Opinion
Court of Appeals No. A-10993 Court of Appeals No. A-11033 No. 6680
08-15-2018
DIEU VAN LE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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 Nos. 3AN-08-1969 CR, 3AN-04-10358 CR, 3AN-05-3904 CR, 3AN-05-9172 CR, & 3AN-06-11047 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
In our previous decision in this case, Le v. State, unpublished, 2015 WL 4387489 (Alaska App. 2015), we affirmed Dieu Van Le's convictions for scheme to defraud and two counts of second-degree theft (for stealing checkbooks from two different people, so that Le could use these stolen checks to conduct his scheme to defraud).
However, we concluded that Le's other related convictions (seventeen counts of forgery, plus one count of theft of property valued at $500 or more) were simply components of his scheme to defraud. We held that Le should not have received separate convictions and sentences for these other crimes; rather, the guilty verdicts on these crimes should have merged into Le's scheme to defraud conviction.
We therefore directed the superior court to amend Le's judgement and to re-sentence Le.
Le, 2015 WL 4387489 at *9-11.
Le originally received a composite sentence of 15 years to serve for his scheme to defraud plus his forgeries and thefts. In addition, because Le was on probation from several earlier felony convictions when he engaged in the scheme to defraud, the superior court revoked Le's probation from these prior felonies and imposed the balance of his remaining suspended jail time — a total of 7 years. Under AS 12.55.127(a), these probation revocation sentences had to be imposed consecutively to Le's sentence for his current offenses.
Thus, Le's original composite sentence was 22 years to serve.
Le, 2015 WL 4387489 at
When the superior court re-sentenced Le, the court imposed a sentence of 6 years to serve for the scheme to defraud. In addition, the superior court imposed a 2-year sentence for each of Le's two counts of second-degree theft (i.e., the thefts of the two checkbooks). Thus, the superior court sentenced Le to a composite sentence of 10 years to serve for his current crimes. And with respect to Le's probation from his prior felony cases, the superior court again imposed all 7 years of Le's remaining suspended jail time in those cases.
Thus, Le's new composite sentence is 17 years to serve.
Le appeals this sentence, contending that it is excessive. Le notes that his 17-year composite sentence is substantially longer than sentences this Court has previously reviewed for the crime of scheme to defraud or for large-scale theft. But as the superior court explained when it imposed Le's sentence, Le's criminal record over the preceding 15 years showed that he had engaged "in a continuing pattern of drug-seeking behavior, ... defrauding [and] thieving" — "intentionally deceiv[ing] vulnerable and often elderly members of our community into cashing [worthless] checks for him."
See, e.g., Byford v. State, 352 P.3d 898 (Alaska App. 2015), Hall v. State, 145 P.3d 605 (Alaska App. 2006), Bonham v. State, unpublished, 2004 WL 1126305 (Alaska App. 2004), and Buckwalter v. State, 23 P.3d 81 (Alaska App. 2001).
Le's current offenses were simply the latest in a long history of similar conduct. Le committed his current offenses in 2008. During the 15 years before that, Le was repeatedly convicted of offenses that were almost identical to his current crimes: he used stolen or forged checks to conduct schemes to defraud that targeted the elderly and the mentally or emotionally handicapped.
The sentencing court declared that Le's offenses — both his current offenses and his prior felonies — demonstrated that he had an "uncanny ability" to engage in confidence schemes to defraud the elderly. The court found that Le, acting from "the worst predatory instincts", had engaged in a scheme to defraud that took advantage of "the very best instincts of a vulnerable elderly population." And the court endorsed the views of the probation officer who prepared the pre-sentence report for Le's prior felony in 2006: Le was a "worst offender" who posed "a serious financial threat to [the] citizens of the community" — a "dangerous, drug-addicted, and free-wheeling con artist who ... has not been deterred."
Based on Le's record of fraud and recidivism, the superior court concluded that the primary sentencing goals in Le's case were isolation to prevent Le from inflicting further harm to the public, and community condemnation of Le's crimes. The judge concluded that rehabilitation was no longer a viable sentencing goal for Le.
We have independently reviewed the record, and we conclude that it supports the superior court's findings. And given those findings, we conclude that a composite sentence of 17 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).
Le presents the additional argument that even if the superior court was justified in revoking Le's probation, the court should not have imposed the remaining 2 years of suspended imprisonment for Le's prior drug offense, fourth-degree controlled substance misconduct (possession of cocaine), in file number 3AN-04-10358 CR.
Le notes that, even though possession of cocaine was a class C felony when he committed the crime in 2004, the legislature downgraded this offense to a class A misdemeanor in 2016. Le argues that the superior court should not have imposed any of his suspended jail time, because he had already served a far greater sentence than he would have received if he had committed this crime today.
See SLA 2016, ch. 36, §§ 47, 179.
The fact that the legislature has reduced the punishment for possession of cocaine does not invalidate Le's felony-level sentence for committing this crime in 2004. But when a judge sentences a defendant in this situation, the judge can consider the fact that the legislature now thinks that a lesser punishment is appropriate.
See AS01.10.100(a); Chinuhuk v. State, 413 P.3d 1215, 1217-18 (Alaska App. 2018). --------
Here, the sentencing judge expressly considered Le's argument that he should receive no additional time to serve for his drug offense, given the legislature's later decision to reclassify the offense as a misdemeanor. But the sentencing judge concluded that the other aspects of Le's case outweighed this consideration. We conclude that the judge's decision was not clearly mistaken.
In sum, the superior court's sentencing decision is AFFIRMED.