Opinion
Court of Appeals No. A-10621.
July 28, 2010.
Appeal from the Superior Court, First Judicial District, Petersburg, Trevor N. Stephens, Judge, Trial Court No. 1PE-06-21 CR.
Nancy Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. Angie Kemp, Assistant District Attorney, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Thomas Evenson III was originally charged with murder for participating in an incident that resulted in the death of Michael Gerber. After two trials in which the jury was unable to reach a verdict, Evenson pleaded no contest to assault in the second degree, a class B felony, and agreed to a sentence of 8 years with 3 years suspended. Superior Court Judge Trevor N. Stephens sentenced Evenson on January 4, 2008.
In sentencing Evenson, Judge Stephens recognized that Evenson had not been convicted of a homicide. But he found that the offense was "a fairly serious" assault in the second degree and observed that Evenson's "conduct was part and parcel of a scenario that ended up resulting in Mr. Gerber's death."
Judge Stephens emphasized that Evenson had "a remarkable criminal record." He observed that Evenson's current conviction was his eighth or ninth assault conviction and his second felony assault conviction as an adult. Judge Stephens observed that Evenson had numerous "very serious probation violations." He also concluded that Evenson appeared to have problems controlling his temper and had "significant substance abuse problems."
As special conditions of probation, Judge Stephens ordered Evenson to not possess any controlled substances, to not possess or consume alcoholic beverages or be in any place where alcohol is served, and to submit to chemical testing for alcohol consumption. Additionally, he was "not to knowingly associate with a person who is on probation or parol or . . . has a record of a felony conviction" without the permission of his parole officer.
On June 11, 2009, Evenson was released on probation and parole supervision. Approximately a month and a half later, a police officer asked Evenson to come to the police station. Evenson was intoxicated when he came to the police station. The next day, the police contacted Evenson and had him submit to a breath test for alcohol. The test resulted in a breath alcohol content of .340. Evenson was arrested for violating his mandatory parole. The State charged Evenson with violating his conditions of probation by consuming alcohol.
After he was arrested for the parole violation, Evenson stated that he was living at the residence of a woman who was on probation for a felony drug offense. He admitted that he had been drinking and using OxyContin with her.
Evenson admitted that he violated his probation by consuming alcohol. At disposition, Judge Stephens relied on Toney v. State. In Toney, we pointed out that the court could not automatically impose all previously suspended jail time but must consider numerous factors:
785 P.2d 902 (Alaska App. 1990).
The sentencing court cannot automatically reinstate all previously suspended jail time when a probationer violates the conditions of probation. The court must instead consider all available sentencing evidence, including information concerning the defendant's background, the seriousness of the original offense, the nature of the defendant's conduct while on probation, and the seriousness of the violations that led to the revocation.
Id. at 903 (footnotes omitted).
Judge Stephens found that Evenson's original offense was "quite serious." He noted Evenson's extensive prior record, which included twenty-two prior convictions of which eight were assaults. He observed that at least six of these prior assaults appeared to be alcohol related based on the fact that substance abuse treatment was ordered as a condition of probation. He found that Evenson's probation violations were serious. Judge Stephens recognized that in violating his probation, Evenson had not committed an assault, but the judge concluded that because of the role that alcohol intoxication had played in his prior criminal offenses, Evenson's high level of intoxication was a serious concern. He observed that Evenson had stated that he had been drinking every day, using OxyContin, and either living with or spending significant time with a woman who was on felony probation. He pointed out that using OxyContin was felony-level conduct, and associating with a person on felony probation was a violation of Evenson's probation. Judge Stephens observed that, based upon his record, Evenson was close to being a "worst offender." He noted that Evenson's numerous failures on probation indicated that Evenson had poor prospects for rehabilitation. Judge Stephens concluded that he needed to impose a sentence that would isolate Evenson in order to protect the public. He imposed the remaining 3 years of suspended time and made that sentence consecutive to time which the parole board imposed in revoking Evenson's mandatory parole.
Approximately three weeks later, the parole board revoked Evenson's parole and required him to serve the remainder of his sentence. The parole board made this sentence consecutive to Judge Stephens's imposition of suspended time.
On appeal, Evenson argues that Judge Stephens did not consider all of the factors set forth in Toney in imposing sentence. He argues that Judge Stephens did not adequately consider the seriousness of the violations that led to the revocation, his conduct on probation, and his prospects for rehabilitation. But, Judge Stephens specifically considered Toney and applied the Toney factors in determining an appropriate sentence for Evenson.
Evenson points out that he was subject to sentencing as a first felony offender and yet Judge Stephens sentenced him to 8 years of imprisonment, close to the 10-year maximum. He argues that Judge Stephens should have found that he was a "worst offender" before imposing that sentence.
In order to sentence Evenson to 8 years of imprisonment, which was a sentence less than the 10-year maximum sentence for assault in the second degree, Judge Stephens was not required to find that Evenson was a "worst offender." And although Evenson was a first felony offender for purposes of the presumptive sentencing, the court found aggravating factors based upon his extensive prior record, and approved his plea bargain for a sentence of 8 years with 3 years suspended. When Evenson violated his probation, Judge Stephens could properly conclude that Evenson's behavior for the short period of time he was on probation demonstrated that he was an offender who needed to be isolated in order to protect the public from further serious criminal activity.
See Foley v. State, 9 P.3d 1038, 1041 (Alaska App. 2000) (sentencing judge must find the defendant is a "worst offender" before sentencing him to the maximum term of imprisonment).
Evenson contends that Judge Stephens did not comply with Criminal Rule 32.2(c)(1) by stating "clearly the precise terms of the sentence, the reasons for selecting the particular sentence, and the purposes the sentence is intended to serve." He also contends that Judge Stephens did not comply with AS 12.55.025(a)(3). This statute requires the court to provide "a clear statement of the terms of the sentence imposed." If the court imposes a term of imprisonment, the court must include "the approximate minimum term the defendant is expected to serve before being released or placed on mandatory parole . . . and the approximate minimum term of imprisonment the defendant must serve before being eligible for release on discretionary parole."
AS 12.55.025(a)(3)(A) (B).
As we have previously stated, Judge Stephens fully explained why he revoked all of Evenson's previously suspended sentence. Evenson's real complaint is that when he imposed the sentence, Judge Stephens did not know what action the parole board would take. But it was obvious from Judge Stephens's sentencing remarks that he concluded that it was necessary to impose all of Evenson's suspended time, and that it was necessary to impose that time consecutively to any time which the parole board would impose. Because the parole board took its action after Judge Stephens imposed Evenson's sentence, it was impossible for the judge to know exactly what the parole board would do. He was not required to delay sentencing Evenson until after the parole board acted. We conclude that Judge Stephens fully explained his sentence and that he complied with Criminal Rule 32.2(c)(1) and AS 12.55.025(a)(3).
Judge Stephens considered the seriousness of Evenson's original offense, his extensive prior criminal record, and the seriousness of his probation violations in imposing sentence. We conclude that the sentence which Judge Stephens imposed was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.