Opinion
Court of Appeals No. A-9766.
April 11, 2007.
Appeal from the Superior Court, Third Judicial District, Homer, Harold M. Brown, Judge, Trial Court No. 3AN-03-778 Cr.
Daniel L. Aaronson, Kenai, for the Appellant. Jean E. Seaton, Assistant District Attorney, June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
James Sprague was convicted, based upon his plea of no contest, of stalking in the first degree. Superior Court Judge Harold M. Brown sentenced Sprague, a first felony offender for purposes of presumptive sentencing, to an aggravated presumptive sentence of 5 years with 2 years suspended. Judge Brown placed Sprague on probation for a period of 7 years from the date of his release from incarceration. Sprague appeals, arguing that the sentence is excessive. We affirm.
AS 11.41.260(a)(1) (2).
Kristina Sprague obtained a domestic violence restraining order against her husband, James Sprague, after he had engaged in a pattern of domestic violence against her and her son. But Sprague repeatedly violated the domestic violence restraining order. The State charged Sprague with several counts of violating a domestic violence restraining order and Sprague entered pleas of no contest to four of the charges. At his sentencing, Sprague assured the sentencing judge that he would leave his wife alone and would move to Arizona after he was released from prison.
But when Sprague was released, he immediately began to contact his wife, violating a restraining order which she had against him. In response, Kristina Sprague contacted the Alaska State Troopers. Sprague continued to contact his wife by telephone, begging to see her. The troopers attempted to contact Sprague, but were unsuccessful. Finally, Kristina Sprague called the troopers and told them that Sprague would be heading to her house. The troopers were able to apprehend Sprague in the woods behind Kristina Sprague's home.
The State charged Sprague with several counts of violating a restraining order and one count of stalking in the first degree. Ultimately, Sprague entered a plea to the stalking charge.
Stalking in the first degree is a class C felony. The maximum sentence for a class C felony is 5 years of imprisonment. Sprague was a first felony offender for purposes of presumptive sentencing. He therefore faced a presumptive term of 0 to 2
AS 11.41.260(c).
AS 12.55.125(e).
years of imprisonment, but the sentencing court was authorized to impose a sentence of up to 5 years of imprisonment if it found aggravating factors. Judge Brown found three aggravating factors: that the offense was a felony committed against a spouse; that Sprague had a criminal history of repeated instances of similar offenses; and that the victim of the offense was a person who had provided testimony or evidence which related to a prior offense committed by the defendant. Sprague stipulated to the existence of these aggravating factors. Based on the aggravating factors, Judge Brown sentenced Sprague to 5 years of imprisonment with 2 years suspended and placed him on probation for a period of 7 years following his release from confinement.
AS 12.55.125(e)(1).
AS 12.55.155(a)(1).
AS 12.55.155(c)(18)(A), (c)(21), (c)(28), respectively.
Sprague argues that his sentence is excessive. He points out that he never physically harmed his wife. But Judge Brown expressly conceded that Sprague did no physical harm. He nevertheless found that Sprague's case was "probably the most serious case of stalking that did not actually involve a physical assault that I've had come before me since I was a judge." Judge Brown concluded that Sprague had engaged in a calculated "campaign to terrorize [Kristina] Sprague" and that he had succeeded. He pointed out that Sprague had carefully carried out his plan so that he was able to avoid capture by the police for a considerable amount of time.
Judge Brown also considered Sprague's prior record, which includes several prior misdemeanor convictions for similar offenses. In particular, Judge Brown placed great weight on the testimony of a former wife of Sprague's, who testified about Sprague's similar behavior towards her. Judge Brown found that, based upon this prior record, the likelihood of Sprague's rehabilitation was minimal.
We conclude that Judge Brown justified the sentence that he imposed. The record supports Judge Brown's conclusion that Sprague committed a serious offense and that this offense was part of a persistent pattern. We conclude that the sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
The sentence is AFFIRMED.