Opinion
Court of Appeals No. A-8832.
July 6, 2005.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, Judge. Trial Court No. 4BE-01-908 Cr.
Marvin Hamilton, Assistant Public Defender, Bethel, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Dennis P. Cummings, Assistant District Attorney, and Devinder Brar, Acting District Attorney, Bethel, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
One evening in August 2001, Andrew Gusty Jr. picked up a 9-millimeter pistol, walked over to where his domestic partner, Marianne Thomas, was sitting, and shot her in the head. This wound left Thomas permanently disabled and unable to care for herself.
Gusty was originally charged with attempted murder, but he ultimately agreed to plead no contest to first-degree assault under AS 11.41.200(a)(3) — infliction of serious physical injury under circumstances manifesting extreme indifference to the value of human life.
Gusty was originally sentenced in October 2002. Because he was a first felony offender, and because he used a firearm to commit the offense, Gusty faced a presumptive term of 7 years' imprisonment.
AS 11.41.200(b) (first-degree assault is a class A felony); AS 12.55.125(c)(2)(A) (prescribing a 7-year presumptive term for first felony offenders who carry a firearm during the commission of any class A felony except manslaughter).
Gusty's attorney conceded five aggravating factors under AS 12.55.155(c): (c)(1) — that Thomas sustained physical injury during the offense; (c)(4) — that Gusty used a dangerous instrument during the offense; (c)(10) — that Gusty's conduct was among the worst within the definition of first-degree assault; (c)(18)(A) — that Thomas, the victim of Gusty's crime, was a member of the same household; and (c)(18)(C) — that Gusty committed his crime in the presence of children under the age of 16 who lived in the household.
(The parties and the superior court treated these last two aggravating factors as one composite "domestic violence" aggravator.)
Based on these aggravating factors, the superior court increased Gusty's sentence to 20 years' imprisonment with 5 years suspended — that is, 15 years to serve.
Gusty appealed his sentence to this Court. We vacated the sentence because, as a matter of law, it was improper for the superior court to rely on aggravators (c)(1) and (c)(4). The superior court could not rely on aggravator (c)(1), physical injury to the victim, because physical injury was a necessary element of the crime to which Gusty had entered his plea; and the superior court could not rely on aggravator (c)(4), use of a dangerous instrument, because Gusty's presumptive term had already been increased to 7 years based on his use of the firearm. See Gusty v. State, Alaska App. Memorandum Opinion No. 4732 (July 2, 2003), p. 4.
See AS 12.55.155(e): "If a factor in aggravation is a necessary element of the present offense, or requires the imposition of a presumptive term under AS 12.55.125(c)(2), that factor may not be used to aggravate the presumptive term."
Three months later, Gusty returned to the superior court for re-sentencing. Gusty's attorney still conceded the remaining aggravating factors — conduct among the most serious within the definition of the offense, and a crime of domestic violence. However, the defense attorney asked the court to reduce Gusty's sentence to 12 or 13 years to serve.
Superior Court Judge Dale O. Curda agreed that Gusty's sentence should be reduced. Judge Curda declared that he continued to view Gusty's offense as among the worst first-degree assaults. The judge further concluded that Gusty's sentence should emphasize the goal of community condemnation because of the "prevalence of . . . [drunken] domestic violence in our communities". Judge Curda also noted that the pre-sentence report contained descriptions of other verified acts of domestic violence that Gusty had committed against Thomas (even though Gusty was not prosecuted for these acts).
On the other hand, Judge Curda declared that he had to take account of the fact that Gusty had no previous criminal record, and the fact that Gusty appeared to have a significant potential for rehabilitation.
Judge Curda then stated that, "[i]n balancing it all out", he concluded that Gusty should receive a sentence of 20 years with 8 years suspended — that is, a sentence of 12 years to serve.
Despite the fact that Gusty's attorney expressly asked Judge Curda to impose a sentence of 12 or 13 years to serve, Gusty now appeals his sentence to this Court, contending that the sentence is excessive. Gusty suggests that he should have received no more than 10 years to serve.
In his brief to this Court, Gusty speaks of his proposed sentence of 10 years to serve as the " Austin limit" — a reference to our decision in Austin v. State, 627 P.2d 657 (Alaska App. 1981), in which we established a sentencing ceiling for first felony offenders whose sentencing is not governed by the presumptive sentencing laws. 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. The legislature later codified this rule in AS 12.55.125(k)(2).
Austin, 627 P.2d at 657-58.
Id.
AS 12.55.125(k) was recently repealed; see SLA 2005, ch. 2, § 32 (effective March 23, 2005).
But Austin and AS 12.55.125(k)(2) have no application to Gusty's case. Even though Gusty was a first felony offender, he was being sentenced for a class A felony, and thus his sentencing was governed by the presumptive sentencing laws. Under the presumptive sentencing laws — specifically, under AS 12.55.155(a) — Gusty's concession of the two aggravating factors meant that Judge Curda was authorized to consider sentences up to the 20-year statutory maximum for Gusty's offense. As we noted in Harris v. State, 980 P.2d 482, 486 (Alaska App. 1999), Austin does not address this situation.
Gusty also relies on our decision in Pruett v. State, 742 P.2d 257 (Alaska App. 1987), a case involving a defendant convicted of first-degree assault for inflicting a series of beatings on an elderly woman over a period of years, beatings that left her crippled and maimed. The sentencing court, finding that Pruett was a worst offender, imposed a sentence of 20 years to serve (the maximum term for this offense). On appeal, we concluded that this sentence was mistakenly severe, and we ordered the superior court to reduce Pruett's sentence to no more than 15 years with 5 years suspended — i.e., 10 years to serve.
Pruett, 742 P.2d at 259.
Id. at 260.
Id. at 268.
But our ruling in Pruett was premised on our mistaken assumptions that "a sentence in the five- to ten-year range will virtually always satisfy the [sentencing] criteria" established by the Alaska Supreme Court in State v. Chaney, 477 P.2d 441, 4434-4 (Alaska 1970), and that sentences exceeding 5 years to serve should normally be reserved for "particularly serious offenses, dangerous offenders, and professional criminals". These assumptions were wrong. The Alaska Supreme Court expressly disapproved Pruett's 10-year sentencing ceiling in State v. Wentz, 805 P.2d 962, 966 (Alaska 1991).
Id. at 264.
Given the senseless nature of Gusty's present offense, the fact that he had perpetrated acts of domestic violence against Thomas in the past, and the fact that the shooting left Thomas disabled for life, we can not say that Gusty's sentence of 12 years to serve is clearly mistaken. Accordingly, the judgement of the superior court is
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
AFFIRMED.