Opinion
Court of Appeals No. A-8902.
October 26, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. Trial Court No. 4FA-S03-2001 Cr.
Lori M. Bodwell, Law Office of Lori M. Bodwell, Fairbanks, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Monte R. Stithem, a first felony offender, pleaded no contest to one count of second-degree sexual abuse of a minor, a class B felony. Superior Court Judge Mark I. Wood imposed an 8-year term with 4 years suspended, a net 4-year term to serve. Stithem contends that this sentence is excessive and that Judge Wood imposed the sentence in violation of Blakely v. Washington. Because the sentence imposed by Judge Wood does not exceed the statutory maximum as defined by Blakely, the procedural requirements of that case do not apply. Because we conclude that Stithem's sentence is not clearly mistaken, we affirm. Background and proceedings
AS 11.41.436(a)(1) (b).
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
Stithem was charged with sexually abusing his 12-year-old stepdaughter, H.B., over a period of approximately four months from December 2002 to March 2003. The grand jury indicted Stithem for three counts of second-degree sexual abuse of a minor based on this misconduct. The parties reached a plea agreement. Stithem pleaded no contest to a single consolidated count of second-degree sexual abuse of a minor.
AS 11.41.436(a)(1).
Under former AS 12.55.125(k)(2), Stithem's term of unsuspended imprisonment could not exceed the presumptive term for a second felony offender convicted of the same crime (4 years), absent proof of statutory aggravating factors or extraordinary circumstances.
See also Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981) (holding that, normally, a first felony offender convicted of a class B or C felony should receive a more favorable sentence than a second felony offender convicted of the same offense). And see Dayton v. State, ___ P.3d ___, Alaska App. Opinion No. 2009 at 2 (Sept. 16, 2005), 2005 WL 2249871 at *1 (holding that AS 12.55.125(k)(2) codified and superseded the Austin rule).
Former AS 12.55.125(d)(1).
The State alleged that four statutory aggravating factors from AS 12.55.155(c) were relevant to Stithem's sentencing: (c)(5) (Stithem knew his victim was particularly vulnerable); (c)(10) (Stithem's conduct constituting the offense was among the most serious within the definition of the offense); (c)(18)(A) (Stithem sexually abused a member of the social unit with which he resided in the same dwelling); and (c)(18)(B) (Stithem engaged in the same or other conduct prohibited by AS 11.41.410 — AS 11.41.460 with the same or another victim). The State alleged that this last aggravator was based on Stithem's abuse of three older stepdaughters, H.B., T.B., and A.W., but Stithem was not prosecuted for that misconduct. Stithem conceded aggravator (c)(18)(A), contested (c)(5) and (c)(10), but did not contest (or concede) (c)(18)(B).
See Wylie v. State, 797 P.2d 651, 662 (Alaska App. 1990).
At Stithem's sentencing hearing on June 7, 2004, Judge Wood rejected aggravators (c)(5) and (c)(10), but found (c)(18)(A) and (B). Judge Wood imposed an 8-year term with 4 years suspended, a net 4-year term to serve.
The Supreme Court issued Blakely on June 24, 2004. On June 30, 2004, Stithem filed a motion to correct an illegal sentence under Criminal Rule 35(a). Stithem argued that because Judge Wood, rather than a jury, found aggravator (c)(18)(B), his Sixth Amendment right to a jury trial was violated. Judge Wood denied the motion, noting that Stithem's unsuspended imprisonment did not exceed the 4-year limit imposed by statute.
On appeal, Stithem argues that his sentence is excessive. Stithem also renews his argument that the superior court violated Blakely when it relied on a judicially-found aggravator.
Blakely v. Washington does not apply to Stithem's sentence
Stithem argues on appeal that the superior court improperly relied on a statutory aggravating factor in violation of Blakely. We addressed this issue in State v. Gibbs. Gibbs, a first felony offender, was sentenced to 6 years with 3 years suspended for a class B felony conviction. The sentencing judge in Gibbs found a statutory aggravating factor and relied on that factor to impose sentence.
105 P.3d 145 (Alaska App. 2005).
Gibbs, 105 P.3d at 146.
Id.
Gibbs argued that although the unsuspended sentence was within the statutory range for a first felony offender under AS 12.55.155(k)(2), if her probation was revoked, her sentence would potentially violate Blakely because it would be aggravated by facts not found by a jury. We concluded that the defendant's argument was hypothetical and not ripe for review. In essence, Blakely does not apply to first felony offenders sentenced under AS 12.55.125(k)(2) "as long as the unsuspended portion of the defendant's term of imprisonment does not exceed the presumptive term that would apply to a second felony offender convicted of the same offense."
Id. at 148.
Id. ("Whatever may be the merits of Gibbs's argument regarding that future possibility, it does not alter the legality of her present sentence.").
Id. at 146 (emphasis added).
In this case, for the purposes of Blakely, the "statutory maximum" is the limit set by former AS 12.55.125(k)(2) — 4 years to serve. As in Gibbs, Stithem's 4-year unsuspended sentence did not exceed this statutory maximum. Therefore, there is no Blakely issue. In addition, as in Gibbs, the possibility that Stithem may have to serve more time is not sufficient for this court to declare his sentence a violation of Blakely. Stithem's reply brief concedes that the Gibbs decision, which was issued after Stithem filed his opening brief, is directly controlling. Because Stithem's unsuspended time did not exceed the statutory maximum for his offense, there is no Blakely issue and no error.
Stithem's sentence is not excessive
Stithem argues that his sentence was excessive because he did not have a prior criminal history and he was willing to engage in treatment. Stithem contends his 8-year sentence with 4 years suspended is excessive and that the appropriate sentence would be at the lower end of the 1- to 4-year benchmark range for typical to moderately aggravated offenses set forth in State v. Jackson. Stithem claims that 1 to 2 years of imprisonment is significant and would have satisfied the court's obligations to consider deterrence, isolation, and reaffirmation of societal norms. In addition, Stithem points out that in determining whether a sentence is excessive, this court must weigh the period of suspension as well as the period of incarceration.
776 P.2d 320, 326-27 (Alaska App. 1989).
Leuch v. State, 633 P.2d 1006, 1010 (Alaska 1981).
The State argues Stithem's sentence was not excessive based on the superior court's assessment of Stithem's poor potential for recovery, the need for deterrence and community condemnation, and Stithem's violation of a position of trust as the victim's stepfather. The State points out Stithem's counseling began at the same time he pled no contest to the charge and so was not necessarily voluntary. The State also notes that although this case is Stithem's first felony offense, Stithem has a prior history of uncharged abuse of his other stepdaughters. Finally, the State argues that the fact that Stithem has never undergone or failed treatment as a sexual offender does not speak to his potential for rehabilitation. Based on Stithem's prior abuse record, the State asserts that the sentence imposed by the superior court was not clearly mistaken.
Judge Wood evaluated the circumstances of Stithem's offense and the various sentencing criteria that applied to those circumstances. From this, Judge Wood could reasonably conclude that Stithem's offense called for a sentence at the upper end of the Jackson benchmark for a typical to moderately aggravated class B felony. We therefore hold that Stithem's sentence is not clearly mistaken. Conclusion
See McClain, 519 P.2d at 813-14.
Stithem's sentence is AFFIRMED.