $2,000 and reserved the remainder of the purchase price until she produced the title, which she said she thought might be in a safe in the trailer. Daigle wrote her full name and address on the bill of sale, and signed it. Haman and Daigle agreed that Haman would receive possession of the trailer once Daigle removed the items being stored inside.
A day or two later, Haman received a phone call from Daigle. Daigle stated that her mother was ill and had to be medevaced to Anchorage for medical treatment. Daigle asked Haman to pay an additional $1,500 towards the trailer, so that she could pay for the emergency. Haman agreed, and received a receipt from Daigle for the additional payment. When Daigle met Haman to exchange the second payment, she provided a VIN and model number for the trailer. Haman wrote the VIN and model number on the original bill of sale.
The next day, Haman heard from Daigle again. Daigle stated that her mother had died, so she needed additional money for funeral expenses. Haman paid an additional $500 to Daigle.
Soon after, Daigle asked for money to help pay for her mother's coffin. Haman gave her $ 100, but reserved the final $400 since Daigle had still not produced the title for the trailer. Shortly after, Daigle told Haman that she would have the trailer clean within the next two days for him to pick up.
Meanwhile, on February 3, Daigle reached out to Scott Lanis (the buyer who had sent the $500 deposit via Western Union). Daigle said she had run out of heating oil and asked for another payment towards the trailer. Lanis had just returned to North Pole from his vacation, so the two agreed to meet for Lanis to see the trailer. Lanis inspected the trailer and gave Daigle an additional $500. Daigle told Lanis that her "boyfriend Dan" had the key for the trailer's hitch lock with him on the North Slope, but would send it down on the next plane.
Over the next few days, Daigle cleared the trailer out. On February 6, Daigle told Lanis she was finished removing the items and asked him to meet her at the trailer. The two met at the trailer, and Daigle gave Lanis a bill of sale for $5,500 with a VIN written on it. Lanis paid Daigle $4,000, bringing his total payment to $5,000. Because Daigle did not produce the title, Lanis reserved $500 of the purchase price. Lanis towed the trailer to his residence.
The next day, Lanis went to White Spruce Trailers to register the trailer in his name. However, because Lanis did not have the title, he was unable to register it. When the business ran the VIN written by Daigle on the bill of sale, it returned a result for a red, shorter Haulmark trailer, which did not match the white, twenty-four-foot Featherlite trailer that Lanis had purchased.
Lanis then inspected the trailer for the correct VIN, but could not locate it. Lanis became suspicious and called the Alaska State Troopers. Trooper Lucas Altepeter asked Lanis to bring the trailer in for inspection.
Prior to inspecting the trailer, Trooper Altepeter went to interview Daigle, whose name and contact information he had received from Lanis. Trooper Altepeter intended to recover the title for the trailer from Daigle. This interview was played for the jury.
Daigle told the trooper that the trailer was registered in her name, and she planned to get another title the following day. When asked about the VIN, Daigle stated she could not find it on the trailer. Daigle said she bought the trailer with her boyfriend, Dan Bottomly, from a "mutual friend of Sam." She explained that "Sam" was the landlord where she and Bottomly used to live on Duncan Road. (The property where they lived was adjacent to the property owned by Jerry Kruger, where the trailers went missing.) The recording of the interview cut off after four-and-a-half minutes because of an issue with the recording device. Trooper Altepeter testified that nothing substantive was discussed in the interview after the recording ended. The trooper also testified that there was an older woman present during the interview, who Daigle referred to as "mom," seeming to indicate that her mother had not passed away.
Trooper Altepeter searched Daigle's name and did not find any trailers registered to her. He then went to inspect the trailer. Trooper Altepeter searched the trailer for a VIN but could not find one. He did see that the tongue of the trailer, where the VIN is normally located, had two holes. Trooper Altepeter believed the holes indicated the original VIN tag had been removed.
