Opinion
Court of Appeals No. A-10697.
October 19, 2011.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge, Trial Court No. 2KB-07-832 CR.
Adam Bartlett, Attorney at Law, Anchorage, for the Appellant. Greggory M. Olson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Hakim Abdur Rahim Giddins was convicted of third-degree misconduct involving a controlled substance and conspiracy to commit third-degree misconduct involving a controlled substance related to his scheme to distribute crack cocaine in Kotzebue. Superior Court Judge Ben Esch imposed a twelve-year composite sentence of imprisonment for these offenses. Giddins now appeals, contending that this sentence is excessive.
AS 11.71.030(a)(1).
AS 11.31.120(a).
Before the sentencing hearing, Judge Esch ordered a presentence report, which summarized Giddins's prior history with the criminal justice system. In January 1996, while he was on juvenile probation, Giddins and two associates tried to rob a crack house at gunpoint. A man was killed during this incident, and Giddins was adjudicated a delinquent for manslaughter. Giddins was released from custody in March 2000, and released from juvenile supervision that September, when he reached the age of twenty.
Three months later, in December 2000, Giddins and an associate were arrested at the Ontario, California airport as they were trying to transport a kilogram of cocaine to Alaska. Giddins was convicted in California of conspiracy and transportation of cocaine and sentenced to eight years' imprisonment with all time suspended, except time previously served. Giddins was released in the fall of 2001 and returned to Alaska for his probation supervision.
A few months after his release from custody, in March 2002, Giddins and an associate threatened to kill a witness who had been the victim of a robbery committed by Giddins's brother. Giddins was convicted of tampering with a witness and sentenced to three years' imprisonment with two years suspended. After serving his Alaska sentence, Giddins was transported to California, and his California probation was revoked. Giddins was released on parole in September 2006, but he did not report for supervision. Giddins was arrested in August 2007 in Anchorage for California parole violations, but the authorities decided to release him and terminate his supervision.
The present offenses relate to a series of drug transactions in the fall of 2007. During the month following his release from custody, Giddins ran into an old friend named McKyle Schumann, who urged Giddins to try to sell cocaine in Kotzebue. In late September, Giddins brought an ounce of cocaine to Kotzebue and sold it, while he stayed at Schumann's house. In early October, Schumann and his girlfriend met Giddins in Anchorage, and Giddins provided them with two more ounces of cocaine to transport and sell in Kotzebue.
Then, at the end of October, Schumann picked up another four to five ounces of cocaine from Giddins in Anchorage. Giddins traveled to Kotzebue in early November, and both Schumann and Giddins sold the cocaine out of Schumann's house. Kotzebue police officers obtained a search warrant, seized a large amount of cocaine from Schumann's house, and arrested both Schumann and Giddins. While Giddins was awaiting trial, he was punished several times for prison disciplinary infractions relating to contraband, threats, and refusing to obey orders.
Based on Giddins's prior record, the parties agreed that he had at least two prior felony convictions for presumptive sentencing purposes. So the presumptive sentencing range for his controlled substance conviction was six to ten years' imprisonment, and the presumptive range for his conspiracy conviction was three to five years. The parties also agreed that these two offenses did not merge for sentencing purposes.
AS 12.55.125(d)(4).
AS 12.55.125(e)(3).
See generally Lythgoe v. State, 626 P.2d 1082, 1083 (Alaska 1980) ("[C]onspiracy does not merge into a conviction for the substantive crime.").
The judge found two aggravating factors: that Giddins had a juvenile adjudication for a felony (manslaughter) and that he was on felony probation (from the Anchorage offense) at the time he committed the Kotzebue offenses. The judge found that it was unlikely that Giddins could be rehabilitated: he had been in custody or supervision for over fourteen years, he showed no remorse or appreciation for the wrongfulness of his misconduct, he had no family or community support, and he had a poor institutional record while these charges were pending. The judge also found that Giddins had been involved in a criminal lifestyle involving drugs and violence since he was a teenager.
AS 12.55.155(c)(19).
AS 12.55.155(c)(20).
The judge concluded that the most important sentencing goal was isolation of Giddins to protect the community and that a long sentence would also serve to reaffirm societal norms and to deter other offenders. The court imposed a sentence of eight years' imprisonment on the third-degree controlled substance misconduct conviction and a consecutive sentence of four years on the conviction for conspiracy.
Each of these sentences was at the middle of the presumptive range based on Giddins's offenses and his prior record. But Giddins now argues that the judge's decision to impose these sentences consecutively resulted in an excessive composite sentence.
In 1981, the Alaska Supreme Court held that, when a defendant is being sentenced for two or more crimes, the defendant's composite sentence of imprisonment may not exceed the maximum sentence for the defendant's single most serious offense, unless the sentencing judge finds that a longer sentence is necessary to protect the public. We recently reviewed intervening court decisions and concluded that a composite sentence greater than the maximum sentence for the defendant's most serious offense can sometimes be justified by other sentencing goals.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981).
Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010).
In the present case, Judge Esch concluded that it was necessary to isolate Giddins to protect the public. He also specifically found that it was necessary "to impose a sentence greater than [the maximum sentence] for the most serious offense because of the defendant's significant prior history and demonstrated repeated involvement in drug offenses." Those findings are sufficient to justify the consecutive sentences in this case, and these findings are well supported by Giddins's criminal history as outlined above.
Giddins also argues that the composite sentence was excessive because the judge found that Giddins was not a worst offender for sentencing purposes. Generally, in order to impose a maximum sentence for a particular crime, a sentencing judge must find that a defendant is a worst offender based on his background or the circumstances of his offense. But a sentencing judge is not required to make this "worst offender" finding, unless the judge imposes the maximum sentence.
See State v. Wortham, 537 P.2d 1117, 1120-21 (Alaska 1975).
See Smith v. State, 187 P.3d 511, 527 (Alaska App. 2008).
In this case, the sentencing judge did not impose the maximum sentence for either of Giddins's offenses. We conclude that the composite sentence of twelve years' imprisonment was not clearly mistaken.
We AFFIRM the superior court's judgment and sentence.