Opinion
A-13598 A-13597
06-14-2023
CARLTON WILLIAM DONNELLY, Appellant, v. STATE OF ALASKA, Appellee.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Anchorage Trial Court Nos. 3AN-11-13926 CR & 3AN-14-08520 CR, Frank A. Pfiffner, Judge.
Sharon Barr, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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.
SUMMARY DISPOSITION
Carlton William Donnelly was convicted of six felonies across two cases. In a 2011 case, Donnelly was convicted of third-degree misconduct involving weapons and fourth-degree misconduct involving a controlled substance. In a 2014 case, Donnelly was convicted of second-degree and fourth-degree misconduct involving a controlled substance, third-degree assault, and first-degree failure to stop at the direction of a peace officer. Donnelly was sentenced in a consolidated hearing to a composite term of 17 years to serve. He now appeals, raising two claims regarding his conviction for second-degree misconduct involving a controlled substance (2014 case), and one claim regarding his composite sentence (2011 and 2014 cases).
AS 11.61.200(a)(1) and former AS 11.71.040(a)(3)(A) (2011), respectively. Donnelly pleaded no contest to third-degree misconduct involving weapons, and a jury found him guilty of fourth-degree misconduct involving a controlled substance.
Former AS 11.71.020(a)(1) (2014), former AS 11.71.040(a)(3)(A)(ii) (2014), AS 11.41.220(a)(1)(B), and AS 28.35.182(a)(3), respectively. Donnelly was convicted of these charges following a jury trial.
Donnelly first challenges his indictment for second-degree misconduct involving a controlled substance (possessing heroin with the intent to distribute). At the grand jury proceeding, one police officer testified that 1.67 grams of heroin was recovered from Donnelly's car and another testified that 1.49 grams of heroin was recovered. But the crime laboratory report, issued after the grand jury, clarified that the police only recovered 0.29 grams of heroin. Prior to trial, Donnelly argued that, had the grand jury heard the correct (lower) weight, it would have found that he possessed the heroin for personal use, rather than for distribution. The superior court denied Donnelly's motion to dismiss the indictment, recognizing that the officer had misstated the quantity of drugs, but citing "a substantial amount of other evidence" that the heroin was intended for distribution. Donnelly appeals this ruling.
When a defendant challenges an indictment on the ground that the State presented false or inaccurate evidence to the grand jury, the court must evaluate whether the misstatement was a material one that substantially affected the grand jury's conclusion. We agree with the superior court that the officer's false testimony about the amount of heroin in Donnelly's possession would not have substantially affected the grand jury's conclusion. The grand jury heard testimony that, in addition to heroin, the following items were discovered in Donnelly's car: several grams of cocaine, over seven grams of marijuana, a handgun, $1,635 in cash, two cell phones, two scales, a metal tray with heroin residue, a knife with heroin residue, and latex gloves with heroin residue. Additionally, the grand jury heard testimony that drug dealers commonly sell multiple drugs, and that no paraphernalia associated with personal consumption was found in Donnelly's car. Given this other evidence, the superior court did not err in ruling that the officer's testimony inflating the quantity of heroin was immaterial to the grand jury's conclusion that the heroin was intended for distribution.
McMahan v. State, 617 P.2d 494, 500-01 (Alaska 1980) (holding that, while it was unclear whether the officer's false testimony was intentional, the misstatement was not so material as to require dismissal of the indictment).
Donnelly next argues that his conviction for second-degree misconduct involving a controlled substance must be reversed because the court admitted improper testimony at trial. At trial, two police officers described the drugs and drug paraphernalia that the police recovered from Donnelly's car, and offered their expert opinions about what this evidence implied. One officer stated that Donnelly possessed cocaine and heroin for "distribution" and "delivery" rather than for personal use, and the other officer stated that it was Donnelly's "intent to distribute." On appeal, Donnelly argues that the officers improperly offered their opinions on the ultimate issue of Donnelly's guilt - i.e., whether Donnelly intended to distribute drugs.
One police officer was qualified as an expert, and the other was qualified as a hybrid witness.