Trooper Altepeter then reviewed the bill of sale that Lanis received from Daigle. He ran the VIN written by Daigle through a police database, and it returned a result for the red Haulmark trailer that had been stolen from Kruger's property. Trooper Altepeter found that a white, twenty-four-foot Featherlite trailer was also registered to Kruger, which matched the trailer that Lanis had purchased from Daigle. The trooper inspected the trailer and confirmed that it had damage to the tongue and an interior oil stain, which Kruger had reported could be found on his trailer.
Trooper Altepeter interviewed Daigle a second time. This interview was also played for the jury. Trooper Altepeter asked Daigle why she had lied that the trailer had been registered to her for three years. Daigle said it was a "stupid, dumb lie." Daigle said that she and Bottomly bought the trailer from Jeffrey Van Eyck and Chris Gillespie, but that she had "red flags" go up when she saw Van Eyck's and Gillespie's names in the newspaper for committing various crimes, including property crimes and kidnapping. But Daigle said she ultimately "just didn't think about it" and decided to sell the trailer because she and Bottomly needed the money.
Daigle then went on to describe another version of how she acquired the trailer. She said that, during the winter, Van Eyck "pulled it out from the side of the shop in North Pole" for her and Bottomly. Daigle said the "shop" was located at 3430 Duncan Road (the same address as Kruger's property). Daigle said that she and Bottomly had Van Eyck pull the trailer out so they could use it to move their things into storage, but they planned to put it back. Daigle said the trailer was full with "somebody else's stuff." Daigle admitted the trailer did not belong to them when they pulled it out.
Daigle said she told Bottomry it was "not a good idea" to pull the trailer out because it did not belong to them. Daigle said she was under the impression they were going to put the trailer back, but then Bottomry told her to sell the trailer and that "he would get it taken care of." Daigle told Trooper Altepeter that she "stupidly believed him." She said that Bottomly did all the "transactions" like having Van Eyck pull out the trailer, and that she was "the fucking dumbass that stupidly sold it." Daigle later said again, "[T]he only thing that I frigging did was sell the trailer because I stupidly believed that nothing was going to happen."
Daigle also explained that, when Van Eyck pulled the trailer out, "he literally went back there and robbed it blind. ... [T]here was a fucking Airstream back there that they took. And I mean when I say they robbed everything, like, after the trailer was moved off of that property, we went back a couple times and checked, and everything was gone."
During the interview, Daigle did not tell the trooper that she had also sold the trailer to another buyer, Haman. The troopers found out about the other sale when Haman reported it two days after Daigle's second interview.
Haman had been waiting for Daigle to find the title and finish clearing out the trailer, when he told a neighbor about the trailer he had recently bought. The neighbor told him that the authorities had recently confiscated a trailer with the same description. Alarmed, Haman went back to the location where Daigle had originally shown him the trailer. The trailer was gone. Haman texted Daigle asking where the trailer was, and she did not respond. Haman reported the trailer as stolen.
Shortly after this report, the troopers showed Haman a photographic lineup. Haman was not able to identify anyone in the line-up, even though Daigle's driver's license photo was one of the photographs included. The same day the line-up was administered, another trooper went to interview Daigle about Haman's report. The trooper thought Daigle looked "significantly different" than her driver's license photo, so he took a photograph of her with his camera. (The trooper testified at trial that Daigle looked "thinner" in the photograph taken with his camera.) The trooper showed this photograph to Haman, who was able to identify Daigle as the person who sold him the trailer.
Daigle was indicted on three counts of second-degree theft for taking (1) the trailer from Jerry Kruger's property, (2) $5,000 from Scott Lanis, and (3) $4,100 from Arlan Haman. Daigle was also indicted for felony unlawful possession of property valued over $750 (for possessing the trailer with the VTN removed) and felony removal of identification marks, and was charged with criminal trespass in the first degree (for entering Kruger's property). The jury found Daigle guilty of all charges except felony removal of identification marks.
Daigle was also indicted for providing false information and forgery, but the State dismissed these charges.
This appeal followed.
