Opinion
Court of Appeals No. A-11853 Court of Appeals No. A-11854 Court of Appeals No. A-11863 No. 6208
07-15-2015
MICHAEL STEVEN GONZALEZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. A. James Klugman, Assistant District Attorney, Anchorage, and Michael C. Geraghty, 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 Nos. 3AN-11-1239 CR, 3AN-13-5576 CR, & 3AN-13-10726 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Jo-Ann Chung, Judge. Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. A. James Klugman, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Michael Steven Gonzalez appeals the composite sentence of 400 days to serve that he received in three cases — three criminal convictions from 2013, plus a probation revocation in an earlier case.
Gonzalez raises various challenges to the individual components of his composite sentence. But when a defendant pursues a sentence appeal after being sentenced for two or more crimes, we do not assess whether the defendant's sentences for particular crimes are individually justifiable, viewed in isolation. Rather, the question on appeal is whether the defendant's composite sentence is clearly mistaken in light of the defendant's background and the totality of the defendant's conduct.
See Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987); Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988).
See Neal v. State, 628 P.2d 19, 21-22 n.8 (Alaska 1981); Comegys, 747 P.2d at 558-59.
Based on Gonzalez's background and the totality of his conduct, we conclude that his composite sentence is not clearly mistaken, and we therefore affirm the district court's sentencing decision.
Background
Gonzalez was formerly involved in a romantic relationship with Deana Schubert, and they have a child together. On May 20, 2013, just after Schubert dropped the child off at a day care facility, Schubert encountered Gonzalez in the parking lot. As Schubert drove past him, Gonzalez punched the rear passenger-side door of her vehicle, damaging the vehicle. Gonzalez then got into his vehicle and followed Schubert for a mile or two.
Based on this conduct, the State charged Gonzalez with third-degree criminal mischief (intentionally causing $500 or more of damage to someone else's property). Gonzalez was charged with an additional crime — second-degree unlawful contact — for calling Schubert after he was arrested on the criminal mischief charge.
Former AS 11.46.482(a)(1).
AS 11.56.755.
Gonzalez was charged with a third crime — violation of a domestic violence protective order — after he mailed Schubert a petition to modify a long-term protective order while he was in jail. (The underlying protective order specifically ordered Gonzalez to serve all legal papers concerning the protective order through the court clerk's office only.)
AS 11.56.740(a)(1); AS 18.66.100(a).
To resolve these various charges, plus petitions to revoke his probation in several earlier cases, Gonzalez entered a plea agreement with the State. Under the terms of this agreement, Gonzalez pleaded guilty to fourth-degree criminal mischief and to second-degree unlawful contact in File No. 3AN-13-5576 Cr, and he pleaded guilty to violating a domestic violence protective order in File No. 3AN-13-10726 Cr. Gonzalez also admitted that he violated his probation in File No. 3AN-11-1239 Cr by committing new jailable offenses. In exchange for Gonzalez's pleas, the State withdrew the petitions to revoke his probation in the other cases.
Gonzalez's plea agreement left his sentencing open.
The record before the district court showed that Gonzalez had an extensive criminal history that began in 2007. That history included six convictions for fourth-degree assault, one conviction for third-degree assault, one conviction for driving without insurance, two convictions for violating his conditions of release, two convictions for violating domestic violence protective orders, one conviction for first- degree unlawful contact, and two convictions for second-degree harassment. Most of Gonzalez's convictions were crimes of domestic violence committed against Schubert.
At sentencing, the State argued that the court should impose a composite sentence of 735 days to serve, based on Gonzalez's "very long history" of committing acts of domestic violence against Schubert. The State pointed out that Gonzalez had not been deterred by the sentences he had received in his many previous cases. Gonzalez's attorney asked the court to impose a composite sentence of 180 days. The defense attorney argued that, given Gonzalez's relative youth, he should get another opportunity to change his behavior.
The district court imposed a composite sentence of 400 days to serve, and Gonzalez now appeals that sentence.
Why we affirm the district court's sentencing decision
As we noted earlier, Gonzalez raises attacks on individual sentences within his composite sentence. He argues that his sentence for criminal mischief is clearly mistaken because the sentencing judge did not sufficiently consider his rehabilitative potential or the fact that this was his first conviction for criminal mischief. He also argues that his sentence for unlawful contact is improper because the sentencing judge did not make sufficient findings to justify treating him as a "worst offender" and imposing the maximum sentence for that offense.
When a defendant attacks a composite sentence as excessive, Alaska law directs us to focus on the justification for the defendant's composite sentence, rather than on the justification for any individual sentence the defendant received for a specific offense. The question is not whether any individual sentence is justified when viewed in isolation. Instead, the question is whether the composite sentence is clearly mistaken, given the whole of the defendant's conduct and history.
See Neal, 628 P.2d at 21 n.8; Pusich v. State, 907 P.2d 29, 39 (Alaska App. 1995); Comegys, 747 P.2d at 558-59.
Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys, 747 P.2d at 558-59.
Given Gonzalez's criminal history and the totality of the conduct underlying his current offenses, we conclude that the district court was not clearly mistaken when it imposed a composite sentence of 400 days.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
We acknowledge that Gonzalez's composite sentence of 400 days exceeds the maximum sentence for his single most serious offense (365 days). Under the sentencing guideline articulated in Neal v. State, a judge must affirmatively justify the decision to impose such a sentence, either by finding that the longer sentence is necessary to protect the public or by finding that the longer sentence is required by one of the other sentencing goals codified in AS 12.55.005.
See AS 12.55.135(a) (providing that a defendant convicted of a class A misdemeanor, such as Gonzalez's conviction for fourth-degree criminal mischief, may be sentenced to a term of imprisonment of not more than 1 year).
See Neal, 628 P.2d at 21; Phelps v. State, 236 P.3d 381, 393-94 (Alaska App. 2010).
But as the Neal decision recognizes, even when a sentencing judge fails to make an explicit Neal finding, this Court may affirm a composite sentence that exceeds the maximum for the defendant's single most serious offense if the sentencing record contains "ample evidence" that the longer sentence was necessary. The record in Gonzalez's case amply supports the district court's decision to impose a composite term of 400 days.
See, e.g., Neal, 628 P.2d at 21; see also Waters v. State, 64 P.3d 169, 175 (Alaska App. 2003).
Conclusion
We AFFIRM the judgment of the district court.