We agree that the officers' testimony may have crossed a line, but conclude that any error was harmless in light of the other evidence presented and the jury's decision to acquit Donnelly of possessing cocaine with the intent to distribute.
Donnelly was charged with second-degree misconduct involving a controlled substance (for possessing heroin with the intent to distribute), and third-degree misconduct involving a controlled substance (for possessing cocaine with the intent to distribute). At trial, the State introduced similar evidence in support of both offenses (i.e., the items found in Donnelly's car and the officers' opinion testimony). However, while the jury convicted Donnelly of the heroin offense, it acquitted him of possessing cocaine with the intent to distribute (convicting him instead of the lesser included offense of possessing cocaine). This split decision shows that the jury did not accept at face value the officers' opinions that Donnelly intended to distribute both drugs. Rather, the jury critically evaluated the testimony alongside other evidence, and concluded that Donnelly intended to distribute heroin but not cocaine. (This may have been due to the fact that the knife, tray, and latex gloves found in Donnelly's car had heroin residue on them, but not cocaine residue.) Any error was therefore harmless.
Former AS 11.71.020(a)(1) (2014), and former AS 11.71.030(a)(1) (2014), respectively.
Finally, Donnelly argues that his composite sentence was excessive because the superior court gave inadequate weight to two mitigating factors. When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different judges, confronted with identical facts, will differ on what constitutes an appropriate sentence and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences. When a judge sentences a defendant for two or more offenses, Alaska law does not require that each specific sentence is individually justifiable; rather, the question is whether the composite sentence is justified in light of the defendant's conduct and background.
Donnelly asks us to transfer his sentence appeal to the Alaska Supreme Court, suggesting that this Court does not have jurisdiction to consider his excessive sentence claim. But under Mund v. State, this Court does have jurisdiction, so we proceed to decide the issue on the merits. Mund v. State, 325 P.3d 535, 548 (Alaska App. 2014) (holding that this Court has jurisdiction to hear excessive sentence claims from, inter alia, defendants whose felony sentence exceeds 2 years, even if the sentence is within the applicable presumptive range).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Felber v. State, 243 P.3d 1007, 1013 (Alaska App. 2010) (citations omitted).
Donnelly, a third felony offender, was sentenced for six separate felony offenses at a consolidated hearing. The superior court found that two aggravating factors applied to all six convictions. The court also found that one mitigating factor applied to Donnelly's three drug-related convictions ("small quantities of a controlled substance"), and a second mitigating factor applied to his conviction for third-degree weapons misconduct ("least serious conduct"). Ultimately, the court sentenced Donnelly to a composite term of 17 years to serve - imposing the minimum sentence within the presumptive range for each individual conviction and running some of the sentences concurrently.
AS 12.55.155(c)(8) (past aggravated or repeated assaultive behavior); AS 12.55.155(c)(31) (five or more prior misdemeanor convictions). The court also found that an aggravator applied to Donnelly's third-degree assault conviction. AS 12.55.155(c)(21) (repeated instances of conduct similar to the current conviction).
AS 12.55.155(d)(13).
AS 12.55.155(d)(9).
The court declined to sentence Donnelly below the presumptive ranges due to his extensive criminal history (which included two felony convictions and fifteen misdemeanor convictions), and his drug use, which dated back to at least 2010. The court identified isolation and deterrence as important sentencing goals, and did not suspend any time because of Donnelly's "slim" prospects for rehabilitation and poor past performances on supervised release. Having independently reviewed the record, we conclude that the court did not abuse its discretion in declining to give more weight to the mitigators and that Donnelly's composite sentence was not clearly mistaken.
See Marzak v. State, 796 P.2d 1374, 1377 (Alaska App. 1990) (reviewing court's weighing of aggravating and mitigating factors for an abuse of discretion); Machado v. State, 797 P.2d 677, 689 (Alaska App. 1990) (explaining that the sentencing court is not required to give weight to mitigating factors, which may be "outweighed by the existence of other factors").
The judgments of the superior court are AFFIRMED.