Opinion
Court of Appeals No. A-12325 No. 6321
04-27-2016
ARNOLD LEE YAGIE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ronald R. Dupuis, Assistant District Attorney, Anchorage, and Craig W. Richards, 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 No. 3AN-14-06035 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ronald R. Dupuis, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
After finding Arnold Lee Yagie intoxicated and asleep behind an Anchorage video store, a police officer determined that Yagie was out of compliance with his sex offender registration requirements. Yagie ultimately pled guilty to failure to register as a sex offender in the first degree. Because Yagie had four prior convictions for failure to register as a sex offender, he faced a presumptive range of 3 to 5 years. The superior court imposed a sentence at the bottom of that presumptive range: 3 years to serve, with no suspended time.
AS 11.56.835.
AS 11.56.835(d); AS 12.55.125(e)(3).
In this appeal, Yagie argues that he established the "least serious" mitigator, and that the superior court should have imposed a more lenient sentence based on that mitigator. Under AS 12.55.125(d)(9), a sentencing court is authorized to impose a sentence below the presumptive range if the defendant proves by clear and convincing evidence that "the conduct constituting the offense was among the least serious conduct included in the definition of the offense." In this analysis, the sentencing court "must consider the totality of the circumstances in deciding whether the defendant's conduct is typical for the offense or whether it verges on a greater or lesser offense."
AS 12.55.155(d)(9).
State v. Richards, 720 P.2d 47, 49 (Alaska App. 1986) (Singleton, J. concurring).
Yagie argues that the plain language of the statute defining the "least serious conduct" mitigator only permitted the sentencing judge to consider the conduct for which he was sentenced in this case — filing his annual sex offender verification five days late — and the judge therefore erred by taking his prior convictions into account in rejecting the proposed mitigator. We find no merit to this claim, given the manner in which the superior court relied on the prior convictions.
Cf. Dilts v. State, 2015 WL 1393639, at *3 (Alaska App. March 25, 2015) (unpublished) (noting that the focus of the "least serious" mitigator is on the defendant's specific conduct in the current case, but the defendant's past criminal history may nevertheless be relevant to the extent it sheds light on the defendant's motivations or mental state).
At sentencing, the defense attorney urged the judge to impose a sentence below the presumptive range because Yagie was chronically homeless, had an alcohol problem, and was only five days past the deadline for submitting his annual paperwork when arrested. In response, the sentencing judge acknowledged that 3 years of imprisonment was a lengthy sentence for a five-day delay in submitting verification paperwork. But the court concluded, based on Yagie's history of repeated convictions for the same failure to register offense, that "there really wasn't going to be much of an effort to comply [in this case] either." In other words, in the absence of evidence to the contrary, the judge found Yagie's prior failures to register to be a persuasive indicator that he had not intended to file his annual sex offender verification in a timely fashion in this case — and that it was only the chance encounter with the police that led him to being only five days late in submitting his paperwork. Given this record, we conclude that the sentencing judge did not impermissibly rely on Yagie's prior offenses in rejecting the "least serious conduct" mitigator in this case.
Yagie next contends that the sentencing judge effectively found that his offense was "least serious" when the judge stated that Yagie's conduct resulted from "neglect rather than any overt malicious conduct," and that "there really [wasn't] anyone harmed, except the larger society that wants to keep track of folks [who commit sexual crimes]." We agree that these findings lend some support to a mitigated sentence. But, given the definition of the underlying offense of failure to register, they do not establish that Yagie's conduct was "among the least serious conduct" included in the definition of the offense.
We also find no merit to Yagie's claim that the sentencing court improperly conflated its analysis of the "least serious" mitigator with its consideration of the Chaney sentencing criteria. Based on our review of the record, we conclude that the sentencing judge understood both analyses and considered the appropriate factors in imposing the sentence.
See McClain v. State, 519 P.2d 811, 813 (Alaska 1974) (explaining that a sentence is clearly mistaken only when it falls outside "a permissible range of reasonableness"). --------
Accordingly, we AFFIRM Yagie's sentence.