Opinion
Court of Appeals No. A-11551 Trial Court No. 3KO-08-34 CR No. 6030
02-26-2014
TEDDY LOU VONSCHEELE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Ariel Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Michael C. Geraghty, 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, Third Judicial District, Palmer, Beverly Cutler, Judge.
Appearances: Ariel Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Melissa Wininger-Howard, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge HANLEY.
In 2008, Teddy Lou Vonscheele pleaded guilty to assault in the third degree and, pursuant to a plea agreement, he was sentenced to 42 months in prison with 39 months suspended. Following his release, Vonscheele violated the conditions of his probation twice and the sentencing court imposed some of his suspended jail time.
After Vonscheele violated his probation a third time, he asked the sentencing judge to terminate his probation and sentence him to an active (i.e., unsuspended) term of imprisonment. In response, the sentencing judge imposed all of Vonscheele's remaining suspended time — 36 months to serve.
Vonscheele appeals, arguing that the superior court erred by automatically imposing all of his suspended time because he rejected probation. We agree that the sentencing court's comments suggest that the court erroneously concluded that it was required to impose all of Vonscheele's suspended time when he rejected probation because Vonscheele's sentence had been imposed as part of a plea agreement. We therefore remand the case to the superior court and direct the court to reconsider Vonscheele's probation revocation sentence.
Why we conclude that the sentencing judge applied the wrong legal standard in sentencing Vonscheele
Under Alaska law, a defendant who concludes that probation is too onerous has the right to terminate probation and ask the sentencing court to impose an active term of imprisonment. When a defendant exercises this right to reject probation, the sentencing court may not automatically sentence the defendant to all of his remaining suspended time; rather, the judge must determine an appropriate sentence by considering the totality of the circumstances in light of the Chaney sentencing criteria.
Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007) (citing Brown v. State, 559 P.2d 107, 111 n.13 (Alaska 1977)).
Oyoumick v. State, 185 P.3d 771, 774 (Alaska App. 2008).
This same rule applies even when the defendant was initially sentenced under a plea agreement that called for a specific amount of suspended jail time. Thus, in State v. Henry, this Court rejected the State's claim that a defendant who enters a plea bargain for a specific amount of suspended jail time necessarily relinquishes the right to later terminate his probation and ask the sentencing court to impose a lesser active sentence of imprisonment based on the Chaney sentencing criteria.
240 P.3d 846 (Alaska App. 2010).
Id. at 849.
Vonscheele argues that the sentencing court violated this rule by concluding that it was required to impose all of his suspended jail time after he rejected probation in order to enforce his original sentencing agreement with the State. After reviewing the sentencing record, we agree. While the sentencing court addressed some of the Chaney criteria, the court's comments suggest that it ultimately imposed all 36 months of Vonscheele's suspended jail time because, in the court's view, Vonscheele had agreed to that outcome when he originally entered his plea. We accordingly remand this case to the superior court, and direct the court to determine an appropriate disposition based on the totality of the circumstances in light of the Chaney criteria.
We note that Vonscheele's assault conviction and probation violations have been resolved by several different superior court judges. Under Criminal Rule 25(c) and our decision in Trenton v. State, Vonscheele is entitled on remand to have his original sentencing judge determine the appropriate disposition for his probation violation, unless he waives this right or the sentencing judge is unavailable.
789 P.2d 178 (Alaska App. 1990).
--------
Conclusion
We REMAND Vonscheele's case for resentencing in accordance with this decision.