Opinion
Court of Appeals No. A-10054.
April 22, 2009.
Appeal from the District Court, Third Judicial District, Anchorage, J. Patrick Hanley, Judge, Trial Court No. 3AN-06-4952 Cr.
Michael H. T. Graper, Gorton, Logue, and Graper, Anchorage, and Brutus Clay Weaver, in propria persona, Anchorage, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
In July 2006, Brutus Clay Weaver pleaded no contest to eighteen counts of violating the conditions of his release in case number 3AN-06-4952 Cr. He received a composite sentence of 3,240 days' imprisonment (just short of 9 years), with all but 150 days suspended.
A little over one year later, in October 2007, the district court revoked Weaver's probation and imposed 120 days of his previously suspended jail time. This action was based on the fact that Weaver had been convicted of new criminal offenses in case numbers 3AN-07-1564 Cr and 3AN-07-3486 Cr, as well as the fact that Weaver had failed to comply with two conditions of his probation: completion of alcohol treatment through AASAP (the Anchorage Alcohol Safety Action Program), and completion of domestic violence treatment through DVIP (the Domestic Violence Intervention Program).
After the district court took this action, Weaver filed an appeal. This appeal comprises three claims, contained in two briefs — one written by Weaver's attorney, and the other filed by Weaver acting pro se.
Weaver's attorney advances one claim: that Weaver's probation revocation sentence would need to be re-examined if this Court were to reverse Weaver's convictions for the new crimes in cases 3AN-07-1564 Cr and 3AN-07-3486 Cr. This claim is now moot, because this Court has affirmed Weaver's convictions in those two cases. See Weaver v. Anchorage, Alaska App. Memorandum Opinion No. 5400 (November 12, 2008), 2008 WL 4890240.
We now turn to the claims raised by Weaver in his pro se brief.
Weaver argues that his original sentence — the composite sentence of 3,240 days' imprisonment with all but 150 days suspended — is excessive. Weaver is not entitled to pursue this claim.
This composite sentence was imposed in July 2006. Weaver did not appeal the sentence at that time, and it is too late to appeal it now. Alaska Appellate Rule 215(c) states that sentence appeals must be filed within 30 days after the distribution of the judgement, and Appellate Rule 521 forbids this Court from accepting a sentence appeal that is more than 60 days late.
Weaver also argues that when the district court revoked his probation, the court imposed an excessive amount of Weaver's previously suspended jail time. Weaver particularly relies on the Neal-Mutschler sentencing rule: the rule that a defendant should not receive a composite sentence exceeding the maximum term of imprisonment for their most serious crime unless the sentencing court finds that this sentence is needed to protect the public.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
As explained above, when the district court revoked Weaver's probation, the court imposed 120 days of the 3090 days that were previously suspended. This action brought the total of Weaver's time to serve to 270 days — more than the six-month maximum term of imprisonment for any single one of his eighteen offenses.
The Anchorage municipal offense of violating the conditions of one's release is codified in AMC 8.30.110(A). The maximum penalty for violating this provision of law is six months' imprisonment. AMC 8.30.110(B).
Weaver's Neal-Mutschler argument rests on the implicit premise that the Neal-Mutschler rule limits a sentencing court's authority when the court is revising a defendant's sentence because of probation violations. Weaver offers no authority in support of this proposition and, to our knowledge, no Alaska appellate case has addressed this issue. It is therefore not clear whether the district court was obliged to make special findings when the court imposed the additional 120 days of Weaver's sentence.
But in any event, even if the Neal-Mutschler rule applies to Weaver's situation, we conclude that this rule was satisfied. The Neal decision itself declares that, even when the sentencing court makes no express finding, the rule is satisfied if "[t]he record contains ample evidence that [the defendant] . . . presents a risk of continued criminal conduct which would seriously threaten the public safety." And for this purpose, even a non-violent offender can be classified as someone who seriously threatens the public safety if the offender has not been deterred by prior convictions and lesser jail sentences.
Neal, 628 P.2d at 21.
See State v. Graybill, 695 P.2d 725, 731 (Alaska 1985).
In Weaver's case, the district court imposed the additional 120 days of Weaver's previously suspended jail time because Weaver had been convicted of new crimes — driving under the influence and breath-test refusal in case number 3AN-07-1564 Cr, and violation of the conditions of his release in case number 3AN-07-3486 Cr — and because Weaver had failed to comply with two treatment provisions of the original judgement. The district court could properly find that these were serious violations of probation.
Moreover, Weaver has a lengthy history of flouting the law — including six prior convictions for driving under the influence (apart from the conviction in case number 3AN-07-1564 Cr), the eighteen counts of violating the conditions of his release in the present case, and approximately another twenty (non-DUI) criminal convictions.
Given these circumstances, we conclude that even if the Neal-Mutschler rule applied to Weaver's probation revocation sentencing, the record in Weaver's case provides the necessary support for the district court's decision to impose 120 days of Weaver's previously suspended jail time.
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).
The judgement of the district court is AFFIRMED.