Opinion
Court of Appeals No. A-8681.
December 21, 2005.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-00-3523 CR.
Shelley K. Chaffin, Law Office of Shelley K. Chaffin, Anchorage, for the Appellant. John J. Novak, Chief Assistant District Attorney, Leonard M. Linton Jr., District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
We remanded this case to the superior court for additional findings on the application of the Neal-Mutschler rule — the rule from the Alaska Supreme Court that requires a sentencing judge imposing a composite term for two or more crimes that exceeds the maximum sentence for the defendant's single most serious crime to enter a finding that incarceration for the composite term is necessary to protect the public. We now have the superior court's explicit findings that Matthew L. Fox's composite 11-year term with 3 years suspended, a net 8-year term to serve, was necessary to protect the public. We resume our consideration of the case and address the arguments that remained from Fox's original appeal. We reject Fox's arguments and affirm the decision of the superior court.
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Facts and proceedings
On March 28, 2000, Fox was placed at the Glenwood Center pending a hearing in a felony case in which Fox had been convicted of burglary and theft. He immediately absconded, and the superior court issued a bench warrant for his arrest.
Almost a month later, members of the Anchorage Police Department went to Fox's mother's apartment on Bragaw Street to serve the warrant. Fox's mother told police he was not in the apartment but offered to let them look inside. The police found Fox hiding in a bedroom. Fox broke through a window and ran. Detective David Parker grabbed Fox and ordered him to stop, but Fox broke free and jumped into a car parked on the street. Detective Parker tried to pull Fox out of the car, but Fox started the car and backed up, catching Parker with the driver's door and dragging Parker after he fell. Detective Lofthouse shot out both left side tires on the car. Parker rolled away from the car and Fox drove off.
Other police stopped Fox and arrested him. Fox had a cut on his arm, apparently caused by his dive through the bedroom window. The police took Fox to the hospital for treatment of his injury. While Fox was getting treatment, he fled. The police chased him and caught him across the street.
The grand jury charged Fox with two counts of second-degree escape, one count of eluding a police officer, and two counts of third-degree assault.
AS 11.56.310(a)(1)(B).
AS 28.35.182(a).
AS 11.41.220(a)(1)(A) (B).
Fox reached a plea agreement with the State. The parties agreed that Fox would enter a plea to an information charging one count of attempted second-degree escape for fleeing from the hospital, one count of third-degree assault for placing Parker in fear of imminent serious physical injury by means of a dangerous instrument, and one count of resisting arrest. Fox would also admit that he violated his probation in the other case, but the parties agreed that no previously suspended time would be revoked.
AS 11.56.700(a)(2).
Fox entered no contest pleas to the charges in the information. Superior Court Judge Michael L. Wolverton found that the State had proven seven aggravating factors from AS 12.55.155: (c)(6), Fox's conduct created a risk of injury to three or more persons; (c)(7), one of Fox's prior felony convictions was a more serious class of felony than his present offenses; (c)(12), Fox was on release on the other felony charge when he committed the present offenses; (c)(13), Fox knowingly directed his conduct toward a police officer; (c)(15), Fox had more than two prior felony convictions; (c)(19), Fox had been adjudicated a delinquent minor for conduct that would have been a felony had he been an adult; and (c)(20), Fox committed the current felonies while on probation. Judge Wolverton also found that Fox had proven mitigating factor AS 12.55.155(d)(12), Fox assisted the authorities to detect, apprehend, or prosecute other persons who committed an offense.
Because Fox had more than two prior felony convictions, he faced a presumptive 3-year term for each felony. Judge Wolverton imposed a 5-year sentence with 1½ years suspended for each felony and a 1-year sentence for resisting arrest. All sentences were imposed consecutively. Thus, Judge Wolverton imposed a composite 11-year term with 3 years suspended — 8 years to serve.
AS 12.55.125(e)(2).
Discussion
Fox's claim that Judge Wolverton's application of the Neal-Mutschler rule was erroneous
The Neal-Mutschler rule is a common-law sentencing rule announced by our supreme court; before a sentencing judge imposes consecutive sentences that total more than the maximum sentence for a defendant's single most serious crime, the judge must expressly find that total sentence necessary to protect the public.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Fox argues that the factual issues that Judge Wolverton considered in applying the Neal-Mutschler rule are issues that should have been submitted to a jury under Blakely v. Washington. Blakely rests on a principle that the Supreme Court recently repeated in United States v. Booker: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."