Daigle's insufficiency arguments on appeal
On appeal, Daigle argues that there was insufficient evidence presented at trial to support her convictions. When we evaluate the sufficiency of the evidence, we are required to view the evidence - and all reasonable inferences arising from that evidence-in the light most favorable to the jury's verdict and ask whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt. We do not evaluate the weight of the evidence or witness credibility, as those are questions for the fact finder.
fyapana, 284 P.3d at 848-49 (citing Morrell v. State, 216 P.3d 574,576 (Alaska App. 2009)).
Morrell, 216 P.3d at 576.
We address Daigle's arguments in the order in which she raises them in her brief.
1. The second-degree theft from Kruger
Daigle argues first that there was insufficient evidence to support her conviction of theft for taking Kruger's white trailer.
At trial, the State argued alternate theories that Daigle was guilty of either second-degree theft by taking or theft by receiving with regards to Kruger's trailer. For either theory, the State had to prove beyond a reasonable doubt that the value of the trailer was "$1000 or more but less than $25,000." To establish that Daigle was guilty of second-degree theft by taking, the State was required to prove beyond a reasonable doubt that Daigle "obtain[ed]" Kruger's trailer "with intent to deprive" Kruger of the trailer.
Former AS 11.46.130(a)(1) (2017).
AS 11.46.100(1).
On appeal, Daigle argues that there was no evidence presented at trial that she intended to deprive Kruger of his property or that she knew the trailer was stolen.
But the record indicates otherwise. At trial, the jury heard a recording of Daigle's statement to Trooper Altepeter that she and Bottomry had Van Eyck "pull [the trailer] out from" Kruger's property so they could use it to move their items into storage. Daigle told the trooper that she told Bottomry at the time that it was "not a good idea... [b]ecause [the trailer] wasn't [theirs]." Daigle then went on to sell the trailer to both Lanis and Haman, preventing Kruger from recovering it. A reasonable juror could find that Daigle intended to deprive Kruger of his property and knew that the trailer was stolen.
There was also clearly sufficient evidence to support the alternate theory that she committed theft by receiving with regards to Kruger's trailer. To establish that Daigle was guilty of second-degree theft by receiving, the State was required to prove beyond a reasonable doubt that Daigle "[bought], receive[d], retain[ed], conceal[ed], or dispose[d]" of Kruger's trailer with "reckless disregard that the property was stolen."
AS 11.46.190(a).
The jury heard Daigle's statement to the trooper that, when Van Eyck pulled Kruger's trailer out, he also "literally went back there and robbed it blind. . . . [T]here was a rucking Airstream back there that they took. And I mean when I say they robbed everything, like, after the trailer was moved off of that property, we went back a couple times and checked, and everything was gone." The jury also heard Daigle's recorded statement that Bottomry later told her to sell the trailer and that she "stupidly believed him" when he said "he would get it taken care of." The jury heard Daigle tell the trooper that Bottomly "pretty much did everything" and "the only thing that [she] frigging did was sell the trailer because [she] stupidly believed that nothing was going to happen." Given this record, a reasonable juror could conclude that Daigle acted with reckless disregard that the trailer was stolen when she sold it to Lanis and Haman.
We accordingly reject this claim of error and affirm Daigle's conviction of second-degree theft with regards to Kruger's trailer.
2. The second-degree theft from Lanis
Daigle argues next that there was insufficient evidence to support her conviction for theft for stealing $5,000 from Lanis.
Daigle misstates that the theft conviction was for $5,500, but this is not central to her argument nor to this Court's analysis.
At trial, the State's theory was that Daigle acquired the money from Lanis by committing second-degree theft by deception. To establish its case, the State had to prove beyond a reasonable doubt that Daigle, acting "with intent to deprive another of property or to appropriate property of another to oneself or a third person," obtained the property of another by "deception." "Deception" has several potential meanings.Most appropriately, the State could show that Daigle used "deception" if it proved beyond a reasonable doubt that she knowingly "create[d] or confirm[ed] another's false impression that [she did] not believe to be true."
AS 11.46.180.
