Opinion
Court of Appeals No. A-10938 Trial Court No. 1SI-07-210 Cr No. 5808
02-22-2012
NOEL E. SEE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David M. Seid, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. David L. Brower, District Attorney, Juneau, 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 authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Sitka, David V. George, Judge.
Appearances: David M. Seid, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. David L. Brower, District Attorney, Juneau, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge.
This case involves the revocation of Noel E. See's felony probation and the imposition of a portion of his previously suspended jail time.
See, who was on probation for second-degree assault, originally received a sentence of 10 years' imprisonment with 7 years suspended (i.e., 3 years to serve). Shortly after his release from prison, See was found guilty of violating his conditions of probation because he consumed alcoholic beverages. Based on this violation, the superior court imposed 3 of the previously suspended 7 years.
The question presented in this appeal is whether the superior court abused its sentencing discretion by imposing so much of See's previously suspended jail time for conduct that was not, in and of itself, a new criminal offense.
As we explain in this opinion, See had a twenty-year history of criminal offenses, and many of these convictions were based on assaults committed against women — assaults that See committed while he was intoxicated. Because of this history of violence, and because See was apparently unable to stop drinking, the superior court was justified in concluding that See's probation violation was a serious one — an indicator that See could not be controlled on probation, and that it was necessary to isolate him from the community in order to prevent him from engaging in continued criminal behavior. We therefore uphold the superior court's sentencing decision.
Underlying facts
In May 2007, Noel E. See beat up his girlfriend. During this assault, See bit off a part of his girlfriend's eyebrow. He also bit her hands and fingers. He punched her in the face, breaking her nose and chipping one of her teeth. When the victim attempted to call the police, See tore the telephone from the wall. He held her down on the bed, covering her mouth and nose with his hand, and told her that he was going to kill her if she did not stay quiet. The victim's hand was broken sometime during this assault.
At the time of these events, See was on bail release from a pending charge of fourth-degree assault which likewise involved an assault on his girlfriend.
The State charged See with first-degree assault, interfering with a report of domestic violence, violating the conditions of his release, and several lesser assault charges. See's case was ultimately resolved by a plea agreement. Under the terms of this agreement, See pleaded guilty to one count of second-degree assault, and the State dismissed the remaining charges. The parties also bargained for a specific sentence: 10 years' imprisonment with 7 years suspended (i.e., 3 years to serve).
See was a first felony offender, and he normally would have been subject to a considerably more lenient presumptive sentencing range: 1 to 3 years' imprisonment. See AS 12.55.125(d)(1). However, See had a lengthy criminal record which spanned twenty years. This record included repeated instances of assaultive behavior (an aggravating factor under AS 12.55.155(c)(8)), and it also included more than five prior convictions for class A misdemeanors (an aggravating factor under AS 12.55.155(c)(31)). Based on these circumstances, the parties agreed that the superior court would be justified in imposing a sentence that substantially exceeded the applicable presumptive sentencing range.
In March 2008, See was sentenced in accordance with this plea agreement, and he received the agreed-upon sentence. One of See's conditions of probation was that he refrain from consuming alcoholic beverages.
See was released from prison (on probation and parole) on May 8, 2009. On January 8, 2010, See's probation officer (aided by police officers) searched See's residence and found marijuana and six empty bottles of prescription pain medication. According to the probation officer's count, See had taken 190 pain pills during the preceding four weeks. The pain medication had been prescribed by three different doctors, and the prescriptions had been filled at two different pharmacies.
Three weeks later, on January 26, 2010, See appeared in front of a member of the Parole Board for his preliminary hearing on charges of violating his parole. On February 3, 2010, this member of the Parole Board released See to the custody of a Community Residential Center pending his full hearing. Five days later, on February 8th, See walked away from the CRC. He was arrested on April 16th, and he served the rest of his 3-year sentence in prison.
See was released from prison in late October 2010, and he reported to his probation officer for the first time on October 25th. Ten days later, on November 4th, See again reported to his probation officer. This time, he smelled of an alcoholic beverage.
The probation officer administered a breath test to See, and the breath test showed that See had a blood alcohol level of .08 percent. See was then taken into custody, and the Department of Corrections petitioned the superior court to revoke his probation.
The superior court's sentencing decision
The superior court received three widely differing sentencing recommendations from the probation officer, the prosecutor, and the defense attorney. The prosecutor argued that See could not be rehabilitated, and that the court should impose 3 of the previously suspended 7 years' imprisonment. The probation officer thought that the court should impose 6 months to serve, followed by court-ordered residence of up to 6 months in a community residential center. The defense attorney argued that the appropriate sentence was 60 days in jail.
Superior Court Judge David V. George ultimately agreed with the prosecutor that there was little prospect for See's rehabilitation, and that a sentence of 3 years was appropriate.
Judge George noted that See had been convicted of nearly three dozen criminal offenses during the preceding two decades. Of these criminal convictions, ten were for assault, and six of these assaults involved domestic violence. Judge George also noted that See had been found guilty of violating probation 24 times.
