Opinion
A-13825
08-02-2023
MICHAEL CHARLES REDFOX, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Fourth Judicial District, Emmonak, Trial Court No. 4EM-13-00151 CR William Montgomery, Judge.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Michael Charles Redfox was convicted of first-degree harassment, two counts of first-degree criminal trespass, and violating conditions of release (VCOR).The trial court sentenced Redfox to 9 months for the harassment offense, 6 months for each criminal trespass, and 6 months for the VCOR. This Court reversed Redfox's VCOR conviction on appeal, but we affirmed his remaining convictions. The State opted not to retry the VCOR charge, and Redfox's case proceeded to resentencing before a different judge.
AS 11.61.118(a)(2), AS 11.46.320(a)(2), and AS 11.56.757(b)(1), respectively.
Redfox v. State, 2017 WL 4334031, *3 (Alaska App. Sept. 27, 2017) (unpublished).
While Redfox's appeal was pending, the legislature amended the sentencing range for first-degree criminal trespass. When Redfox was initially sentenced, the sentencing range for this offense was 0 to 1 year. But following the amendment, and at the time of Redfox's resentencing, the sentencing range was "no more than" 30 days.
Former AS 12.55.135(a) (2013).
Former AS 12.55.135(a)(2) (May 2019).
During Redfox's resentencing hearing, the trial court determined that the new sentencing range applied to his criminal trespass convictions. The court sentenced Redfox to 30 days for each first-degree criminal trespass conviction, and 9 months for the first-degree harassment conviction. The court thus reduced the composite sentence for these offenses by a total of 10 months. Redfox now appeals this new sentence as excessive.
See State v. Stafford, 129 P.3d 927, 930-32 (Alaska App. 2006) (holding that a defendant should receive the benefit of an ameliorative sentencing law in effect at the time they are sentenced - even if not in effect at the time of the crime - unless the legislature intended a contrary result).
First, Redfox argues that his new sentences for first-degree criminal trespass are harsher than his initial sentences, violating double jeopardy principles. Redfox reasons that although his new sentences (30 days) require less jail time than his original sentences (6 months), they are relatively harsher because he is currently sentenced to the top of the sentencing range, whereas he formerly was sentenced to the middle of the sentencing range. We find no merit to this claim. The case that Redfox cites to support this relative harshness argument, Hester v. State, involves a fact pattern in which the length of the defendant's sentence was increased on resentencing. We are aware of no authority where double jeopardy was violated when the length of a defendant's sentence was reduced on resentencing.
Hester v. State, 797 P.2d 690, 692 (Alaska App. 1990) (holding that the double jeopardy clause was violated when the trial court imposed two additional years of probation on resentencing).
Second, Redfox argues that the trial court's sentencing remarks were insufficient to justify imposing the maximum sentences for first-degree criminal trespass and that the court failed to consider his prospects for rehabilitation. We disagree.
While trial courts must consider the Chaney factors, "it is only in instances where the court's remarks afford no insight into its reasons for sentencing . . . that failure to address the goals expressly will require a remand."
Smith v. State, 691 P.2d 293, 295 (Alaska App. 1984).
In this case, Redfox was on felony probation at the time he committed these new criminal offenses. At resentencing, the court chose not to impose any suspended jail time, declaring that a "flat sentence is appropriate." The court noted that Redfox entered "the [second] house and touched a woman on the buttocks in the middle of the night," and that Redfox was "intending to engage in the same behavior, just with a different person" when he entered the first house. Accordingly, the court rejected the defense attorney's assertion that the first trespass was "de minimus."
We conclude that the court adequately explained the reasons for its sentencing decision. We also conclude the court's comments were sufficient to demonstrate that it rejected further efforts toward rehabilitation in favor of a flat sentence (i.e., one with no period of probation or suspended time). We accordingly reject Redfox's claims of error.
See id.; Evans v. State, 574 P.2d 24, 26 (Alaska 1978) ("The trial court need not recite the goals of sentencing as long as it is clear that it has considered those goals."); see also Johnson v. State, 477 P.3d 665, 670-71 (Alaska App. 2020) (upholding a sentence where the court "did not expressly discuss the Chaney factors," but still "generally addressed the important circumstances of [the defendant's] cases").
The judgment of the district court is AFFIRMED.