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Austin v. State

Court of Appeals of Alaska
May 7, 1981
627 P.2d 657 (Alaska Ct. App. 1981)
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Summary

holding that, normally, a first felony offender convicted of a class B or C felony should receive a more favorable sentence than a second felony offender convicted of the same offense

Summary of this case from Stithem v. State
See 25 Summaries

Opinion

No. 5341.

May 7, 1981.

Appeal from the Superior Court, First Judicial District, Juneau, Allen T. Compton, J.

Michael O'Brien, Asst. Public Defender, Juneau, Brian Shortell, Public Defender, Anchorage, for appellant.

Michael J. Stark, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

PER CURIAM.

Evans Austin pled guilty to a charge of criminal mischief in the second degree in violation of AS 11.46.482(a)(4), a class C felony. He was charged with unlawfully taking a car and causing damage to it in excess of $500. He was sentenced to serve three years and has appealed that sentence to this court.

AS 11.46.482(a)(4) provides as follows:

(a) A person commits the crime of criminal mischief in the second degree if, having no right to do so or any reasonable ground to believe he has such a right,

. . . . .

(4) he drives, tows away, or takes the propelled vehicle of another and damages the vehicle in an amount of $500 or more or causes the owner to incur reasonable expenses of $500 or more as a result of the loss of the use of the vehicle.

Austin argues that since this conviction was his first felony offense, that his sentence was excessive because it was greater than the presumptive sentence for a person who had a prior felony. Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case. However, it is also clear that the legislature did not intend to say that a first offender could never receive more time to serve than the presumptive sentence for a second offender, since the statute easily could have been written to accomplish that result.

AS 12.55.125(e) provides as follows:

(e) A defendant convicted of a class C felony may be sentenced to a definite term of imprisonment of not more than five years, and shall be sentenced to the following presumptive terms, subject to adjustment as provided in AS 12.55.155- 12.55.175:

(1) if the offense is a second felony conviction, two years;

(2) if the offense is a third felony conviction, three years.

We have concluded Austin's case is one of those exceptional cases where a sentence for a first felony offender can exceed the presumptive sentence for a second offender. The most important factor which supports the sentence which was imposed is the extensive juvenile record of the defendant. Austin was only eighteen at the time of this incident and had not been convicted of a felony as an adult, but he had a long juvenile record which started in 1968 when he was seven years old. The presentence report outlines constant and numerous offenses and probation violations. Also, the report, in its evaluation of Austin, was concerned with the "almost continuous" nature in which offenses were committed. Many of these charges would have been felonies if the defendant had been an adult at the time of the offense.

Austin's record is so extensive and involves so many offenses that it is difficult to list them all. According to the presentence report, his record includes several burglaries and theft offenses. Significantly, Austin's record includes five different incidents of joyriding. Austin has been placed in various juvenile institutions and programs as a result of his juvenile offenses. Upon release, his pattern of behavior has been to commit additional offenses. The record also shows Austin was convicted on a charge of criminal trespass in the second degree while he was released pending sentencing on the current charge.

AS 12.55.015(b)(3) provides:

(b) The court, in exercising sentencing discretion as provided in this chapter, shall impose a sentence involving imprisonment when . . .

(3) sentences of lesser severity have been repeatedly imposed for substantially similar offenses in the past and have proven ineffective in deterring the defendant from further criminal conduct.

The circumstances of the offense of unlawfully taking the car were also aggravated. Austin was driving the stolen car when a police officer in a police car attempted to stop him. He accelerated, trying to elude the officer. While attempting to turn a corner he crashed into a parked car. He did considerable damage to three vehicles, including the stolen car. After the collision Austin got out of the car and ran away from the scene on foot.

Given the aggravated nature of the offense and the long juvenile record of the defendant, we conclude the sentence imposed was not clearly mistaken.

McClain v. State, 519 P.2d 811 (Alaska 1974).

The decision of the superior court is therefore AFFIRMED.

