Opinion
Court of Appeals No. A-11637 Trial Court No. 3PA-11-199 CR No. 6041
04-09-2014
JAYMES A. MAYES, Appellant, v. STATE OF ALASKA, Appellee.
Bruce Brown, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Shawn D. Traini, Assistant District Attorney, Palmer, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Bruce Brown, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Shawn D. Traini, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Jaymes A. Mayes pleaded guilty to misconduct involving a controlled substance in the fourth degree for possessing 0.6 grams of cocaine. After finding the statutory mitigating factor of "small quantities" and no statutory aggravating factors, the superior court imposed a sentence of 4 years with no time suspended based primarily on Mayes's "extensive criminal history."
AS 11.71.040(a)(3)(A).
AS 12.55.155(d)(13).
Mayes appeals, arguing that the superior court gave insufficient weight to the small quantities mitigator and that his sentence is excessive. For the reasons described below, we affirm Mayes's sentence.
Background facts
Mayes agreed to plead guilty to misconduct involving a controlled substance in the fourth degree and also agreed to open sentencing. Superior Court Judge Gregory Heath accepted Mayes's change of plea on November 20, 2013. As a third felony offender, Mayes faced a presumptive sentencing range of 3 to 5 years' imprisonment. Judge Heath noted that if the court found a mitigating factor, it might go below the presumptive range. He then ordered a presentence report to be completed and scheduled sentencing for March 11, 2013.
AS 11.71.040(a)(3)(A).
AS 12.55.125(e)(3).
Prior to sentencing, Mayes filed a notice requesting the court find three statutory mitigating factors: the "least serious" mitigating factor, the "consistently minor harm" mitigating factor, and the "small quantities of a controlled substance" mitigating factor. The State did not propose any statutory aggravating factors.
AS 12.55.155(d)(9) ("[T]he conduct constituting the offense was among the least serious conduct included in the definition of the offense.").
AS 12.55.155(d)(12) ("[T]he facts surrounding the commission of the offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently minor.").
AS 12.55.155(d)(13) ("[T]he defendant is convicted of an offense specified in AS 11.71 and the offense involved small quantities of a controlled substance.").
On December 30, 2012, Mayes walked away from the halfway house where the Department of Corrections had placed him. He was charged with second-degree escape and a $2500 arrest warrant was issued.
Mayes subsequently failed to appear at his March 11, 2013 sentencing hearing. Judge Heath issued a $20,000 cash bench warrant with a third-party requirement. Mayes was eventually arrested on June 21, 2013, and his sentencing took place on June 26, 2013.
As part of Mayes's sentencing, Judge Heath reviewed the presentence report and addendum that had been prepared by the Department of Corrections. The report detailed Mayes's extensive criminal history, starting at age 14 and continuing to the present. Mayes's criminal history included three prior out-of-state felonies, including a 2005 federal conviction originating in Las Vegas for possession of controlled substances with intent to sell, multiple misdemeanor convictions since his move to Alaska, and multiple probation and parole violations. The report noted that Mayes "had rebuffed all efforts to reform his behavior" and that "at the age of 45 years, there is no indication that the defendant will change his behaviors." The report also noted that there was a current non-extraditable arrest warrant for Mayes out of Nevada for burglary, and that Mayes had a recent jail infraction for possession, use, or introduction of contraband at the Anchorage jail.
At sentencing, Mayes renewed his request for the three statutory mitigating factors. Judge Heath found that Mayes had established the "small quantities" mitigating factor pursuant to our decision in Pocock v. State, but he did not find the other two mitigating factors. The prosecutor argued that the "small quantities" mitigating factor should be given no weight and recommended that the court impose a sentence of 5 years with none suspended.
270 P.3d 823, 826 (Alaska App. 2012) (defining a "small quantity" as "a quantity that is small in comparison to 'the broad middle ground' of the conduct penalized by the statute") (citing Dollison v. State, 5 P.3d 244, 248 (Alaska App. 2000)).
Judge Heath partly agreed. He found that Mayes had an "extensive" criminal history that was "pretty consistent and pretty regular" and that Mayes had spent "the majority of [his] adult life in jail." He also found that Mayes had been given multiple chances to reform himself in the past, and that none of them had been successful. The court therefore concluded that deterrence and community condemnation, rather than rehabilitation, should be the focus of Mayes's sentence.
However, the court stopped short of imposing the full 5 years recommended by the prosecutor. Instead, the court imposed a final sentence of 4 years, stating that it was giving "a little bit of weight" to the "small quantity" mitigator, and therefore it was mitigating the sentence "down" from what would otherwise be a 5-year sentence.
