Opinion
Court of Appeals No. A-8748.
October 27, 2004.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Trial Court No. 3KN-02-191 Cr.
Owen M. Sullivan, Assistant Public Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
J. Jake Ketscher, Assistant District Attorney, Kenai, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Doris J. Lageson appeals the 3-year sentence imposed on her after the superior court found that she violated the conditions of her probation from her conviction for second-degree theft. For the reasons explained here, we remand Lageson's case to the superior court for reconsideration of her sentence under the rule codified in AS 12.55.125(k)(2) — the rule that a first felony offender should normally receive no more time to serve than the presumptive term established for second felony offenders convicted of the same offense (in this case, 2 years).
In November 2002, Lageson was convicted of second-degree theft for stealing approximately $750 worth of merchandise from the Fred Meyer store in Soldotna.
Second-degree theft is a class C felony with a sentencing range of 0 to 5 years' imprisonment. Lageson had a lengthy history of misdemeanor criminal offenses spanning the previous 15 years, but she was a first felony offender. Superior Court Judge Jonathan H. Link sentenced Lageson to 3 years' imprisonment with all but 3 months suspended.
AS 11.46.130 (c); AS 12.55.125(e).
On February 26, 2003, after Lageson served her 3 months in jail, she was released to begin her term of probation. Over the course of the next nine months, Lageson repeatedly violated the conditions of her probation by consuming alcohol and using cocaine and methamphetamine. However, because Lageson was undergoing either evaluation or treatmentin various substance abuse programs, Lageson's probation officer chose not to petition the superior court to revoke Lageson's probation until mid-August 2003 (prompted by a new round of illegal drug-taking).
Even with this petition to revoke her probation pending in the superior court, Lageson continued to use cocaine and methamphetamine, and she failed to attend after-care sessions that were a required part of her drug treatment program. (Lageson was terminated from the program for her failure to attend these after-care sessions.)
Lageson had demonstrated a similar inability to control her behavior when the second-degree theft charge was originally pending. In July 2002, while Lageson was in jail awaiting the disposition of that second-degree theft charge, the prison authorities released her for twelve hours so that she could obtain a substance abuse evaluation; instead of returning to prison, Lageson absconded.
All of the above information was provided to the superior court in Lageson's original pre-sentence report and in a supplemental pre-sentence report that was prepared in advance of Lageson's sentencing for violating her probation. The presentence investigator told the superior court that Lageson's efforts at rehabilitation in community-based or short-term residential treatment programs had achieved "little success", and that Lageson "simply [could] not be trusted to do what the court has ordered her to do". The pre-sentence investigator concluded that Lageson was "in need of long[-]term residential treatment to address her substance abuse problem", and that rehabilitation could best be achieved if Lageson participated in the women's residential substance abuse program offered by the Department of Corrections at the Hiland Mountain Correctional Center.
Based on Lageson's history of repeated probation violations and the seeming intractability of Lageson's addiction to illicit drugs, the pre-sentence investigator recommended that the superior court impose the remaining 33 months of Lageson's sentence.
Superior Court Judge Charles T. Huguelet adopted this recommendation. In his sentencing remarks, Judge Huguelet concluded that Lageson's history of violations — in particular, her repeated use of illicit drugs — demonstrated that it was no longer possible to believe Lageson's protestations that she intended to deal with her drug problem.
Judge Huguelet also indicated that he believed a lengthy sentence was necessary to deter Lageson and other addicts like her. The judge stated: "When we give someone a chance to be treated, and [we] tell them that we're going to suspend jail time [on the condition that treatment is successful], we have to show them — and show the community — that we mean it."
Finally, Judge Huguelet concluded that a lengthy sentence was necessary to assure Lageson's rehabilitation. He stated: "I can't responsibly turn you loose again, because I know what will happen. You'll continue to use drugs . . . instead of going to treatment. I suspect [that], within the next two or three years, you'll be dead. . . . And I think that the Chaney factors . . . give me no choice but to require you to serve the 33 months that were [previously] suspended."
