Opinion
Court of Appeals No. A-12134 No. 6323
05-04-2016
LLOYD WARREN PENNEBAKER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nicole L. Sperbeck, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jack R. McKenna, Assistant District Attorney, Anchorage, 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. 3AN-01-8979 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card and Philip R. Volland, Judges. Appearances: Nicole L. Sperbeck, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jack R. McKenna, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Lloyd Warren Pennebaker appeals the sentence he received when the superior court revoked his probation from three felony convictions: first-degree burglary, second-degree sexual abuse of a minor, and third-degree misconduct involving a controlled substance.
AS 11.46.300(a)(1), former AS 11.41.436(a)(1) (2004), former AS 11.71.030(a)(2) (2004), respectively.
These three charges were based on allegations that Pennebaker impersonated a teenage girl on Internet chat sites. Using this female persona, Pennebaker introduced three young girls (ages thirteen and fourteen) to a male "friend" — himself. Pennebaker subsequently engaged in sexual intercourse with each of these three girls, and he took nude photographs of one of them. Pennebaker was arrested after he surreptitiously entered the house of an eighteen-year-old girl at night, after similarly deceptive conduct.
Pennebaker pleaded no contest to these felony charges in 2002. For the burglary conviction and the sexual abuse of a minor conviction, Superior Court Judge Larry D. Card imposed the same sentence (5 years' imprisonment with 2½ years suspended — i.e., 2½ years to serve), and the judge ran these two sentences consecutively, for a total of 5 years to serve. For the drug charge, Judge Card imposed 2 years with 1 year suspended (i.e., 1 year to serve). The judge made the 1-year term of active imprisonment concurrent with Pennebaker's burglary and sexual abuse sentences, but he made the 1 year of suspended time consecutive.
The result was a composite sentence of 5 years to serve, with an additional 6 years suspended.
Pennebaker was released from prison in March 2005. Just over a year later, he was charged with two counts of attempted possession of child pornography, and the State petitioned the court to revoke his probation in this case.
Pennebaker's case was assigned to Superior Court Judge Philip R. Volland. Pursuant to a plea agreement, Judge Volland sentenced Pennebaker to serve 2 years in prison for the child pornography conviction, but he imposed no additional time for the probation violation.
In May 2013, the State filed a second petition to revoke Pennebaker's probation in this case. Pennebaker's probation officer had discovered that Pennebaker was accessing websites prohibited by his conditions of probation. Judge Volland found the allegation to be proved, but again Pennebaker was not ordered to serve any of his suspended jail time.
It turned out that, only one week after this second probation revocation hearing, Pennebaker sexually exploited a young woman by using a fraudulent Internet scheme. Pennebaker placed an ad on Craigslist, posing as a photographer who was seeking models on behalf of a Seattle-based modeling agency (with which he was not actually affiliated). A twenty-five-year-old woman, D.C., responded to Pennebaker's false modeling solicitation, and Pennebaker arranged a photo shoot in his apartment. Pennebaker photographed D.C. in her clothes, and then he asked her to pose in increasing states of undress. When Pennebaker touched her bare breasts, D.C. ended the photography session, and she later contacted the police.
Based on these events, the State filed its third petition to revoke Pennebaker's probation. At the third revocation hearing, Judge Volland noted that the prior probation proceedings "had [had] no effect whatsoever on Mr. Pennebaker" — because, "in a week's time, he was trolling for new victims on the Internet using the same pattern of manipulation and deception and dual identity that was characteristic of his offenses in 2001." Judge Volland characterized Pennebaker as a manipulative predator. Noting that he had treated Pennebaker leniently at the prior two probation revocations, the judge declared that he was "not going to make that mistake again."
Judge Volland concluded that isolation and individual deterrence were now the most important sentencing criteria in Pennebaker's case, given his continuing criminal behavior. The judge imposed 3½ years of Pennebaker's suspended jail time.
Pennebaker now appeals his sentence.
