Opinion
Court of Appeals No. A-9354.
February 28, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3UN-00-18 CR.
Linda K. Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
George A. Goins argues that the superior court illegally found statutory aggravating factors codified in AS 12.55.155(c). Goins claims that, under the United States Supreme Court's decision in Blakely v. Washington, the Sixth Amendment guarantees a right to jury trial with respect to all statutory aggravating factors.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
But Goins was sentenced as a first felony offender for a class C felony, and the superior court imposed a sentence that complied with former AS 12.55.125(k)(2). In Surrells v. State, this court held that Blakely does not apply when the superior court imposes a sentence that complies with former AS 12.55.125(k)(2). Accordingly, we reject Goins's arguments.
___ P.3d ___, (Alaska App. Opinion No. 2076 (Dec. 8, 2006), 2006 WL 3530602.
Goins separately argues that when the superior court revoked his suspended imprisonment, the resulting sentence was excessive. Because we conclude that the superior court was not clearly mistaken, we affirm Goins's sentence.
Factual and procedural background
In March 2000, the grand jury charged Goins with two counts of third-degree assault and two counts of fourth-degree assault. The charges arose out of an incident in which he assaulted his wife, Phyllis Goins, by holding her down, placing a knife to her navel, and threatening to cut her so that she would "die a slow and miserable death." Goins reached a plea agreement with the State, pleading no contest to one count of third-degree assault in exchange for dismissal of the other charges.
AS 11.41.220(a)(1)(A) (B).
AS 11.41.230(a)(1).
Although Goins had two prior felony convictions in California, the State conceded that those convictions did not qualify as prior felony convictions under AS 12.55.145. Thus, Goins faced sentencing as a first felony offender. Because third-degree assault is a class C felony, Goins was subject to a 5-year maximum sentence, and, under former AS 12.55.125(k)(2), the superior court could not impose more than 2 years to serve unless the court found aggravating factors or extraordinary circumstances.
AS 11.41.220(d).
See former AS 12.55.125(e); former AS 12.55.125(k) (2 ); Austin v. State, 627 P.2d 657 (Alaska App. 1981).
The State alleged that several statutory aggravating factors applied. Goins conceded aggravating factor (c)(18)(A) (the offense was a felony specified in AS 11.41 and was committed against a spouse). Superior Court Judge Michael L. Wolverton found aggravating factors (c)(1) (Phyllis Goins sustained physical injury in the assault), (c)(8) (Goins's criminal history included conduct involving aggravated or repeated instances of assaultive behavior), and (c)(21) (Goins had a history of repeated instances of criminal conduct similar to the current offense). Judge Wolverton sentenced Goins to 48 months with 30 months suspended, and imposed a 5-year term of probation. Thus, even though Judge Wolverton found several aggravating factors, he imposed a sentence that did not require proof of any aggravating factors under AS 12.55.125(k)(2).
In September 2001, the State filed a petition to revoke Goins's probation for failure to report to his probation officer. Goins was not located until July 2003, after the State learned that Goins had traveled to Washington state where he was convicted of felony second-degree assault on Phyllis Goins in Washington. The State asked the court to impose the balance of Goins's suspended sentence.
Goins filed a motion to correct an illegal sentence under Alaska Criminal Rule 35(a), arguing that any imposition of suspended time that would increase his time served above the Austin limit of 2 years would violate Blakely. Judge Wolverton denied Goins's Rule 35(a) motion, and imposed the 30 months of suspended imprisonment. Goins appeals the denial of his Rule 35(a) motion. He also argues that the sentence he received after his probation was revoked is excessive.
Goins's sentence does not violate Blakely
Goins's original sentence did not violate Blakely because, under former AS 12.55.125(k)(2), proof of aggravating factors was needed only if the superior court sentenced Goins to more than 2 years of unsuspended jail time. However, Goins argues that the superior court violated Blakely when it imposed his suspended imprisonment.
In Surrells, we held that a sentence that was originally imposed in compliance with AS 12.55.125(k)(2) does not conflict with Blakely if the superior court later revokes the defendant's probation and the defendant receives a sentence greater than the presumptive term to serve for a second felony offender. This is the circumstance in Goins's case. Accordingly, we reject Goins's Blakely arguments.
See Surrells, ___ P.3d at ___, Opinion No. 2076 at 9-14, 2006 WL 3530602 at *5-*8.
Goins's sentence is not excessive
After the superior court revoked all of Goins's suspended imprisonment, Goins's resulting sentence for his third-degree assault conviction was 4 years to serve. Goins contends that this sentence is excessive.
Goins also argues that Judge Wolverton mistakenly thought that Goins was a second or third felony offender when he revoked the balance of Goins's suspended imprisonment. But when Judge Wolverton originally sentenced Goins, the State conceded that Goins was a first felony offender for purposes of presumptive sentencing.
Goins has a substantial adult criminal history that began in 1983. Although Goins was sentenced as a first felony offender in this case, he did have prior felony convictions in California. His record included misdemeanor convictions for assaulting Phyllis Goins. After Goins absconded from probation supervision in this case, he committed a felony second-degree assault on Phyllis Goins in Washington state.
Judge Wolverton found that Goins was not amenable to probationary supervision. He found that "isolation is a primary factor, as well as reaffirmation of societal norms" and that Goins's potential for rehabilitation was "guarded, at best."
From our review of the record, we conclude that Goins's sentence is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
The judgment of the superior court is AFFIRMED.