Opinion
Court of Appeals No. A-12479 No. 6670
08-08-2018
KENNETH ROY JONAS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Joseph B. Dallaire, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, 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. 4FA-14-3534 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany Harbison, Judge. Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Joseph B. Dallaire, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Following a jury trial, Kenneth Roy Jonas was convicted of third-degree assault. The court imposed a sentence of 5 years with 2.5 years suspended (2.5 years to serve) and a 7-year term of probation. Jonas appeals, arguing that both his term of incarceration and his term of probation are excessive. For the reasons explained in this opinion, we reject Jonas's claims and affirm his sentence.
Underlying facts and proceedings
On November 12, 2014, Letitia Melendrez was working as the front desk clerk at the Golden Nugget Hotel in Fairbanks. Throughout the day, Melendrez saw Kenneth Jonas come in and out of the building several times. Jonas was not allowed in the building, so Melendrez repeatedly told Jonas that he needed to leave. Jonas became angry at Melendrez, calling her degrading names and spitting at her.
Later that day, Jonas returned to the hotel while Melendrez was standing by the front door. Melendrez approached Jonas and told him that he was not allowed in the building and that he needed to leave. At that point, Jonas punched Melendrez in the face at least three times and pulled her hair.
Fairbanks Police Officer John Merrion responded to the assault. Officer Merrion checked Melendrez for injuries and observed red marks across Melendrez's cheekbone and down the right side of her face. Officer Merrion also saw that Melendrez was missing a tooth.
The State charged Jonas with third-degree assault under AS 11.41.220(a)(5) — i.e., committing a fourth-degree assault by physically assaulting Melendrez, while having two prior convictions for fourth-degree assault within the preceding ten years. Following trial, Jones was convicted as charged.
At sentencing, the State proposed two aggravating factors: (1) that Jonas's criminal history included repeated instances of assaultive behavior (AS 12.55.155(c)(8)), and (2) that Jonas had five or more prior class A misdemeanor convictions (AS 12.55.155(c)(31)). The superior court found both of these aggravators based on Jonas's prior criminal convictions.
As a first felony offender convicted of a non-sexual class C felony, Jonas was subject to a presumptive sentencing range of 0 to 2 years and a maximum term of imprisonment of 5 years. In light of the aggravating factors, the court had the authority to exceed the upper end of the presumptive range.
AS 11.41.220(e) (third-degree assault is a class C felony); former AS 12.55.125(e)(1) (pre-2016 version) (first felony offender convicted of a class C felony is subject to a sentencing range of 0 to 2 years).
AS 12.55.155(a).
The State argued against probation in light of Jonas's criminal history and recommended a sentence of 4 years to serve. Jonas requested a time-served sentence (Jonas had been in custody for just over a year), in exchange for placing Jonas on supervised probation.
The court imposed a sentence of 5 years with 2.5 years suspended (2.5 years to serve) and a 7-year term of probation.
Jonas's term of imprisonment is not clearly mistaken
Jonas argues that his 5-year sentence is excessive in light of Melendrez's minor injuries. To support his argument, Jonas points to cases in which defendants were sentenced to 5 years for third-degree assault convictions involving serious physical injury.
As an initial matter, we note that 2.5 years of Jonas's 5-year sentence are suspended. Although we must consider an entire sentence in determining whether it is excessive, we do not treat Jonas's suspended imprisonment as the equivalent of time to serve.
See Heavyrunner v. State, 172 P.3d 819, 821 (Alaska App. 2007).
Moreover, when we review a sentence for excessiveness, we consider only whether the sentence imposed was clearly mistaken. The "clearly mistaken" standard implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Id. at 813.
Here, Jonas's conduct of assaulting Melendrez was elevated to a felony based on his two prior convictions for fourth-degree assault. Although Jonas was a first felony offender, he had over ninety prior misdemeanor and minor offense convictions, including ten prior assault convictions (in addition to the two that comprised the predicate convictions for his current offense). He also had multiple probation violations. Based on this criminal history, the author of the presentence report concluded that Jonas's prospects for rehabilitation appeared "dismal."
Given Jonas's criminal history, and based on our independent review of the record, we conclude that his sentence of 5 years with 2.5 years suspended is not clearly mistaken.
Jonas's term of probation is not clearly mistaken
Jonas also argues that his term of probation is excessive. Jonas points to the legislature's 2016 enactment of Senate Bill 91, in which the legislature revised the maximum probationary terms set out in AS 12.55.090(c). Under the revised statute, a class C felony conviction like third-degree assault is now subject to a maximum probationary term of 5 years. Given this change in the law, Jonas argues that his 7-year term of probation is clearly mistaken.
