Opinion
A-13753
03-02-2022
RANDOLPH T. WILLIAMS JR., Appellant, v. STATE OF ALASKA, Appellee.
Eric Hedland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Trial Court No. 1HA-12-00071 CR Juneau, Daniel Schally, Judge.
Eric Hedland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Randolph Williams was convicted, following a jury trial, of eight counts of possessing child pornography. At sentencing, Judge Keith B. Levy found that Williams was a third felony offender and he imposed a sentence of 17 years with 2 years suspended (15 years to serve) for each count - the minimum presumptive sentence for a third felony offender. Judge Levy also concluded that he was required to impose at least 1 day of each sentence consecutively, leading to a composite sentence of 17 years and 7 days with 2 years suspended (15 years and 7 days to serve).
AS 11.61.127(a).
AS 12.55.125(i)(4)(f); former AS 12.55.125(i)(4)(D) (pre-July 2016 version).
AS 12.55.127(c)(2)(f).
In Williams's original appeal, we held that Williams should have been sentenced as a first felony offender because his previous two felony convictions were non-sexual felonies for which he was released from supervision over ten years prior to his criminal conduct in this case. We also concluded that the consecutive sentencing requirement did not apply because it was enacted by the legislature after Williams committed his crimes. We therefore remanded for resentencing.
Williams v. State, 418 P.3d 870, 872-75 (Alaska App. 2018).
Id. at 882.
Id.
Judge Daniel Schally presided over Williams's resentencing hearing because Judge Levy had retired. As a first felony offender, Williams faced a presumptive range of 2 to 12 years for each count, but Judge Schally had authority to impose a sentence of up to 99 years because of the statutory aggravating factor that Williams had five or more class A misdemeanor convictions. Judge Schally sentenced Williams to 14 years with 7 years suspended (7 years to serve) for each count, with all sentences to run concurrently.
AS 12.55.125(i)(4)(A); AS 12.55.155(c)(31).
Williams now appeals his new sentence, raising two main arguments. First, he points out that on remand Judge Schally increased his suspended time from 2 years to 7 years. He argues that this constitutes an increase in his sentence in violation of double jeopardy, due process, and the law of the case doctrine, and that Judge Schally should have deferred to Judge Levy's decision about how much suspended time to impose.
See Hester v. State, 797 P.2d 690 (Alaska App. 1990); Shagloak v. State, 597 P.2d 142 (Alaska 1979); Barber v. State, Dep 't of Corr., 393 P.3d 412 (Alaska 2017).
We disagree. When a defendant's overall sentence is not increased, an increase in suspended time necessarily results in a corresponding decrease in active time to serve. And because active time is a more serious penalty than suspended time, an increase in suspended time that results in a corresponding decrease in active time reflects a reduction of the defendant's sentence, not, as Williams claims, an increase. Here, Williams's overall sentence was not increased on remand. And by increasing Williams's suspended time, Judge Schally substantially reduced Williams's active time to serve. We therefore reject Williams's claim that his sentence was increased on remand and his corresponding claims of error.
See Leuch v. State, 633 P.2d 1006, 1010 (Alaska 1981) ("It would, of course, be unrealistic to consider the suspended time to be as harsh a sanction as time to be served in prison.").
Williams also argues that his sentence is excessive. We review an excessive sentence claim under the "clearly mistaken" standard of review, which recognizes that "reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence."
Galindo v. State, 481 P.3d 686, 689-90 (Alaska App. 2021) (quoting Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997)); see McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
At Williams's resentencing hearing, Judge Schally acknowledged the uncontro verted testimony of Williams's expert witness that Williams was at low risk of committing a new sexual offense, but he noted that Williams's own expert believed that Williams's risk of committing a new crime in general was very high. Judge Schally also acknowledged that Judge Levy had found that a sentence at the lower end of the presumptive range was appropriate because of the relatively low number of images that Williams viewed and the brief amount of time that he spent viewing them. Judge Schally stated that he agreed with Judge Levy's assessment to a degree, but concluded that the need for community condemnation of the offense was high and that, because of Williams's criminal record, weight also needed to be placed on his isolation and specific deterrence.
See AS 12.55.005 (codifying the Chaney sentencing criteria and instructing courts to consider these certain factors in imposing sentence).
We have independently reviewed the sentencing record in this case. Given Williams's criminal history and risk of reoffending, we conclude that the composite sentence imposed here is not clearly mistaken.
Accordingly, the judgment of the superior court is AFFIRMED.