Opinion
Court of Appeals No. A-10999 Trial Court No. 1JU-06-639 CR No. 5826
04-11-2012
GREGORY L. OSBORNE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Amy Williams, Assistant Attorney General, Criminal Division, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Amy Williams, Assistant Attorney General, Criminal Division, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
This is a sentence appeal. Following the revocation of Gregory L. Osborne's probation, Superior Court Judge Philip M. Pallenberg imposed the remainder of Osborne's previously suspended sentence, five years and four months of imprisonment. Osborne appeals. We affirm.
In 2006, Gregory L. Osborne, driving under the influence, struck three fifteen-year-old high school students who were walking along the roadway in Juneau. All three students suffered serious physical injury. As a result of this incident, Osborne was convicted of three counts of assault in the second degree (for recklessly causing serious physical injury to each of the three students) and one count of driving under the influence.
Osborne v. State, 182 P.3d 1155, 1156-57 (Alaska App. 2008).
Id. at 1157.
Assault in the second degree is a class B felony with a maximum sentence of ten years of imprisonment. A first felony offender faces a presumptive range of imprisonment of one to three years. A second felony offender faces a presumptive range of four to seven years of imprisonment.
AS 11.41.210(b), AS 12.55.125(d).
AS 12.55.125(d)(1).
AS 12.55.125(d)(3).
Superior Court Judge Larry R. Weeks sentenced Osborne. Although Osborne had eight prior misdemeanor convictions, including a prior conviction for driving under the influence, he was a first felony offender for purposes of presumptive sentencing. In sentencing Osborne, Judge Weeks concluded that Osborne posed "a substantial danger" to others because he disregarded social rules. Judge Weeks imposed a composite sentence of nine years of imprisonment with all but two and one-half years suspended. He reasoned that he would impose a long term of suspended imprisonment, in addition to the two and one-half years of time to serve, to give Osborne incentive to change his behavior. Judge Weeks specifically warned Osborne that he faced a lengthy term of imprisonment if he did not change his behavior.
Osborne, 182 P.3d at 1157.
Id.
Id.
Id.
Osborne appealed his sentence to this court, arguing that his sentence was excessive. We affirmed the sentence. We pointed out that:
Id. at 1159.
The evidence at Osborne's trial showed that he had been speeding and driving erratically before he struck his three victims. Osborne's breath test result was nearly twice the statutory limit of .08 percent specified [by statute]. Moreover, Osborne caused severe injuries to the three victims when he ran them down with his pickup.We remanded, however, because of the way Judge Weeks structured his sentence. Judge Weeks imposed only ten months of imprisonment on each conviction for assault in the second degree. Because the presumptive range was one to three years and there were no mitigating factors, Judge Weeks was required by statute to impose a minimum of one year of imprisonment for each offense. We pointed out that "[b]ecause it is possible to correct Osborne's sentence without increasing it, the superior court is legally obliged to do so."
Id. at 1158-59.
Id. at 1159 (footnotes omitted).
On remand, Judge Pallenberg sentenced Osborne to eight and one-half years with all but two and one-half years suspended.
Osborne was released to probation and parole supervision on May 22, 2008. Osborne's probation officer filed a petition to revoke Osborne's probation on December 3, 2009. Osborne ultimately admitted to five violations of his probation, including committing the crime of assault in the fourth degree. Osborne was convicted of assault in the fourth degree and sentenced to four months of imprisonment. In addition, based on the violations of his probation, Osborne was sentenced to eight months of the previously suspended time.
On December 16, 2010, Osborne's probation officer filed another petition to revoke Osborne's probation. This petition was based upon Osborne's conduct of contacting inmates in the Juneau correctional facility by telephone and arranging to leave tobacco, which was not permitted in the correctional facility, in the Juneau courthouse. The plan was for the inmate to then smuggle the tobacco into the correctional facility. Osborne was to receive payment for providing the contraband. Osborne's calls to the correctional facility were recorded. As a result, the petition to revoke probation charged that Osborne violated his probation by contacting convicted felons and by committing a criminal offense, promoting contraband in the second degree. Osborne admitted these violations.
AS 11.56.380(a)(1).