See AS 12.55.090(c), enacted by SLA 2016, ch. 36, § 79.
AS 12.55.090(c).
The revised version of AS 12.55.090(c) does not directly apply to Jonas's case. Jonas was sentenced prior to the effective date of the revised statute, and the legislature expressly limited application of the amended statute to "probation ordered on or after [its] effective date." Thus, Jonas was subject to sentencing under the prior version of AS 12.55.090(c), which permitted imposition of a probationary term of up to 10 years.
SLA 2016, ch. 36, §§ 185(i), 188.
Former AS 12.55.090(c) (pre-2016 version).
However, there is authority for the notion that a sentencing court should consider the latest expression of legislative intent when imposing a sentence, even if the newer, revised statute does not strictly apply to the defendant's case. See Sundberg v. State, 636 P.3d 619, 622 (Alaska App. 1981) ("Sundberg I") (directing the trial court to consider the "recent expression of legislative intent" as a factor in judging the propriety of the defendant's sentence).
See also Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980) (holding that new sentencing provisions, which did not strictly control, were nonetheless "the most recent expressions of legislative policy" and thus, "useful and relevant" to determining an appropriate sentence).
But Sundberg is distinguishable from Jonas's case in a key respect. At the time of Sundberg's offense, the legislature had already enacted the new criminal code, even though the new law had not yet gone into effect. In contrast, Jonas was sentenced in November 2015, when Senate Bill 91 was still in draft form. The Alaska Legislature did not pass the final version of the law until six months later, after months of committee hearings on the bill. And the revised version of AS 12.55.090(c) did not go into effect until two months after that, in July 2016. Thus, at the time the trial court imposed Jonas's term of probation, the legislature had not expressed any different intent regarding the length of felony probation for the trial court to consider. (And, not surprisingly, Jonas did not bring the mere possibility of future legislation to the trial court's attention.)
See Sundberg v. State, 652 P.2d 113, 115-16 (Alaska App. 1982) ("Sundberg II") (opinion after remand). The new criminal code was enacted in 1978 and took effect on January 1, 1980. SLA 1978, ch. 166, § 25. Sundberg committed his offense in 1979. Sundberg I, 636 P.2d at 620. Under the new code, the revisions to Title 11 and to the sentencing terms in Title 12 applied only to offenses committed on or after the effective date. SLA 1978, ch. 166, § 23(f).
See 2016 Senate Journal 2795-96 (May 13).
Senate Bill 91 specified an effective date of July 1, 2016 for the revised statute, AS 12.55.090(c). SLA 2016, ch. 26, §§ 79, 188. The Governor did not sign Senate Bill 91 until July 11, making the revised statute effective the next day. See 2016 Senate Journal 3089 (July 15) (indicating that the Governor signed Senate Bill 91 on July 11, 2016); AS 01.10.070(d) (providing that, if the Governor signs a bill after the effective date specified in the bill, the act becomes effective the day after the Governor's signature). --------
We therefore conclude that Jonas cannot raise this claim to us in the first instance, and we reject Jonas's challenge to his probationary term based on the legislature's revision of AS 12.55.090(c) after his sentencing.
Jonas also argues that his probationary term is excessive in light of the fact that he is a first felony offender and has never previously been on supervised probation. The sentencing court acknowledged this fact — but the court also believed that, while Jonas was previously unsuccessful on misdemeanor probation, supervised probation was different and could potentially benefit Jonas's rehabilitation. As a result, the court concluded that rehabilitation was still a viable consideration and rejected the State's proposal to impose a flat sentence of 4 years to serve.
The court also recognized, however, that Jonas was battling a significant substance abuse problem that often resulted in assaultive behavior and other criminal conduct. The court concluded that a lengthy period of probation was important to closely monitor Jonas and to best ensure that Jonas could address his entrenched problem with alcohol. Indeed, Jonas's attorney acknowledged Jonas's alcohol problem, and she encouraged the court to reject the State's proposed 4-year sentence in favor of less time to serve, but with Jonas placed on supervised probation "for whatever you think is the appropriate amount of time."
Having reviewed the record, we conclude that the trial court could reasonably determine that Jonas should be supervised for a lengthy period of time, and that the court was not clearly mistaken in placing Jonas on probation for a term of 7 years.
Conclusion
The sentence imposed by the superior court is AFFIRMED.