Mayes now appeals, arguing that the court failed to give adequate weight to the "small quantity" mitigator and that his sentence is excessive.
Why we conclude we have jurisdiction to hear Mayes's excessive sentence claim
Because the State questions our jurisdiction to hear Mayes's excessive sentence claim under AS 12.55.120(e), and because Mayes's excessive sentence claim is intermixed with his other procedural challenges to his sentence, we address the State's jurisdictional question first.
As the State notes, AS 12.55.120(e) provides that a sentence within the applicable presumptive range "may not be appealed to the court of appeals ... on the ground that the sentence is excessive" but that it may be reviewed "through a petition filed under rules adopted by the supreme court." But as we recently explained in Mund v. State, this statute conflicts with Alaska Appellate Rule 215(a), which provides that a defendant may appeal as excessive any unsuspended sentence of imprisonment that exceeds two years for a felony offense. However, the legislature did not expressly overrule Appellate Rule 215(a) when it enacted AS 12.55.120(e), nor has the rule been modified. Therefore, as we held in Mund, Mayes continues to have the right to appeal (rather than petition) his sentence as excessive, and we continue to have jurisdiction to hear these appeals.
__ P.3d __, Op. No. 2413, 2014 WL 1133555 (Alaska App. March 21, 2014).
Id. at *2; see also Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963).
Mund, 2014 WL 1133555, at *2.
Why we conclude the superior court's sentence was not clearly mistaken
Mayes's primary argument on appeal is that the superior court erred in failing to give adequate weight to the "small quantities" mitigating factor. Mayes asserts that the "small quantities" mitigating factor should have resulted in a sentence that was below the presumptive range.
Although Mayes is correct that a mitigating factor gives the sentencing court the legal authority to depart below the applicable presumptive range, Mayes is incorrect that the superior court's finding of a mitigating factor necessarily requires any such adjustment. As this Court has repeatedly recognized, the sentencing court must still consider the factual basis for the mitigator in light of the totality of the sentencing circumstances governing the case to determine how much weight the mitigating factor deserves in the overall sentence. Moreover, unlike the existence of the mitigating factor — which is a question of law we review de novo — how much weight a mitigating factor deserves in a particular case is ultimately an issue of sentencing discretion. We therefore review this question under the clearly mistaken standard of review, a deferential standard of review that recognizes both that reasonable judges may differ regarding what constitutes an appropriate sentence for a given set of facts, and that society will accept such discrepancies provided the sentence falls within a "permissible range of reasonable sentences."
See Machado v. State, 797 P.2d 677, 689 (Alaska App. 1990) ("A mitigator may be outweighed by the existence of other factors."); Staael v. State, 697 P.2d 1050, 1058 (Alaska App. 1985) (upholding sentence where court had found a mitigating factor but gave it little weight because it decided to stress general deterrence and the affirmation of community norms).
Machado, 797 P.2d at 689; Staael, 697 P.2d at 1058; Juneby v. State, 641 P.2d 823, 838 (Alaska App. 1982).
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
McClain v. State, 519 P.2d 811, 813 (Alaska 1974); see also Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).
Here, the sentencing court carefully considered how much weight to give the "small quantity" mitigating factor and ultimately decided the mitigating factor was not entitled to much weight in light of Mayes's extensive criminal history, his repeated failures at rehabilitation, and his recent conduct. Having independently reviewed the sentencing record, we conclude this decision was not clearly mistaken.
McClain, 519 P.2d at 813-14.
Mayes also makes a separate procedural argument attacking his sentence. Mayes argues that the superior court's statement, "I'm going to mitigate [the sentence] down a little bit from 5 years, but I'm not going all the way down to the 3-year mark," suggests the superior court committed legal error by starting its sentencing analysis at the high end of the presumptive range and then deciding whether the mitigating factor justified a downward departure.
See Alaska R. App. P. 215(a)(2) (differentiating an excessive sentence claim from a challenge to the sentencing procedures).
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We disagree with Mayes's characterization of the court's sentencing remarks. In context, it is clear the sentencing court was "mitigating down" from 5 years only because it had already determined, based on Mayes's extensive criminal history and repeated failures at rehabilitation, that a sentence at the high end of the presumptive range was the appropriate sentence in this case. We therefore find no legal error in the court's sentencing analysis.
Conclusion
We AFFIRM the judgment of the superior court.