Judge Pallenberg sentenced Osborne to five years and four months of imprisonment, the remainder of Osborne's originally suspended time.
Osborne argues that the sentence Judge Pallenberg imposed is excessive. He notes that he is a first felony offender. As a first felony offender convicted of assault in the second degree, a class B felony, he faced a presumptive range of one to three years of imprisonment. A second felony offender would have faced a presumptive range of four to seven years of imprisonment. Between his original sentence and his probation revocations, Osborne was ultimately sentenced to serve eight and one-half years of imprisonment.
AS 12.55.125(d)(1).
AS 12.55.125(d)(3).
Osborne points out that in Austin v. State, we held that a first felony offender should ordinarily receive a more favorable sentence than the presumptive term for a second felony offender convicted of the same offense unless there were exceptional circumstances justifying the greater sentence. He observes that the sentence he received exceeded the presumptive range for a second felony offender convicted of a class B felony by one and one-half years.
627 P.2d 657, 657-58 (Alaska App. 1981).
But we have held that the Austin rule only applies to sentences imposed for individual offenses. When an offender has committed more than one offense, we have instead applied the rule of Farmer v. State.
See Splain v. State, 924 P.2d 435, 437 (Alaska App. 1996) (applying Farmer v. State, 746 P.2d 1300 (Alaska App. 1987)).
In Farmer, we indicated that when "an offender is convicted of multiple crimes, the presumptive term for the most serious crime remains an important benchmark — a benchmark that is not to be exceeded without good reason." Osborne argues that Judge Pallenberg needed to justify imposing a sentence greater than three years, the top of the presumptive range for a first felony offender convicted of a class B felony. He also points to authority which provides that, when a sentencing judge is determining an appropriate sentence following a probation revocation, the sentencing court is to consider the defendant's original offense as well as his conduct on probation in determining an appropriate sentence. Osborne argues that, applying this standard, the sentence that Judge Pallenberg imposed was clearly mistaken.
Farmer, 746 P.2d at 1301.
Bland v. State, 846 P.2d 815, 818 (Alaska App. 1993).
At sentencing, following the second revocation of Osborne's probation, Judge Pallenberg observed that Osborne's original offenses were extremely serious. He found Osborne had poor prospects for rehabilitation and had consistently failed on probation. He concluded that there was a high likelihood that Osborne would continue to commit criminal violations in the future, whether he was on probation or not. He concluded that it was necessary to impose the remaining five years and four months of suspended time to protect the public.
Id.
We have previously questioned whether the Farmer rule continues to apply to our post-2005 sentencing laws. But assuming Farmer does apply, we conclude that Judge Pallenberg gave good reasons for imposing the remaining five years and four months of Osborne's sentence, and that the record supports those reasons. Osborne's original offense was serious. While driving under the influence, he caused serious physical injury to three separate victims. We have previously held that, in applying Farmer, it is appropriate for the sentencing court to consider the fact that there were multiple victims of the defendant's offense. At the time of his original sentencing, Osborne had eight prior misdemeanor convictions, which included a prior conviction for driving under the influence. In spite of the seriousness of the offenses in this case, Osborne's prior record, and his conclusion that Osborne posed "a substantial danger" to others, Judge Weeks decided to impose a relatively lenient sentence with a substantial amount of suspended time to give Osborne an incentive to change his behavior. Judge Weeks specifically warned Osborne that he faced a substantial term of imprisonment if he did not change his behavior. In spite of Judge Weeks's warning, Osborne performed poorly on probation.
Kosbruk v. State, Memorandum Opinion and Judgment No. 5691 (Alaska App. Apr. 6, 2011), 2011 WL 1330805, at *3; Sherman v. State, Memorandum Opinion and Judgment No. 5177 (Alaska App. Feb. 21, 2007), 2007 WL 518627, at *2.
Splain, 924 P.2d at 437.
Osborne, 182 P.3d at 1157.
Id.
Judge Pallenberg properly considered the seriousness of Osborne's original offenses, his poor conduct on probation, and his prospects for rehabilitation in light of this record. We conclude that Judge Pallenberg's findings are supported by the record and that his findings support the sentence he imposed. The sentence was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
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The judgment of the superior court is AFFIRMED.