Opinion
Court of Appeals No. A-11229 Trial Court No. 1JU-11-654 CR No. 5918
02-13-2013
KENNETH A. MONTOYA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David M. Seid, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angie Kemp, Assistant District Attorney, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: David M. Seid, Assistant Public Defender, Juneau, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Angie Kemp, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges.
BOLGER, Judge.
Kenneth A. Montoya purchased a toy gun at a general store in Juneau. Then he went across the street to a bank and handed a teller a note stating, "This is a stickup; give me all your money. I have a gun." The teller reported that Montoya then pulled a gun out of his pocket. The teller took $8,750 out of her cash drawer and handed it to Montoya.
Montoya then told the teller she could call the police, and he waited until an officer arrived. The officer arrested Montoya and discovered that the gun he had pulled out of his pocket was a toy.
Montoya was initially charged with robbery in the first degree in an indictment charging that "in the course of taking or attempting to take property from the immediate presence and control of another," Montoya used or threatened "the immediate use of force upon another person with intent to compel delivery of the property," and that, in the course of the robbery, he was "armed with a deadly weapon or represented ... that he was so armed." Prior to trial he entered into a plea bargain, agreeing to plead guilty to a reduced charge of robbery in the second degree. The reduced charge was similar to the original indictment, except that it deleted the allegation that Montoya had used or threatened to use a deadly weapon. Montoya agreed that most of the terms of the sentence, including the application of any aggravating factors, would be up to the sentencing judge.
See AS 11.41.500(a)(1).
See AS 11.41.510(a).
Superior Court Judge Philip M. Pallenberg ordered a presentence report. The report stated that Montoya had seven prior misdemeanor convictions, including convictions for criminal trespass, theft, assault, concealment of merchandise, criminal mischief, trespassing, petit larceny, and giving false information to a peace officer. The report also referred to a pretrial psychological examination, which diagnosed Montoya as suffering from chronic schizophrenia.
The examining psychologist stated that Montoya, who was then 65 years of age, was originally diagnosed with schizophrenia at the age of eighteen. Montoya told the examiner that he had generally refused to take prescribed psychotropic medications, and the Department of Corrections reported that Montoya refused medications during his most recent confinement.
The examiner also reported that Montoya had a history of prostate cancer, that he had undergone a prostatectomy in 2001, and that his cancer had now metastasized. Montoya told the examiner that he committed the robbery so that he could go to prison and receive cancer treatment.
At the sentencing hearing, Montoya's attorney admitted that the circumstances of the offense would justify a conviction for a higher degree of crime — robbery in the first degree. Judge Pallenberg agreed, and based on this finding, he concluded that the State had proven an aggravating factor — that Montoya's conduct was among the most serious conduct included in the definition of the offense. However, the judge also found that, if Montoya had been convicted of robbery in the first degree, then the circumstances of that conviction would have been mitigated by the fact that Montoya was not using a real gun. Based on these findings, the judge imposed a sentence of eight years' imprisonment with four years suspended.
See AS 12.55.155(c)(10).
On appeal, Montoya argues that this sentence was excessive. But we will not reverse a sentencing judge's decision unless the sentence was clearly mistaken. We are required to affirm a sentence if it falls within "a permissible range of reasonable sentences."
See McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App.1997) (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (quoting McClain, 519 P.2d at 813)).
In this case, the presumptive sentence for Montoya's conviction of second-degree robbery was one to three years. Considering the aggravating factor, the judge could have imposed a maximum sentence of up to ten years. If Montoya had been convicted of first-degree robbery, then the presumptive sentence would have been five to eight years; a mitigating factor could have reduced the sentence to 2 ½ years. Based on his sentencing findings, the judge imposed a sentence of four years active imprisonment — a sentence that was exactly halfway between the high end of the presumptive range for second-degree robbery and the low end of the range for first-degree robbery.
AS 12.55.125(d)(1).
AS 12.55.125(d); AS 12.55.155(a)(1).
AS 12.55.125(c)(1).
AS 12.55.155(a)(2).
Montoya argues that the judge ignored Montoya's mental illness and his related potential for rehabilitation. But the fact that an offender suffers from a chronic mental illness does not necessarily mean that the offender should receive a mitigated sentence. In this case, the judge specifically recognized both the mitigating and the aggravating aspects of Montoya's persistent mental health problems. The judge found that Montoya's illness raised the troubling potential that he could commit another dangerous crime unless he was confined to protect the public. And the judge recognized that this crime had caused a great deal of trauma to the bank teller who was the victim of this offense.
See Beaudoin v. State, 57 P.3d 703, 710 (Alaska App. 2002) (discussing Hansen v. State, 582 P.2d 1041 (Alaska 1978)); Monroe v. State, 847 P.2d 84, 93 (Alaska App. 1993).
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The sentence of four years active imprisonment is consistent with Judge Pallenberg's findings, which are in turn well-supported by the record. We conclude that this sentence falls within "the permissible range of reasonable sentences" for this offense.
We therefore AFFIRM the sentence imposed by the superior court.