Opinion
Court of Appeals No. A-12107 No. 6455
04-19-2017
JOHNNY B. JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Johnny B. Johnson, pro se, Juneau, Appellant. Daniel K. Shorey, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-06-6234 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Johnny B. Johnson, pro se, Juneau, Appellant. Daniel K. Shorey, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Johnny B. Johnson of three counts of attempted first-degree murder, three counts of assault, and one count of tampering with physical evidence after he attacked three men with a box cutter and then attempted to destroy evidence of the crime. The trial court imposed a composite sentence of 104 years' imprisonment with 15 suspended, 89 years to serve. Johnson appealed his convictions, and this Court reversed on evidentiary grounds.
Johnson v. State, 268 P.3d 362 (Alaska App. 2012).
On remand, Johnson entered into a Criminal Rule 11 plea agreement. He agreed to plead guilty to one count of first-degree assault, one count of third-degree assault, and one count of tampering with physical evidence. The judge would decide whether any statutory aggravators or mitigators applied to Johnson's case, and the term of imprisonment was open.
AS 11.41.200(a)(1), AS 11.41.220(a)(1)(B), and AS 11.56.610(a), respectively.
At sentencing, Johnson represented himself, aided by standby counsel. Superior Court Judge Philip R. Volland found three statutory aggravators and rejected Johnson's two proposed statutory mitigators. The judge imposed a composite sentence of 20 years to serve.
Johnson now challenges the judge's rulings on the proposed aggravators and mitigators and the judge's consideration of Johnson's prospects for rehabilitation. For the reasons explained here, we affirm Johnson's sentence.
The superior court properly found that aggravating factors AS 12.55.155(c)(8) and (c)(19) applied
Johnson first challenges the superior court's consideration of two statutory aggravators at his sentencing: aggravator (c)(8)—that Johnson's "prior criminal history includes conduct involving aggravated assaultive behavior," and aggravator (c)(19) — that Johnson's "prior criminal history includes an adjudication as a delinquent for conduct that would have been a felony if committed by an adult." According to Johnson, the judge improperly relied on Johnson's prior out-of-state convictions as the basis for these aggravators.
AS 12.55.155(c)(8) and (19), respectively.
The problem with this argument is that Johnson conceded both aggravators at sentencing. In a sentencing memorandum drafted by his standby counsel, Johnson stated that he did not intend to contest whether aggravator (c)(8) had been established. He also chose not to dispute aggravator (c)(19), instead arguing: "if the court finds the aggravator, the court should ... find that it merits little, if any, weight." And at the sentencing hearing, Johnson's standby counsel explained that Johnson was "not really disputing" the application of the two aggravators.
As the State points out, "we have repeatedly held that a sentencing judge does not commit plain error when the judge relies on an aggravating factor that has been conceded by the defendant or the defendant's attorney." We accordingly reject Johnson's argument on this basis.
Twogood v. State, 223 P.3d 641, 651-52 (Alaska App. 2010).
Johnson waived his right to a jury trial on aggravator AS 12.55.155(c)(10)
Johnson separately challenges the court's finding of aggravator (c)(10) — that "the conduct constituting the offense was among the most serious conduct included in the definition of the offense"—because this aggravator was not submitted to a jury. But the record shows that Johnson waived his right to a jury determination of this aggravator.
AS 12.55.155(c)(10).
See Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt").
In his plea agreement Johnson stipulated: "There are no agreements as to statutory aggravators and mitigators. It will be up to the sentencing court to rule on any proposed aggravators and mitigators." The parties disputed the meaning of this provision at sentencing. The State asserted that, under this provision, Johnson waived his right to have aggravator (c)(10) determined by a jury. Johnson's standby counsel disagreed, arguing that Johnson was entitled to a jury trial on the aggravator notwithstanding the language of the plea agreement.
Judge Volland noted that "no specific waiver [had been] elicited ... from Mr. Johnson regarding ... any right to jury trial concerning any aggravators that might require a jury trial determination." The judge then asked: "Given the questions that have been raised at sentencing, Mr. Johnson, ... which potentially might impact sentencing, do you wish to withdraw your plea?" Johnson answered: "No, Your Honor."
On appeal, Johnson renews his argument that he was entitled to a jury finding on aggravator (c)(10). While Johnson is correct that submission of this aggravator to a jury is normally required, this right can be knowingly waived.
