RICHARDS v. STATE, A-10474 (Alaska App. 2-10-2010)

DENNIS M. RICHARDS, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10474.Court of Appeals of Alaska.
February 10, 2010.

Appeal from the Superior Court, Third Judicial District, Palmer, Beverly Cutler, Judge, Trial Court No. 3PA-97-947 CR 3PA-97-1173 CR.

David E. George, Anchorage, for the Appellant. Trina Sears, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
BOLGER, Judge.

On December 11, 2007, Superior Court Judge Beverly Cutler sentenced Dennis M. Richards for two separate cases. In case 3PA-97-947 CR, Richards received 3 years’ imprisonment with all time suspended (except time served) for his conviction of attempted second-degree escape. In case 3PA-97-1173 CR, Richards received a consecutive sentence of 3 years’ imprisonment with all time suspended (except timePage 2
served) for another conviction for attempted second-degree escape and an additional 1 year with all but 30 days suspended for a charge of fourth-degree assault. These sentences were imposed pursuant to a Rule 11 agreement resulting from Richards’s cooperation in a murder investigation.

In April and June of 2008, Richards’s probation officer filed petitions to revoke his probation, alleging that Richards had ingested marijuana and methamphetamine, failed to report to the probation office, and violated the conditions of his release. Based on Richards’s admissions, Judge Cutler revoked his probation and imposed the balance of his suspended time in March 2009. Richards now appeals this sentence.

Background

Richards has a lengthy criminal history. In 1985, Richards was convicted of first-degree robbery for robbing a McDonalds. Richards violated his probation in that case by using marijuana, tampering with his urinalysis, using cocaine, and failing to report.

In 1993, Richards’s theft of a backpack led to charges of resisting arrest, assault, and perjury. Richards stole a woman’s backpack, lied to police about his identity, struggled with police, and provided a false name while under oath in court. Richards was convicted of first-degree perjury, driving under the influence, and resisting arrest, and he was sentenced to a presumptive four-year term on the felony. Richards was not placed on felony probation but was subject to mandatory parole supervision.

While on parole for his perjury conviction, Richards committed the offenses underlying the present appeal. In May 1997, a Wasilla Police Officer conducted a traffic stop of Richards’s vehicle because Richards was driving erratically. Richards wasPage 3
arrested for driving while intoxicated, but he escaped and fled on foot. Then, on June 4, 1997, a police officer stopped a vehicle driven by Richards’s wife. Richards, who was a passenger in the vehicle, gave the officer a false name, but an APSIN check led the officer to believe that Richards was lying. When Richards was asked to exit the vehicle, he took a sip of beer and then attacked a trooper who was providing assistance. Richards was subdued with the help of several officers and the use of pepper spray, and he was placed in the rear of a patrol car. However, Richards kicked out the patrol car window, jumped from the vehicle while it was traveling 25 miles per hour, and escaped.

Richards entered no contest pleas in both cases in April 1999, but he left the state before sentencing and fled to Hawaii. While in Hawaii, Richards was convicted of a multitude of criminal offenses, including a felony theft conviction, five convictions for failure to appear, and seven convictions for criminal contempt. Richards was extradited to Alaska following his arrest in 2005.

Richards’s presentence investigator recommended no further probation because of his lengthy criminal history and numerous probation violations. However, while awaiting sentencing, Richards agreed to assist the State in a murder investigation. Because of Richards’s cooperation, the State entered into a Rule 11 agreement in which the State agreed that Richards would receive a mitigated composite sentence for 3PA-07-947 CR and 3PA-07-1173 CR consisting largely of suspended time. This resulted in a lesser sentence than would have been imposed prior to Richards’s abscondence to Hawaii.

Richards was sentenced on December 11, 2007. Judge Cutler expressed some displeasure with the plea agreement and noted that while awaiting sentencing, Richards had been arrested on new charges. Despite her concerns, the judge imposed the mitigated sentence. However, in April and June of 2008, Richards’s probationPage 4
officer filed petitions to revoke his probation for numerous infractions, and in March 2009 Judge Cutler imposed the balance of the suspended sentence. Richards now argues that this sentence is excessive.

Discussion

A sentencing judge may not automatically impose all of a defendant’s suspended jail time when the defendant violates the conditions of probation. Rather, the judge must consider the defendant’s background and the original offense, coupled with the defendant’s conduct on probation, and then weigh these circumstances in light of the sentencing criteria codified in AS 12.55.005.[fn1]

The record reflects that Judge Cutler explicitly considered these criteria. Based on Richards’s background, Judge Cutler concluded that Richards would not comply with the probation supervision necessary for his rehabilitation. The judge likewise concluded that a lengthy sentence was necessary to deter Richards from further criminal misconduct. The judge also concluded that the primary sentencing goals werePage 5
to isolate Richards to protect the public and to reaffirm societal norms. These conclusions were reasonably based on Richards’s criminal background and the circumstances of these offenses as outlined above. We therefore conclude that the sentencing decision was not clearly mistaken.[fn2]

We AFFIRM the superior court’s judgment.

[fn1] Oyoumick v. State, 185 P.3d 771, 774 (Alaska App. 2008). The sentencing criteria listed in AS 12.55.005 include the following:

(1) the seriousness of the defendant’s present offense in relation to other offenses; (2) the prior criminal history of the defendant and the likelihood of rehabilitation; (3) the need to confine the defendant to prevent further harm to the public; (4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order; (5) the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct; (6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms; and (7) the restoration of the victim and the community.

[fn2] See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that a sentence will be modified on appeal only when the reviewing court is convinced that the sentencing decision was clearly mistaken).