At the time of See's original sentencing in 2008, his criminal record consisted of the following: 2006 — DUI and resisting arrest; 2004 — fourth-degree assault; 2002 — assault and disorderly conduct; 2001 — assault, disorderly conduct, and driving without a valid license; 2000 — two separate convictions for misdemeanor assault, plus criminal mischief and resisting arrest; 1999 — unlawful contact in violation of a restraining order; 1998 — indecent exposure; 1997 — violating the terms of a restraining order; 1996 — two separate convictions for assault; 1995 — resisting arrest and damaging property; 1994 — assault and disorderly conduct; 1993 — disorderly conduct and damaging property; 1992 — DWI and disorderly conduct; 1991 — two separate convictions for assault; 1990 — possession of drugs; 1989 — minor in possession of alcohol; 1988 — driving while license suspended, minor in possession of alcohol, and damaging property; 1987 — negligent driving.
In a pre-trial pleading filed in See's felony assault case (before it was resolved by the plea agreement), the State outlined See's prior acts of domestic violence. In 2004, See was prosecuted for hitting a woman in the head with a frying pan. In 1999, See was prosecuted for assaulting a girlfriend by slapping her in the face and striking her on the head. In 2001, See was prosecuted for placing this same girlfriend in fear of imminent injury by breaking a locked door to gain access to her, and by telling her that he would beat her up. Also in 2001, See was prosecuted for striking this girlfriend in the face. In 2002, See was prosecuted for assaulting another girlfriend by slapping her in the face and biting her thumb. When this woman attempted to call for help, See told her to hang up the phone or he would kill her. And in 1996, See was prosecuted for hitting another girlfriend in the face and biting and pinching her breasts and nipples, and for threatening to kill her.
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Based on this history, Judge George concluded that it was no longer reasonable to rely on the hope that See might be rehabilitated through continued probation and therapeutic programs:
The Court: I appreciate that you [and your attorney] hope that your rehabilitation would be [furthered] if you served a short period of time [in prison] and [then were
released] to JAMHI [the Juneau Alliance for Mental Health, Incorporated]. But, quite frankly, I don't accept that. At some point, past behavior has to be an indication of what's going to [happen going] forward. And with regard to your rehabilitation, I find that there is a very low probability that your rehabilitation on probation would be successful ... . I am always hopeful that you could turn that around, but I think it — to adopt a realistic approach, I would have to say that your rehabilitation is probably at the bottom of the factors which I think are important in viewing the Chaney [sentencing] criteria. ... [B]ased upon your record, I don't know that there's much ... that I could do to deter you from committing offenses, other than to just have you be in jail. You have not learned from many, many opportunities, you have not learned from many, many days and years in jail. You continue to do the same thing that you have done before. There was talk about how well you have done lately. I don't quite frankly see it that way. You were conditionally released as probation on May 8th of '09 — and between May 8th, '09 and November 4th of 2010, because of probation violations, you were inside [prison for] seven months. In other words, you were out on the street only eleven months, and during the eleven months that you were out on the street, you had an incident where you were abusing pain pills, you failed to report, [and] you were caught drinking. When you were placed in the CRC [community residential center], you just walked away from the CRC. I would say that your recent exhibition while on parole has only confirmed my skepticism about your success on future probation.
Judge George then declared that he believed See was among the worst offenders for sentencing purposes, and that a 3-year sentence was appropriate because it was necessary to isolate See to prevent further criminal behavior:
The Court: I think that, on balance, you do [represent] the worst [type of] offender. Your prior convictions are numerous, ... they are repetitive, and they are repetitively violent. You are 40 [years old]. I think criminality is ingrained in your system, and ... disregard for your obligations under the law. ...
You have a longstanding alcohol problem ... , and no matter how many times you've been put in jail for drinking, you continue to drink. And when you drink, you are especially dangerous ... , as verified by your past conduct. ... You have exhibited a continuing course of conduct which is antisocial. You are a clear danger [to others]. ...
I believe that the State is right ... in [its] recommendations ... , and I will find that you are a worst offender. Of the 7 years that were suspended [in your original sentence], I will impose 3 years to serve.
See's arguments on appeal, and our evaluation of the superior court's sentencing decision
On appeal, See argues that Judge George was clearly mistaken in imposing so much of the previously suspended jail time. See points to his probation officer's favorable evaluation of his prospects for rehabilitation if he participated in treatment programs. See also relies on the testimony of an expert witness — George Wood, the case management supervisor at the Juneau Alliance for Mental Health — who described See's underlying mental health problems, and who expressed optimism about See's potential for rehabilitation if See enrolled in in-patient treatment and started taking Naltrexone (a drug designed to inhibit a person's consumption of alcoholic beverages).
See's arguments hinge on viewing the situation in the light most favorable to him. But a sentencing judge is not bound by the parties' characterizations of the underlying causes of the defendant's conduct, nor by the parties' characterizations of the defendant's amenability to treatment and prospects for rehabilitation. Rather, the sentencing judge has the authority to independently determine the weight and priority to be accorded the various sentencing goals, given the particular facts of the defendant's case. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); Ting v. Anchorage, 929 P.2d 673, 675 (Alaska App. 1997).
Moreover, our duty (as an appellate court) is to affirm the sentencing judge's decision unless we are convinced that it is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Given See's extensive criminal history, especially his history of violence against women, and the fact that See's longstanding problem with alcohol appears to be integrally related to his criminal behavior, Judge George could reasonably conclude that See's current violation of his probation — his return to drinking — was an act that seriously undercut any hope of See's rehabilitation, and that the sentencing goal of isolation had to be the primary factor in determining See's sentence.
For these reasons, we conclude that Judge George was not clearly mistaken when he decided to impose 3 of the previously suspended 7 years of imprisonment. The superior court's sentencing decision is therefore AFFIRMED.