Pennebaker's argument that his original sentence violated the Jackson benchmark of 1 to 4 years to serve for typical first felony offenders convicted of a typical or moderately aggravated class B felony
Because Pennebaker's underlying crime was committed so long ago, his sentencing was (and is) governed by the pre-2005 version of Alaska's presumptive sentencing laws, and by the case law that developed around those former statutes.
At the time of Pennebaker's original sentencing in 2002, first felony offenders convicted of class B felonies did not face a presumptive term or a presumptive range of imprisonment. A sentencing court had the potential authority to sentence these defendants to any term of imprisonment up to the maximum sentence for class B felonies — 10 years to serve.
However, in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), this Court held that a first felony offender convicted of a class B or class C felony should not receive a term of active imprisonment greater than the presumptive term that would apply to a second felony offender convicted of the same offense, unless the sentencing court found aggravating factors or extraordinary circumstances that would justify referring the defendant's case to the statewide three-judge sentencing panel (if the defendant had been subject to presumptive sentencing). This Austin rule was later codified by the legislature in former AS 12.55.125(k)(2).
See Dayton v. State, 120 P.3d 1073, 1080 (Alaska App. 2005).
As a corollary to the Austin rule, this Court established a benchmark sentencing range of 1 to 4 years to serve for a "typical" first felony offender whose class B felony was "a typical or moderately aggravated offense". State v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989). We stated in Jackson that a sentence of up to 6 years to serve (which, at that time, was the presumptive term that applied to third felony offenders convicted of a class B felony) would be justified only if the first felony offender's case was "exceptionally aggravated" — a case involving "significant" statutory aggravating factors or "other extraordinarily aggravated circumstances". Id. at 327.
In the present appeal, Pennebaker contends that his original sentences for first-degree burglary and second-degree sexual abuse of a minor (i.e., the sentences imposed by Judge Card in 2002) violated this Jackson benchmark. For each of these class B felonies, Pennebaker received a sentence of 5 years with 2½ suspended — for a total of 5 years to serve. Pennebaker argues that Judge Card did not make the finding required by Jackson — a finding of significant aggravating factors or other extraordinarily aggavated circumstances — before the judge imposed a composite sentence of more than 4 years to serve.
In its brief to this Court, the State does not respond to Pennebaker's argument that his original sentence violated the Jackson benchmark range.
Nevertheless, we conclude that Pennebaker was not entitled to wait thirteen years to raise a Jackson challenge to the sentence he received in 2002.
The normal deadline for filing an appeal is 30 days after the distribution of the judgement that is being challenged. It is true that, under Alaska Criminal Rule 35(a), a defendant may attack an illegal sentence "at any time". But even assuming that Judge Card violated the procedural requirements of Jackson, this would not make Pennebaker's 2002 sentences "illegal" for purposes of Criminal Rule 35(a).
Alaska Appellate Rules 204(a)(1) (felony merit appeals) and 215(c) (sentence appeals).
As this Court held in Bishop v. Anchorage, Criminal Rule 35(a) employs the term "illegal sentence" in a narrow sense; this term does not refer to all sentences that might be attacked for procedural irregularity, but only to sentences that "the judgment of conviction did not authorize." 685 P.2d 103, 105 (Alaska App. 1984). Basically, "illegal sentence" refers to a sentence that is not authorized by the applicable sentencing statute, or a sentence contained in a written judgement that does not conform to the judge's oral pronouncement of sentence, or a sentence that is ambiguous with respect to the time and manner in which it is to be served. Ibid.
Because a sentence imposed in violation of the Jackson benchmarks is not an "illegal sentence", Pennebaker can not take advantage of the open-ended attacks on illegal sentences allowed by Criminal Rule 35(a). Rather, he is bound by the normal time limits for seeking appellate review. Thus, his attack on his original sentences is untimely — more than a decade late.
Pennebaker advances no explanation for his failure to raise this issue in a timely fashion.
