Opinion
Court of Appeals No. A-12108 No. 6291
02-24-2016
JASON BENJAMIN O'BRYAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brendan Kelley, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. David A. Buettner, Assistant District Attorney, Fairbanks, and Craig W. Richards, 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. 4FA-13-273 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany Harbison, Judge. Appearances: Brendan Kelley, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. David A. Buettner, Assistant District Attorney, Fairbanks, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
The superior court sentenced Jason Benjamin O'Bryan to a composite sentence of 10 years to serve — 17 years with 7 years suspended — for O'Bryan's convictions of second-degree robbery, attempted second-degree misconduct involving a controlled substance, and second-degree theft. O'Bryan appeals this sentence as excessive. We reject his argument and affirm the sentence.
The State indicted O'Bryan for nineteen crimes after he stole $2741 from his grandmother's bank account and then used a gun to rob a drug dealer of approximately $500 worth of heroin, all in the month of January 2013. O'Bryan subsequently pled guilty to second-degree robbery, attempted second-degree controlled substance misconduct, and second-degree theft in a plea agreement with the State. The plea agreement left O'Bryan's sentence to the discretion of the superior court.
AS 11.41.510(a)(1); AS 11.71.020(a)(1); AS 11.46.130(a)(1).
O'Bryan was 22 years old at the time of sentencing and already had a significant criminal history. As a juvenile, O'Bryan was adjudicated a delinquent minor for fourth-degree criminal mischief and fifth-degree weapons misconduct in 2007. Over the next two years, he received residential treatment and was confined in McLaughlin Youth Center. In 2009, his juvenile probation was extended because of violations.
O'Bryan had a 2011 conviction for fourth-degree controlled substance misconduct for taking his grandmother's prescription Fentanyl patches and smoking them. In 2012, the superior court revoked O'Bryan's probation for this 2011 offense and imposed 271 days of incarceration after O'Bryan was convicted of third-degree theft for stealing and pawning an iPhone. O'Bryan also had two convictions for driving without a license from 2010 and 2012.
As a result of his 2011 fourth-degree controlled substance conviction, O'Bryan was a second felony offender for sentencing purposes in this case. O'Bryan thus faced a presumptive sentencing range of 4 to 7 years for the second-degree robbery conviction, a presumptive sentencing range of 4 to 7 years for the attempted second- degree controlled substance misconduct conviction, and a presumptive sentencing range of 2 to 4 years for the second-degree theft conviction.
AS 12.55.125(d)(3); AS 12.55.125(e)(2).
At the sentencing hearing, Superior Court Judge Bethany Harbison stated that although she was "able to make" the required finding for imposing a sentence above the maximum sentence for second-degree robbery, she did not need to because it was unnecessary to confine O'Bryan for more than 10 years. But she found that there was an elevated need to confine O'Bryan, observing that O'Bryan had been undeterred by his past adult and juvenile incarcerations and that his past treatments had not resulted in his rehabilitation. She found that O'Bryan's criminal history was substantial, his drug addictions were entrenched, and his prospects for rehabilitation were "extremely guarded."
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); see also Phelps v. State, 236 P.3d 381, 382, 384-85, 392-93 (Alaska App. 2010) (discussing Neal v. State and the finding required when a judge is sentencing a defendant to a composite sentence that will exceed the maximum sentence for the defendant's most serious offense).
The superior court imposed a sentence of 7 years with 2 years suspended for the robbery conviction, a sentence of 7 years with 3 years suspended for the controlled substance conviction, and a sentence of 4 years with 2 years suspended for the theft conviction. The court imposed all the sentences consecutively with the exception of one unsuspended year of the controlled substance sentence, resulting in a composite sentence of 17 years with 7 years suspended, or 10 years to serve.
O'Bryan argues that his composite sentence of 10 years to serve is the equivalent of a "worst offender" maximum sentence for second-degree robbery, and therefore that the sentence is excessive. O'Bryan is correct that the 10 years to serve equals the maximum sentence for second-degree robbery. But the superior court was also sentencing O'Bryan for two other crimes besides robbery: attempted second-degree misconduct involving a controlled substance, a class B felony like second-degree robbery, and second-degree theft, a class C felony. The court found that the offenses were "serious ... particularly wrapped together," and, as previously mentioned, found that there was an elevated need to confine O'Bryan and that his rehabilitation prospects were extremely guarded.
See AS 12.55.125(d) (maximum sentence for a class B felony is 10 years).
See AS 11.41.510(b) (second-degree robbery); AS 11.31.100(d)(3) (attempt); AS 11.71.020(d) (second-degree controlled substance misconduct); AS 11.46.130(c) (second-degree theft).
The superior court's findings are supported by the record, and the composite sentence it imposed for O'Bryan's three offenses is not clearly mistaken.
See State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (explaining that an appellate court applies the clearly mistaken standard of review to excessive-sentence claims). --------
We AFFIRM the judgment of the superior court.