At sentencing, Judge Volland informed Johnson that his plea agreement was ambiguous, because it seemed to commit Johnson to allowing the sentencing judge to make the finding regarding the aggravator (c)(10), but it did not contain an express waiver of the right to have a jury decide that issue. Judge Volland then gave Johnson a choice. Johnson could either withdraw from the plea agreement, or he could ratify it with awareness of the waiver of his right to jury trial. Johnson chose the latter course, and so waived the claim he now raises on appeal.
See Turk v. State, 662 P.2d 997, 1000 (Alaska App. 1983) (noting that the "customary remedy" for the State's breach of a plea agreement "is permission for the defendant to withdraw his plea and proceed to trial").
See Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978).
The judge did not create a new non-statutory aggravator, and the evidence supported his finding that aggravator AS 12.55.155(c)(10) applied
Johnson challenges Judge Volland's factual finding that Johnson's conduct in this case was "unpredictable, unexplained, and unprovoked." According to Johnson, the judge impermissibly created a non-statutory aggravating factor by relying on this finding in imposing Johnson's sentence.
See Woods v. State, 667 P.2d 184, 187 (Alaska 1983) (holding that a sentencing judge errs "in taking into consideration aggravating factors which were not enumerated in AS 12.55.155(c) at the time of [the defendant's] sentencing").
Judge Volland did not create a new non-statutory aggravator. Rather, based on the inexplicable randomness of Johnson's violent outburst, the judge concluded that one of the aggravators codified in AS 12.55.155 — aggravator (c)(10) — applied to Johnson's case: that Johnson's conduct "was among the most serious conduct included in the definition of the offense."
AS 12.55.155(c)(10).
Johnson also challenges the judge's factual findings that Johnson was the initial aggressor and that he inflicted serious physical injuries on the victims. We review a judge's factual findings for clear error. "A finding is clearly erroneous when, although there may be evidence to support it, [the reviewing court is] ... left with the definite and firm conviction on the entire record that a mistake has been committed." Here, we have reviewed the record and we conclude that the judge did not commit clear error in rejecting Johnson's trial testimony that he was merely defending himself. Nor did the judge commit clear error in finding that the injuries Johnson inflicted were serious.
Alaska Foods, Inc. v. American Mfr.'s Mut. Ins. Co., 482 P.2d 842, 848 (Alaska 1971).
Id.
We therefore affirm the judge's conclusion that Johnson's crime was among the most serious conduct included in the definition of his offense.
The superior court properly rejected Johnson's proposed mitigators AS 12.55.155(d)(3) and (d)(6)
Johnson challenges the superior court's rejection of his two proposed statutory mitigators: mitigator (d)(3)—that "the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct," and mitigator (d)(6) — that "the defendant acted with serious provocation from the victim."
AS 12.55.155(d)(3) and (6), respectively.
But Johnson's argument is premised on viewing the evidence in the light most favorable to himself. As explained above, Judge Volland found that Johnson's version of events lacked credibility and, instead, he credited the victims' testimony. We therefore uphold the judge's ruling that the proposed mitigators did not apply in Johnson's case.
The judge appropriately considered Johnson's prospects for rehabilitation
Johnson challenges the judge's finding that Johnson had "cautious" prospects for rehabilitation. According to Johnson, the judge should have recognized his efforts toward rehabilitation while incarcerated and thus should have suspended a significant portion of his sentence, rather than imposing a composite sentence of 20 years to serve.
In his sentencing remarks, the judge determined that Johnson had "matured" since the initial sentencing hearing in the case, and that his prospects for rehabilitation had "improved." But the judge also noted that Johnson had engaged in numerous disciplinary infractions while incarcerated — including nine incidents of violence and three incidents of threatened violence. The judge thus concluded that Johnson "continued to react as impulsively and as defensively when challenged ... as he did [during the criminal episode in this case]."
The judge concluded that Johnson's rehabilitation would not be promoted by imposing suspended time:
[At your sentencing in] 2008, you were younger. I gave you a much longer sentence. I felt that your rehabilitation would be served after a much longer sentence by what I considered then to be additional institutional aids that can be provided by probation. Now you're older, and having seen you mature over time, I'm of the view you will either make it on parole, or you won't. And there is no value served in giving you a longer sentence and suspending some period of time.
We have independently reviewed the record, and we conclude that the judge's decision was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). --------
Conclusion
We AFFIRM the judgment of the superior court.