542 U.S. 296, 124 S. Ct. 2531, 159 L.Ed.2d 403 (2004).
___ U.S. ___, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005).
Booker, 125 S. Ct. at 756.
But under former AS 12.55.025(e) and (g), a sentencing judge's authority to impose consecutive sentences did not require proof of aggravating factors or other special factual circumstances. And in Vandergriff v. State, we rejected the argument that Blakely required a trial judge applying the Neal-Mutschler rule to submit factual issues to a jury. Accordingly, we reject Fox's argument.
Vandergriff v. State, ___ P.3d ___, Alaska App. Opinion No. 2022 (Dec. 16, 2005), 2005 WL 3444610.
Id. at 8, 2005 WL 3444610 at *3.
Fox further argues that Judge Wolverton's decision that the composite term was required to protect the public is erroneous. When a judge decides the appropriate sentence under the facts of the case, however, that is an exercise of sentencing discretion that is reviewed under the clearly mistaken standard. Judge Wolverton stated that Fox represented a significant danger to the public noting specifically the facts that supported the aggravating factors, including Fox's felony criminal history, his poor performance on probation, and his aggressive, life-threatening acts directed at police officers. We conclude that Judge Wolverton's application of the Neal-Mutschler rule to the facts of Fox's case is not clearly mistaken.
Reese v. State, 930 P.2d 1295, 1298 (Alaska App. 1996).
See Peruski v. State, 711 P.2d 573, 575 (Alaska App. 1985) (a finding that a defendant presents a danger to the public will be upheld if supported by substantial evidence and not clearly mistaken).
Fox also contends that Judge Wolverton relied on facts in the pre-sentence report that Fox now claims were unsupported or erroneous. But under Criminal Rule 32.1(d)(5) a sentencing judge is entitled to rely on verified assertions in the pre-sentence report unless those assertions are challenged by the defendant. Unless a defendant challenges the presentence report, the trial judge is entitled to rely on it. Fox has not shown that he objected to those portions of the presentence report that he now attacks.
See Nukapigak v. State, 576 P.2d 982, 984 (Alaska 1978) (accepting the use of verified hearsay information at sentencing).
Fox's due process claim
Fox argues that he was denied due process of law. He contends that Judge Wolverton relied on personal knowledge of facts about Fox and Fox was not aware of what information Judge Wolverton possessed. Fox apparently relies on a comment at his sentencing where Judge Wolverton said as follows:
I've been involved with you in so many different cases. It's sort of amazing over the period of time how many fairly significant, pretty ugly cases that your name came up in, whether it was cooperating or whether it was not cooperating or whether your name is just mentioned. I think it is amazing that you came out of this time period alive. Because you were sure hell-bent on self-destruction.
But Judge Wolverton's familiarity with Fox's contact with other cases in the court system was confirmed by the pre-sentence report as Judge Wolverton noted in his supplemental findings on remand. Even though Judge Wolverton may have heard about Fox while he sat on other cases, the over two hundred page pre-sentence report details much about Fox's history and provides a foundation for Judge Wolverton's sentencing analysis. And just after Judge Wolverton made the comment quoted above, he found, in contrast, that Fox was now "a changed person." Fox has not convinced us that there was a due process violation.
Fox's excessive sentence claim
Fox claims that his net 8-year term to serve is excessive. In Farmer v. State, we held that the presumptive term for a defendant's most serious offense is a sentencing benchmark that should not be exceeded absent some good reason. Here, Judge Wolverton found several aggravating factors applied at sentencing. Furthermore, Judge Wolverton found that Fox needed incarceration as a "time out" to stay away from substance abuse, alcohol abuse, and the people he had been associating with. We are not able to say that Fox's composite term to serve is clearly mistaken.
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
See McClain v. State, 519 P.2d 811, 812-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
Fox's claim that Judge Wolverton erred by not addressing his Blakely claim on remand
Finally, Fox claims that Judge Wolverton erroneously failed to address the Blakely claim that he raised before the superior court while the case was on remand. Fox contended that the superior court's findings on the several aggravating factors violated Blakely. Blakely was issued before we remanded the case, and it is clear that Blakely applies. However, the superior court did not address Fox's Blakely claim, apparently concluding that the issue was outside the scope of our order on remand. In the absence of a ruling by the superior court, we also decline to address Fox's Blakely claim. Fox is not foreclosed from renewing his claim in the superior court.
Conclusion
The decisions of the superior court are AFFIRMED.