AS 11.81.900(b)(18) ('"[D]eception' means to knowingly (A) create or confirm another's false impression that the defendant does not believe to be true, including false impressions as to law or value and false impressions as to intention or other state of mind; (B) fail to correct another's false impression that the defendant previously has created or confirmed; (C) prevent another from acquiring information pertinent to the disposition of the property or service involved; (D) sell or otherwise transfer or encumber property and fail to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether or not that impediment is a matter of official record; or (E) promise performance that the defendant does not intend to perform or knows will not be performed[.]").
AS 11.81.900(b)(18)(A).
Daigle argues on appeal that without the testimony of Bill Cotton, the person that posted the trailer on Facebook Marketplace and connected the buyers with Daigle, the State did not provide sufficient evidence to support the conviction for theft from Lanis.
But the State did not need to provide Cotton's testimony, as the other evidence presented at trial was more than sufficient to prove that Daigle committed second-degree theft by taking the payments from Lanis. At trial, Lanis testified that Daigle agreed to sell Lanis the white, twenty-four-foot trailer that had been taken from Kruger's property. Lanis sent Daigle $500 via Western Union as a deposit, which Daigle picked up on the same day that she signed and gave Haman a bill of sale for the trailer for $4,500. About two weeks later, Daigle accepted additional payments from Lanis, bringing his total payments for the trailer to $5,000. Daigle told Lanis that she would give him the title, which she did not have and could not recover because the trailer was not registered to her. Daigle also told Lanis that Bottomly had the hitch lock key with him on the North Slope, and would send it down on the next plane. In fact, Bottomly was incarcerated at the time.
Based on this record, there was sufficient evidence for the jury to conclude that Daigle knowingly created the false impression that she owned the white trailer and intended to deprive Lanis of $5,000 when she purported to sell it to him. We accordingly reject this claim of error.
3. The unlawful possession conviction
Next, Daigle argues that there was insufficient evidence to support her conviction for unlawfully possessing a trailer that she knew had its VIN removed.
To establish that Daigle was guilty of unlawful possession, the State had to prove beyond a reasonable doubt that Daigle possessed the trailer "knowing that the serial number or identification mark placed on it by the manufacturer or owner for the purpose of identification has been defaced, erased, or otherwise altered with the intent of causing interruption to the ownership of another." To raise this conviction to a felony, the State had to prove "the value of the property on which the serial number or identification mark appeared ... [was] $750 or more."
AS 11.46.270(a).
Former AS 11.46.270(b)(1) (2018).
Daigle argues on appeal that there was insufficient evidence to show she knew that the VIN number had been removed from Kruger's white trailer. Daigle argues that, because the jury acquitted her of removing the VIN number from the trailer, more was required to show that she knew the VIN was altered.
But at trial, the jury heard Daigle's recorded statementto Trooper Altepeter that she could not find the VIN on the trailer. Trooper Altepeter further testified that he could not find a VIN on the white trailer, and that it appeared to have been removed somewhat recently. The jury also heard testimony and saw evidence that Daigle provided both Lanis and Haman with the wrong VIN - the one assigned to Kruger's other missing trailer, the red Haulmark.
We conclude that, viewing this evidence in the light most favorable to the verdict, a reasonable juror could have concluded that Daigle provided the wrong VIN to the buyers as an attempt to obscure ownership because she knew the white trailer's VIN had been removed. We therefore reject Daigle's challenge to the sufficiency of the evidence to support her felony unlawful possession conviction.
4. The second-degree theft from Haman
Daigle's next argument on appeal is that there was insufficient evidence to support her conviction for theft for taking $4,100 from Haman.
Similar to the charge for second-degree theft from Lanis, the State's theory was that Daigle committed theft by deception when she took the payments from Haman. As discussed, this charge required the State to prove beyond a reasonable doubt that Daigle, acting "with intent to deprive another of property or to appropriate property of another to oneself or a third person," obtained the property of another by "deception."The State could show that Daigle used "deception" if it proved beyond a reasonable doubt that she knowingly "create[d] or confirm[ed] another's false impression that [she did] not believe to be true."
AS 11.46.180.
AS 11.81.900(b)(18)(A).
On appeal, Daigle argues that Haman's failure to identify Daigle from a six-person photographic lineup meant the State failed to provide sufficient evidence to support this conviction.
However, the jury heard testimony that Haman later identified Daigle when the troopers presented him with a more recent photograph. Haman also identified Daigle during the trial, and Haman received a bill of sale and another document from Daigle with her full name, signature, and address. The verdict establishes that the jury credited this evidence.
Further, Daigle again argues that it was relevant to the sufficiency of the evidence that Cotton, not Daigle, listed the trailer for sale online. But the evidence presented at trial was more than sufficient to prove that Daigle committed second-degree theft from Haman. Cotton's role is immaterial to whether the evidence against Daigle was sufficient.
As previously described, Daigle accepted $4,100 from Haman for the white trailer stolen from Kruger's property. She gave him a bill of sale and repeatedly said she was looking for the title. She then told Haman she needed to finish clearing items out of the trailer, and would notify him when she was finished. Before this occurred, she allowed Lanis to tow the trailer to his property.
We conclude there was sufficient evidence for a reasonable juror to find that Daigle committed second-degree theft by taking the $4,100 payment from Haman. We therefore affirm her conviction.
5. The criminal trespass conviction
Finally, Daigle argues that there was insufficient evidence presented at trial to support her conviction for criminal trespass for entering Kruger's property with the intent to commit theft.
To establish that Daigle committed criminal trespass in the first degree, the State had to prove beyond a reasonable doubt that Daigle "enter[ed] or remain[ed] unlawfully" on Kruger's "land with intent to commit a crime on the land."
AS 11.46.320(a)(1). Daigle misstates the relevant standard, asserting that the State needed to prove she committed the crime of theft at the time of the trespass, which is incorrect: only intent to commit theft was required at the time of the trespass.
On appeal, Daigle does not dispute that she entered Kruger's land. However, she maintains this act was lawful, as she believed Bottomry had purchased Kruger's trailer from a mutual friend.
But the jury heard Daigle's recorded statement to Trooper Altepeter that the trailer did not belong to her and Bottomly when they had Van Eyck pull it off Kruger's property. Daigle further stated that she told Bottomly it was "not a good idea" to take the trailer from Kruger's property because the trailer was not theirs.
We accordingly reject Daigle's final sufficiency claim and affirm her conviction for criminal trespass.
Daigle's challenge to probation conditions pertaining to substance use
Daigle also challenges two of her probation conditions on appeal. Daigle challenges Special Probation Condition No. 2, which states: "Complete a substance abuse assessment from a Department of Health and Social Services as DOC-approved provider [sic]. Screening and evaluation must be completed within 3 0 days of sentencing while incarcerated, if available, or within 30 days after custodial release, if available." Daigle also challenges Special Probation Condition No. 5, which states: "Actively participate in and successfully complete all treatment programs recommended by the evaluator, including up to 90 days of inpatient treatment."
Daigle objected to these conditions at sentencing, arguing there was no nexus between her offense and substance use. The superior court overruled this objection, stating that it did not know if Daigle had substance use issues that related to the offense, but that an evaluation could determine that. Daigle appeals this ruling, arguing again that there was no evidence before the court that she had used substances. But the record shows otherwise. The presentence report indicates that Daigle was charged in 2012 with possessing methamphetamine and oxycodone, although these charges were later dismissed. Daigle also self-reported that she had used illicit substances, including methamphetamine at the age of twenty-five and cocaine between the ages of twenty and twenty-five. Based on this record, we conclude that the superior court acted within its discretion when it required Daigle to complete a substance use evaluation, and if recommended by the evaluation, treatment.
See State v. Thomas, 133 P.3d 684,686 (Alaska App. 2005) (citing Miyasato v. State, 892 P.2d 200, 202 (Alaska App. 1995)).
Daigle 's sentencing claims
Daigle also raises three challenges to her sentence on appeal.
Daigle first argues that the trial court failed to follow the Neal-Mutschler rule. Under the Neal-Mutschler rule, before a sentencing judge imposes consecutive sentences that exceed the maximum term of imprisonment for the defendant's most serious offense, the judge must find that confinement for the composite term is necessary to protect the public or to satisfy another sentencing goal.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Neal, 628 P.2d at 21, as modified in Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010).
Daigle received a sentence of 11 years with 6 years suspended (5 years to serve). The maximum sentence for any single count was 5 years. On appeal, Daigle contends that her sentence exceeded the Neal-Mutschler ceiling, and required appropriate findings, because the total composite sentence exceeded the single count's maximum term of 5 years. The State disagrees, stating that such a finding is not necessary because the active term of imprisonment to which Daigle was sentenced did not exceed 5 years.
See AS 11.46.130(c) (designating second-degree theft as a class C felony); former AS 11.46.270(b)(1) (2018) (designating unlawful possession of property worth $750 or more as a class C felony); AS 12.55.125(e) (setting 5 years as the maximum sentence for a class C felony).
The State's understanding of the Neal-Mutschler rule is correct. The relevant term for application of the rule is the active term of imprisonment. If a sentencing court imposes consecutive sentences such that a defendant's active term of imprisonment exceeds the maximum term of imprisonment for the defendant's most serious offense, the court must find that confinement for the composite term is necessary to protect the public or to satisfy another sentencing goal.
See Davis v. State, 793 P.2d 1064, 1066 (Alaska App. 1990); Peruski v. State, 711 P.2d 573, 574 (Alaska App. 1985); see also Stone v. State, 2009 WL 795211, at *3 (Alaska App. Mar. 25, 2009) (unpublished); Burk v. State, 2004 WL 1933624, at *2 (Alaska App. Sept. 1, 2004) (unpublished).
Neal, 628 P.2d at 21, as modified in Phelps, 236 P.3d at 393.
Because Daigle's active term of imprisonment did not exceed the 5-year maximum for her most serious offense, the sentencing court was not required to make a finding under Neal-Mutschler. We accordingly reject this claim on appeal.
Daigle argues next that the trial court erred by considering Daigle's pending misdemeanor charge when fashioning the sentence.
While on electronic monitoring and awaiting sentencing, Daigle was arrested for another theft. The sentencing court noted the new charge in its sentencing remarks and also noted that the new charge would prevent Daigle from receiving credit for her time on electronic monitoring.
Daigle did not show up for her arraignment on the new charge, so the sentencing court arraigned her at the beginning of the sentencing hearing.
On appeal, Daigle argues that the sentencing court improperly considered this pending charge when fashioning her sentence. She asserts that the new charge was disputed conduct that required the court to make findings resolving the factual dispute or declaring it irrelevant. But Daigle never made this argument in the trial court, and she did not object to the trial court considering the pending charge as verified police contact. We note that the trial court was also clear that it was "considering the fact that [Daigle was] charged with a theft offense" while "understand[ing] [she was] not convicted yet." Given these circumstances, we find no plain error in the trial court considering the pending charge when sentencing Daigle.
See Alaska R. Crim. P. 32.1(f)(5); Smith v. State, 369 P.3d 555, 559 (Alaska App. 2016) (Suddock, J., concurring) (explaining sentencing procedures).
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Lastly, Daigle argues her sentence is excessive. But in imposing the sentence, the superior court evaluated the circumstances of Daigle's case in light of the Chaney criteria. The court especially emphasized community condemnation and reaffirmation of societal norms, particularly in light of Daigle lying to one victim about her mother's death in order to get advance payments. The court also considered Daigle's history of similar theft offenses, the number of victims harmed, and the need for Daigle to restore the victims through restitution.
See State v. Chaney, 477 F.2d 441,443-44 (Alaska 1970) (codified in AS 12.55.005).
We have independently reviewed the record, and we conclude that the sentence imposed is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Conclusion
For the reasons explained in this memorandum opinion, the judgment of the superior court is AFFIRMED.