CLOYD v. STATE, A-10456 (Alaska App. 10-7-2009)
Court of Appeals No. A-10456.Court of Appeals of Alaska.
October 7, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge, Trial Court No. 4FA-02-04211 CR.
Michael Biderman, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Corinne Vorenkamp, Assistant District Attorney, J. Michael Gray, District Attorney, Fairbanks, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.Page 2
A jury convicted Matthew A. Cloyd of one count of felony stalking in the first degree[fn1] and 13 counts of violating a protective order.[fn2] On June 3, 2003, Superior Court Judge Richard D. Savell sentenced Cloyd to a composite sentence of 8 years, with 3 years and 6 months suspended.[fn3] He placed Cloyd on probation for a period of 10 years. Cloyd’s conviction for felony stalking was his second felony stalking conviction. In sentencing Cloyd, Judge Savell pointed out that Cloyd had numerous prior convictions for driving while his license was suspended and that Cloyd had demonstrated a consistent disregard for the law. In addition, Cloyd had an extensive prior record of assaults against his wife, several probation violations, and had consistently violated domestic violence protective orders. Judge Savell concluded that Cloyd was the “most irrational, resistant, intransigent, intractable, focused domestic violence protective order violator [he had] ever encountered.” Judge Savell concluded that, on the record before him, Cloyd was a “worst offender.”
In spite of these findings, Judge Savell indicated that, despite Cloyd’s prior record and poor prospects for rehabilitation, he wanted to impose a sentence that would give Cloyd an opportunity for rehabilitation. He indicated that he was therefore not imposing as harsh a sentence as he otherwise could. Cloyd appealed, arguing that his sentence was excessive. We affirmed.[fn4]Page 3
In October 2008, Cloyd’s probation officer filed a petition to revoke his probation. According to the petition to revoke, Cloyd had violated his probation in several respects. Although he was required to report to his probation officer and secure permission from his probation officer before changing employment or his residence, Cloyd had not reported. In fact, his probation officer did not know where he was. Furthermore, Cloyd had violated state law by using marijuana. He was also required by his conditions of probation to complete a violence rehabilitation program and to undergo domestic violence counseling, but he had not done so. Cloyd ultimately admitted these probation violations.
Cloyd appeared for disposition in front of Superior Court Judge Michael A. MacDonald. Judge MacDonald began his sentencing remarks by referring back to Judge Savell’s findings at Cloyd’s original sentencing. He noted Cloyd had continued to demonstrate that he had no regard for the law. He found that Cloyd had “effectively rejected the probation.” He concluded Cloyd was “un-deterrable and beyond rehabilitation.” He accordingly imposed the 3 years and 6 months of Cloyd’s sentence that had previously been suspended.
On appeal, Cloyd points out that his violations of probation were primarily technical violations, along with the relatively minor offense of consuming marijuana. He also points out that this was the first petition to revoke probation brought against him and that he had been on probation for close to 3 years and had not had any criminal charges brought against him. Cloyd also points out that he had recently enrolled in and is participating in substance abuse and anger management programs in jail. He argues the superior court imposed an excessive sentence.
In determining an appropriate sentence for a defendant who violates probation, the court must weigh “all available sentencing evidence, includingPage 4
information concerning the defendant’s background, the seriousness of the original offense, the nature of the defendant’s conduct on probation, and the seriousness of the violations that led to the revocation.”[fn5] At the time that Cloyd appeared before Judge Savell at the original sentencing in this case, Cloyd had been convicted of his second felony stalking conviction. He had an extensive history of crimes of domestic violence and violating domestic violence restraining orders. In addition, he had numerous other convictions. Against this backdrop, Judge Savell concluded that Cloyd had no respect for the law and had consistently violated the rules of society. He found that Cloyd was a “worst offender.” But instead of imposing as severe a sentence as he could, Judge Savell chose to test Cloyd on probation.
When Cloyd appeared before Judge MacDonald, Judge MacDonald relied on Judge Savell’s prior findings. And he could properly conclude that Judge Savell had given Cloyd an opportunity to prove himself on probation but that Cloyd had demonstrated that he was not amenable to probation and would continue to violate the rules of society. We conclude that the record supports Judge MacDonald’s finding and supports his decision to impose the remainder of Cloyd’s suspended imprisonment. We conclude that the sentence was not clearly mistaken.[fn6]
The judgment of the superior court is AFFIRMED.
[fn1] AS 11.41.260(a). [fn2] AS 11.56.740(a). [fn3] Cloyd v. State, Memorandum Opinion and Judgment No. 5194 (Alaska App., Mar. 21, 2007), 2007 WL 867003. [fn4] Id. [fn5] Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990). [fn6] McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).Page 1