Nor does Pennebaker's case present an instance of manifest unfairness. Pennebaker sexually abused three different girls, but he was allowed to plead guilty to a single consolidated count of sexual abuse. And Pennebaker's conviction for residential burglary arose from a completely separate incident involving yet another young woman. Given these circumstances, Judge Card had obvious reasons for imposing a composite sentence that exceeded the Jackson benchmark of 1 to 4 years to serve.
For these reasons, we reject Pennebaker's claim that his original sentence constituted an unjustified departure from the Jackson benchmark range.
Pennebaker's claim that Judge Volland's decision to impose 3½ years of Pennebaker's previously suspended jail time resulted in an excessive sentence
As we explained earlier in this opinion, Pennebaker was found to be in violation of his probation three different times. Judge Volland was the sentencing judge on each occasion. The first two times, Judge Volland did not impose any of Pennebaker's suspended term of imprisonment; he simply returned Pennebaker to probation. At the third revocation, however, Judge Volland imposed 3½ years of Pennebaker's suspended time — thus bringing his composite sentence to 8½ years to serve.
Pennebaker argues that this probation revocation sentence is excessive. According to Pennebaker, Judge Volland ignored his prospects for rehabilitation and gave too much weight to the sentencing goals of isolating Pennebaker and deterring him from future criminal activity.
When a judge revokes a defendant's probation and decides whether to impose some or all of a previously suspended sentence, the judge must evaluate the totality of the circumstances — the defendant's original offense, the defendant's background, and the defendant's conduct since the time of the original sentencing — in light of the sentencing criteria originally announced in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and now codified in AS 12.55.005.
See DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997) (vacating a sentence imposed for a probation revocation when the judge failed to explain the sentence in terms of the Chaney criteria).
And because Pennebaker's case is governed by the pre-2005 version of the presumptive sentencing statutes, before Judge Volland imposed a composite sentence of 8½ years to serve, the judge was required to consider whether the overall circumstances of Pennebaker's case (his background, the facts of his original offenses, and his conduct while on probation) demonstrated that Pennebaker's case was more serious than that of a typical third felony offender convicted of the same offense (who would have faced a presumptive term of 6 years under the pre-2005 statutes).
See Ingram v. State, 703 P.2d 415, 435 (Alaska App. 1985). See also Oyoumick v. State, 185 P.3d 771, 773 (Alaska App. 2008); Chrisman v. State, 789 P.2d 370, 371 (Alaska App. 1990); Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986).
In Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986), this Court clarified that, under the pre-2005 law, no particular aggravating factor need be proved in order to justify the imposition of a probation revocation sentence more severe than the applicable presumptive term for a repeat felony offender. Rather, we declared that if a defendant's probation violations established that the defendant had unusually poor prospects for rehabilitation, this fact could be deemed an extraordinary circumstance justifying the imposition of a probation revocation sentence in excess of the normal Austin ceiling. 725 P.2d at 724.
See also Oyoumick v. State, 185 P.3d 771, 773 (Alaska App. 2008); Kriner v. State, 798 P.2d 359, 361 (Alaska App.1990).
In his sentencing remarks at the third probation revocation, Judge Volland acknowledged his obligation to revisit the Chaney sentencing criteria. He noted that Pennebaker's sentences for the first and second probation revocations had emphasized the goal of Pennebaker's rehabilitation — because, both times, Pennebaker was simply returned to probation. But by the third probation revocation proceeding, Pennebaker's continuing and serious violations of probation had convinced Judge Volland that Pennebaker was not amenable to probationary supervision. Judge Volland characterized Pennebaker as a predator, and he concluded that Pennebaker was in denial regarding his criminal proclivities.
We have examined the record, and we conclude that it supports Judge Volland's analysis — in particular, his decision to emphasize the sentencing goals of isolation and individual deterrence. We therefore conclude that Judge Volland's decision to impose 3½ years of Pennebaker's suspended time — for a composite sentence of 8½ years to serve — is not clearly mistaken.
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). --------
Conclusion
The judgement of the superior court is AFFIRMED.