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Lageson contends that this 33-month sentence is excessive — that Judge Huguelet should not have sentenced her to more than the 12 months that it normally takes an inmate to complete the Hiland Mountain substance abuse program. But rehabilitation of the offender is only one of the sentencing goals listed in AS 12.55.005. Given Lageson's lengthy history of criminal convictions, as well as her repeated drug offenses that were charged only as probation violations, Judge Huguelet could properly conclude that other sentencing goals should also be taken into account — in particular, the goals of isolation, deterrence, and community condemnation. Judge Huguelet was not clearly mistaken when he concluded that these other sentencing goals called for more than an additional 12 months to serve.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
Lageson also contends that Judge Huguelet failed to abide by the rule codified in AS 12.55.125(k)(2) — the rule that, in the absence of aggravating factors or extraordinary circumstances, a first felony offender should receive no more time to serve than the presumptive term established for second felony offenders convicted of the same offense. This rule is often referred to as the " Austin" rule, because this Court initially adopted an analogous rule as a matter of common law in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981).
See AS 12.55.155 (c).
See AS 12.55.165.
Lageson was a first felony offender convicted of second-degree theft, a class C felony. The presumptive term established by the legislature for second felony offenders convicted of the same crime is 2 years' imprisonment. With the imposition of the previously suspended 33 months, Lageson's sentence for second-degree theft is now 3 years to serve — one year more than the 2-year presumptive term for second felony offenders.
AS 12.55.125 (e)(1).
The Austin rule — that is, the sentencing rule codified in AS 12.55.125(k)(2) — applies to sentences imposed on first felony offenders when their probation is revoked. However, we have held that "when a history of probation violations establishes a person's poor prospects for rehabilitation, that fact may be deemed an extraordinary circumstance justifying the imposition of a sentence in excess of the Austin limits". Chrisman v. State, 789 P.2d 370, 371 (Alaska App. 1990). Thus, there will be times when a judge sentencing a first felony offender for a probation violation can properly impose a sentence that exceeds the presumptive term for second felony offenders, even though no aggravating factors were proved at the defendant's original sentencing. As we explained in Chrisman,
See Espinoza v. State, 901 P.2d 450, 452-53 (Alaska App. 1995).
The relevant question in such cases is whether the totality of the circumstances upon revocation of probation would have justified a sentence in excess of the Austin limits if [these circumstances were] known when the original sentence was imposed. Before finding that an offender's probation violations justify a total sentence exceeding the applicable presumptive term for a second felony offender, the sentencing court must conclude that the offender's poor conduct on probation, when viewed in conjunction with all of the originally available sentencing information, renders the case even more serious — and therefore deserving of even greater punishment — than the case of a typical second felony offender committing a typical offense of the same class.
Chrisman, 789 P.2d at 371 (citation omitted).
Although Judge Huguelet discussed the Chaney sentencing factors at some length at Lageson's sentencing hearing, the judge did not address the Austin rule. Thus, Judge Huguelet sentenced Lageson to a term of imprisonment greater than the 2-year Austin ceiling without making the finding required by Chrisman — the finding that, given the totality of the circumstances (including Lageson's conduct while on probation), Lageson's case was more serious than the case of a typical second felony offender committing a typical second-degree theft.
For this reason, we must remand Lageson's case to the superior court for reconsideration of Lageson's sentence. If Judge Huguelet concludes that a sentence of more than 2 years to serve is justified under AS 12.55.125(k)(2), he should make express findings to this effect and forward those findings to us. In this event, the parties will have the opportunity to file supplemental briefs addressing the judge's findings. On the other hand, if Judge Huguelet concludes that the facts of Lageson's case do not justify a sentence greater than the Austin ceiling ( i.e., greater than 2 years' imprisonment), he should reduce Lageson's sentence, enter an amended judgement, and notify us of this fact.
Judge Huguelet shall complete these proceedings on remand within 90 days following the issuance of this opinion. (If more time is required, the judge may ask us to extend this deadline.)
If Judge Huguelet re-affirms Lageson's sentence of 3 years to serve (or if the judge reduces Lageson's sentence but still imposes more than 2 years to serve), the parties shall have 30 days to file supplemental briefs addressing the judge's findings. We will then renew our consideration of Lageson's sentence.
If Judge Huguelet reduces Lageson's sentence to 2 years to serve or less, the judge shall issue an amended judgement and shall notify us of his action. We will then close this appeal.
We retain jurisdiction of this case pending the superior court's completion of the proceedings on remand