FREELAND v. STATE, A-8852 (Alaska App. 10-12-2005)

JASON S. FREELAND, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8852.Court of Appeals of Alaska.
October 12, 2005

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-S00-2104 CR.

George B. Davenport, Assistant Public Defender, Palmer, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.

Robert J. Collins, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Bethel, and Scott J. Nordstrand, Acting Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.

In this sentence appeal, Jason S. Freeland contends that the 30 months of imprisonment imposed by the superior court when his probation was revoked yielded an excessive sentence. Because we conclude that Freeland’s sentence is not clearly mistaken, we affirm.

In the early morning hours of October 21, 2000, Clinton Hupp ordered Freeland to leave Hupp’s Wasilla residence. As he left the area, Freeland fired several shots at Hupp’s residence and drove away. Freeland returned to the residence and fired more shots. Freeland fled again, this time pursued by Hupp’s father. Freeland shot at Hupp’s father’s vehicle. The police joined the chase and the car turned into a driveway. Freeland fled on foot but was eventually subdued.

The grand jury returned a six-count indictment against Freeland: one count of first-degree misconduct involving weapons;[fn1] one count of attempted first-degree assault;[fn2] one count of second-degree misconduct involving weapons;[fn3] and three counts of third-degree assault.[fn4] The State also filed an information charging fourth-degree misconduct involving weapons[fn5] and driving while license was cancelled.[fn6]

Freeland pleaded no contest to second-degree misconduct involving weapons and the three counts of third-degree assault. The other charges were dismissed. Freeland was originally sentenced in November 2001. Because he was a first felony offender, and because the charges on which sentencing was pending were class B or class C felonies, Freeland did not face a presumptive term under pre-2005 sentencing law.[fn7]

Freeland’s attorney conceded three statutory aggravating factors under AS 12.55.155(c): (c)(6) (Freeland’s conduct created a risk of imminent injury to three or more persons); (c)(9) (Freeland knew that the offense involved more than one victim); and (c)(10) (Freeland’s conduct was among the worst within the definition of second-degree misconduct involving weapons). Although Freeland did not face a presumptive term, the aggravating factors were relevant to the superior court’s sentencing authority under former AS 12.55.125(k)(2). The State also mentioned a possible fourth aggravating factor, (c)(19), because Freeland had been adjudicated a delinquent minor for conduct that would have been a felony had he been an adult, but the court did not discuss it further. In addition, Freeland had eight misdemeanor convictions for various offenses.

Superior Court Judge Eric Smith imposed 7 years with 4 suspended for second-degree weapons misconduct. On each third-degree assault charge, he imposed a 3-year term with 2 years suspended. The sentences for two of the assault charges were imposed concurrently with the weapons misconduct charge. The sentence for the remaining assault charge was imposed consecutively to the other counts. Thus, Judge Smith imposed a composite 10-year term with 6 years suspended, a net 4-year term to serve. After completing his imprisonment, and while on probation, Freeland was subject to a number of probation conditions.

On May 22, 2002, Freeland was released on discretionary parole with a condition that he remain at a community residential center for 1 year. Freeland was returned to custody on August 9, 2002, after the residential center discharged him for violating the center’s rules and his parole was revoked.

Freeland was released on probation on September 29, 2003. On December 10, 2003, Freeland’s probation officer filed a petition to revoke Freeland’s probation. The petition alleged three violations: Freeland consumed alcohol, consumed cocaine, and consumed methadone. Freeland also violated institutional rules while in custody awaiting disposition of the petition.

At disposition on the petition on June 4, 2004, Judge Smith imposed 30 months of the suspended imprisonment and added a condition that Freeland apply for inpatient treatment while he remained in custody and attend if he was accepted.

Freeland argues that the resulting sentence, 10 years’ imprisonment with 3 and 1/2 years suspended, a net 6 and 1/2 year term to serve, is excessive. Freeland first compares his net term to serve to the upper benchmark range for first felony offenders convicted of a class B felony established in State v.Jackson.[fn8] But Freeland recognizes that because he was sentenced for several crimes, his case is properly subject to the rule announced in Farmer v. State.[fn9] In Farmer, we ruled that although the presumptive term for a second felony offender remains “an important benchmark,” a first felony offender can be sentenced to a greater term of imprisonment for any good reason.[fn10]

Freeland also faults Judge Smith for not finding that Freeland was a worst offender or that his case was exceptionally aggravated. Freeland argues that Judge Smith would have to make such findings to justify exceeding the Jackson upper limit of 6 years for exceptionally aggravated offenses. But a worst offender finding is required to justify a maximum sentence for an individual offense.[fn11] Freeland did not receive a maximum sentence.

Again, the issue is whether Judge Smith exceeded the Farmer
benchmark for a good reason. The record shows that Freeland had his first contact with the juvenile system when he was fifteen years old. While a juvenile, he had several incidents involving drugs or alcohol. The underlying offenses here were committed when Freeland was intoxicated. By the time he appeared before Judge Smith for disposition on the petition, Freeland had failed at inpatient treatment, had used alcohol and controlled substances in violation of his probation conditions, and had several institutional problems while awaiting disposition. Judge Smith found that Freeland had a significant substance abuse problem, especially considering the role it played in the underlying offenses. As Judge Smith found, “it was a miracle nobody got killed” during those offenses.

From our review of the record, we conclude that Judge Smith’s concern that the sentence he imposed was necessary to attempt to address Freeland’s substance abuse problem was a good reason that satisfies Farmer. Therefore, we are not able to say that Freeland’s sentence is clearly mistaken.[fn12] Accordingly, the judgment of the superior court is AFFIRMED.

[fn1] AS 11.61.190(a)(2). [fn2] AS 11.41.200(a)(1) and AS 11.31.100(a). [fn3] AS 11.61.195(a)(3)(B). [fn4] AS 11.41.220(a)(1)(A). [fn5] AS 11.61.210(a)(1) and (2). [fn6] AS 28.15.291(a)(1). [fn7] See former AS 12.55.125(d). [fn8] 776 P.2d 320, 326 (Alaska App. 1989) (establishing 6 years as the benchmark upper limit for an exceptionally aggravated class B felony committed by a first felony offender). [fn9] 746 P.2d 1300 (Alaska App. 1987). [fn10] Farmer, 746 P.2d at 1301-02. [fn11] See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990). [fn12] See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court must affirm a sentencing decision unless the decision is clearly mistaken).

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