Opinion
Court of Appeals No. A-12627 No. 6723
10-31-2018
ILYA GHERMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Joe Montague, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kelly J. Lawson, Assistant District Attorney, Kenai, and Jahna Lindemuth, Attorney General, Juneau, 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. Trial Court No. 3KN-14-242 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Appearances: Joe Montague, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kelly J. Lawson, Assistant District Attorney, Kenai, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Ilya Gherman held his wife and his teenage daughter captive at gunpoint in his cabin. Based on this episode, Gherman was indicted on multiple charges, including kidnapping. Gherman ultimately reached a plea agreement with the State under Alaska Criminal Rule 11. Under the terms of this agreement, Gherman pleaded guilty to third-degree assault (placing another person in fear of injury by means of a weapon). The superior court sentenced Gherman to 5 years' imprisonment, with all but the time Gherman had already served suspended.
AS 11.41.220(a)(1)(A).
Gherman now appeals the suspended portion of his sentence, contending that it is excessive. For the reasons explained here, we conclude that Gherman's sentence is not clearly mistaken.
Factual background
According to the evidence presented to the superior court, Gherman had been acting "strange" for a long time before this episode. In February 2013, Gherman was released from the Alaska Psychiatric Institute following a court-ordered evaluation. He returned to the property in Anchor Point that he shared with his wife, Dina Gherman. Gherman lived in a cabin on the property, while Dina and their daughter M.G. lived in a home next to the cabin.
Not long after his return to the Anchor Point property, Gherman, who had been drinking heavily, asked Dina and M.G. to come into his cabin. They agreed to do so, apparently in an effort to calm him, without realizing that Gherman was about to terrorize them.
After the two entered the cabin, Gherman pointed an AK-47 rifle (and at times a handgun) at them. Gherman declared that he would shoot them if they attempted to flee. Gherman accused Dina of being a Russian spy, and he demanded that Dina place a call to the Central Intelligence Agency. Dina tried to do so, but it was after hours in Washington D.C., and the agency's public line was not open.
After Dina failed to make contact with the CIA, Gherman fired a round into the floor two feet from her. M.G. was lying nearby, curled up on a mattress. M.G. pleaded with her father to stop, but he told her to "shut the fuck up." Gherman then fired another round into the wall of the cabin. At this point, both women feared for their lives.
Around 11:00 p.m., Gherman passed out from drinking. Dina and M.G. sneaked out of the cabin and called the Alaska State Troopers.
The State indicted Gherman on two counts of kidnapping, two counts of third-degree assault, and one count of second-degree misconduct involving weapons.
AS 11.41.300(a)(1)(C) and (a)(2)(B), AS 11.41.220(a)(1)(A), and AS 11.61.195-(a)(3)(B), respectively.
In early 2016, three years after Gherman's crime, the parties negotiated a resolution of this case. Gherman pleaded guilty to third-degree assault (causing fear of injury with a weapon), and the State dismissed the remaining charges. Gherman stipulated to one aggravator: that his crime was a crime of domestic violence. He agreed to special conditions of probation requiring him to undergo substance abuse and mental health evaluations, and to comply with any resulting recommendations. All other probation conditions, and the duration of Gherman's sentence, were left open to the court.
AS 11.41.220(a)(1)(A).
AS 12.55.155(c)(18).
Gherman's only prior conviction was a 1993 misdemeanor for driving under the influence of alcohol. His sentencing range as a first felony offender was from 0 to 2 years in jail, but because of the domestic violence aggravator, the judge could sentence him to up to 5 years' imprisonment.
The parties agreed that Gherman was entitled to credit for the six months that he had spent on electronic monitoring, as well as for the 841 days that he had already served in jail.
At Gherman's sentencing hearing, the State recommended a sentence of 5 years' imprisonment with all but time served suspended. Gherman's attorney argued that Gherman should not receive a 5-year term, but the attorney did not propose a specific sentence.
The sentencing judge imposed a sentence of 5 years' imprisonment, with all but the time served suspended. The judge stated that Gherman's crime manifested "bizarre and aberrant behavior" — behavior caused by Gherman's use of alcohol and, perhaps, by mental illness.
The judge noted that Gherman had functioned well for the preceding three years, after his return to sobriety. But the judge cautioned Gherman that, if he did not remain sober, the judge could impose additional time.
Why we conclude that Gherman's sentence was not excessive
We reverse a sentence as excessive only when we are convinced that the trial court was "clearly mistaken" in imposing the sentence it did. While a defendant's suspended jail time is part of this calculation, we accord suspended time less weight than active jail time in analyzing a sentence.
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Karr v. State, 686 P.2d 1192, 1194 (Alaska 1984) (citing Leuch v. State, 633 P.2d 1006, 1010 (Alaska 1981)); see also Smith v. State, 349 P.3d 1087, 1089-90 (Alaska App. 2015) (vacating as excessive a sentence that included 72 years of suspended jail time).
On appeal, Gherman argues that the suspended time imposed in his case is excessive. He points out that, at the time of his sentencing hearing, the presumptive ranges for first and second felony offenders convicted of a class C felony were 0 to 2 years and 2 to 4 years, respectively.
Former AS 12.55.125(e)(1)-(2) (pre-July 2016 version).
Gherman's argument to this Court focuses mainly on the fact that, due to the imposition of the suspended time, his sentence exceeds the upper end of the presumptive range for a second felony offender convicted of third-degree assault. Gherman contends that, given his minimal criminal history, his case did not merit a sentence greater than the time that he had already served, and therefore the judge should not have imposed any suspended time at all.
But as we explained earlier, Gherman stipulated to an aggravating factor, and thus his maximum sentence was 5 years' imprisonment. Moreover, if the judge had imposed a sentence that did not include suspended jail time, this would have been inconsistent with the parties' plea bargain.
Gherman's plea agreement with the State called for Gherman to be placed on probation with special conditions addressing his substance abuse and mental health issues. To fulfill this aspect of the agreement, the superior court was required to suspend a portion of Gherman's sentence — because, under Alaska law (with a few statutory exceptions), probation cannot be imposed unless a portion of the defendant's sentence is suspended.
See Manderson v. State, 655 P.2d 1320, 1324 (Alaska App. 1983) (holding that a term of probation is "meaningless" in the absence of a suspended term of imprisonment).
Thus, the only way the sentencing judge could give effect to the parties' plea agreement was to impose some amount of suspended jail time, over and above the time that Gherman had already served.
With respect to whether the judge was clearly mistaken regarding the amount of suspended jail time to impose, we note that Gherman terrorized his wife and daughter, causing them to fear for their lives — both by expressly threatening to kill them if they tried to leave, and by firing gunshots into the wall and floor of the cabin. Given the facts of this case, we conclude that the judge's sentencing decision was not clearly mistaken.
Conclusion
We AFFIRM the superior court's sentencing decision.