Summaries of

Austin v. State

Court of Appeals of Alaska
May 7, 1981
627 P.2d 657 (Alaska Ct. App. 1981)

holding that, normally, a first felony offender convicted of a class B or C felony should receive a more favorable sentence than a second felony offender convicted of the same offense

Summary of this case from Stithem v. State

holding that, normally, a first felony offender convicted of a class B or C felony should receive a more favorable sentence than a second felony offender convicted of the same offense

Summary of this case from Hurd v. State

holding that a first offender should normally receive a sentence more favorable than the presumptive term for a second felony offender

Summary of this case from Splain v. State

holding that first offenders should normally receive more favorable sentences than the presumptive term for second offenders

Summary of this case from Juneby v. State

In Austin, this Court held that in typical cases, "a first offender should receive a more favorable sentence than the presumptive sentence for a second offender."

Summary of this case from Simmons v. State

providing that a first felony offender should normally receive a sentence that is below the presumptive term for second and subsequent offenders

Summary of this case from Kosbruk v. State

In Austin, this Court recognized that there would be instances where a first felony offender should properly receive a more severe sentence than a second felony offender convicted of the same crime. "[I]t is... clear that the legislature did not intend... that a first offender could never receive more time to serve than the presumptive [term] for a second offender, since the statute[s] easily could have been written to accomplish that result."

Summary of this case from Surrells v. State

In Austin, we held that when the sentencing of a first felony offender was not constrained by the presumptive sentencing laws — that is, cases in which a first felony offender was convicted of a class B or class C felony — the offender should ordinarily receive a more favorable sentence than the prescribed presumptive term for a second felony offender convicted of the same class of crime.

Summary of this case from Gusty v. State

In Austin, we held that first felony offenders should ordinarily receive a more favorable sentence than the presumptive term of imprisonment established for second felony offenders convicted of the same crime — and that this ceiling could be exceeded only if the State proved aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165.

Summary of this case from Ritter v. State

In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

Summary of this case from Ahvakana v. State

In Austin and Brezenoff, we held that a first felony offender should receive a more favorable sentence than the presumptive term mandated for second felony offenders convicted of the same offense, unless the State proved aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165.

Summary of this case from Tuttle v. State

In Austin, this court held that a first-felony offender who was not subject to presumptive sentencing should receive a more favorable sentence than the presumptive term of imprisonment established by the legislature for second-felony offenders convicted of the same offense unless the sentencing court found that the defendant's case was exceptional, either because the State had proved statutory aggravating factors or because of extraordinary circumstances that would have warranted referring the case to the three-judge sentencing panel (had the case been governed by presumptive sentencing).

Summary of this case from EVAN v. STATE

In Austin, we held that "[n]ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender."

Summary of this case from Espinoza v. State

In Austin, we held that "[n]ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender."

Summary of this case from Bland v. State

In Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), we held that "[n]ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender."

Summary of this case from Lewis v. State

In Austin, we held that "[n]ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender."

Summary of this case from Andrew v. State

In Austin v. State, 627 P.2d 657 (Alaska App. 1981), we held that a first felony offender convicted of an offense should normally receive a more favorable sentence than the presumptive sentence for a second offender.

Summary of this case from BUOY v. STATE

In Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), we held that first felony offenders should normally receive a sentence more favorable than the presumptive term for a second offender convicted of the same crime.

Summary of this case from Vasques-Villegas v. State

In Austin v. State, 627 P.2d 657 (Alaska App. 1981), we held that a first felony offender convicted of an offense should normally receive a more favorable sentence than the presumptive sentence for a second offender.

Summary of this case from Brakes v. State

In Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), we held that ordinarily a first felony offender convicted of an offense should receive a more favorable sentence than the presumptive term for a second felony offender.

Summary of this case from Wylie v. State

In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

Summary of this case from Davis v. State

In Austin, we held that a sentence for a first felony offender should normally be more favorable than the two-year presumptive term for a second felony offender unless the state could show the presence of substantial aggravating factors or extenuating circumstances.

Summary of this case from Gantner v. State

In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

Summary of this case from Weiss v. State

In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

Summary of this case from State v. Clark

In Austin, we indicated that first offenders should normally receive a sentence more lenient than the presumptive term for a second felony offender.

Summary of this case from Geer v. State
Case details for

Austin v. State

Case Details

Full title:EVANS AUSTIN, APPELLANT, v. STATE OF ALASKA, APPELLEE

Court:Court of Appeals of Alaska

Date published: May 7, 1981

Citations

627 P.2d 657 (Alaska Ct. App. 1981)

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