Summary
noting that "a portable electronic storage device" is "popularly known as a computer thumb drive, flash drive, or jump drive"
Summary of this case from United States v. GumbsOpinion
Court of Appeals No. A-11382 Trial Court No. 3AN-12-7336 CR No. 5949
05-22-2013
CHARLES K. STOKES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Lindsay C.U. Van Gorkom, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marika Athens, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael 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
AND JUDGMENT
Appeal from the District Court, Third Judicial District, Anchorage, Jo-Ann Chung, Judge.
Appearances: Lindsay C.U. Van Gorkom, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marika Athens, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge COATS.
Charles K. