Opinion
Court of Appeals No. A-13257 No. 6865
04-15-2020
CARLTON WILLIAM DONNELLY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Matthew Michalski, Attorney at Law, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court Nos. 3AN-16-09671 CR, 3AN-17-08670 CR, & 3AN-17-09182 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Douglas Kossler, Judge. Appearances: Matthew Michalski, Attorney at Law, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Carlton William Donnelly pleaded no contest to fear assault, resisting arrest, and unlawful contact. He received a composite sentence of 2.5 years with approximately 6 months suspended, or approximately 2 years to serve.
Anchorage Municipal Code (AMC) 08.10.010(B)(3), AMC 08.30.010(A)(3), and AMC 08.30.115(A), respectively.
On appeal, Donnelly argues that his sentence violates the Neal-Mutschler rule. Under the Neal-Mutschler rule, "where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public," or to serve other sentencing goals. Here, the maximum sentence for the most serious counts was 1 year, but Donnelly received a composite sentence of approximately 2 years.
Neal v. State, 628 P.2d 19, 21 (Alaska 1981) (citing Mutschler v. State, 560 P.2d 377, 381 (1977)) (other citations omitted).
Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010) (holding that "a composite sentence greater than the Neal ceiling can sometimes be justified by sentencing goals other than the particular goal of protecting the public").
AMC 08.05.020(H)(1).
Donnelly points out that the sentencing judge did not make a formal finding that confinement for longer than the maximum sentence for the most serious count was necessary. But even when the sentencing court fails to make a formal finding, this Court may affirm a composite sentence that exceeds the Neal-Mutschler ceiling if the sentencing record contains "ample evidence" that the longer sentence was justified.
Neal, 628 P.2d at 21; see Gonzalez v. State, 2015 WL 4387690, at *2 (Alaska App. July 15, 2015) (unpublished).
The sentencing record in Donnelly's case contains ample evidence that the longer sentence was justified. The district court found that Donnelly was a worst offender with respect to the fear assault (a finding that is not challenged on appeal). The court also noted that Donnelly had sixteen prior convictions over the previous two decades, and that this was Donnelly's sixth conviction for assaultive conduct and his fourth conviction for unlawful contact. Finally, although Donnelly's three convictions were factually connected, they concerned three separate criminal incidents that occurred over the course of a year, a fact that we have previously recognized may justify the imposition of a composite sentence that exceeds the Neal-Mutschler ceiling.
Phelps, 236 P.3d at 393-94 (affirming a sentence above the Neal-Mutschler ceiling in part because the two convictions were "completely separate criminal episode[s]"). --------
The judgments of the district court are AFFIRMED.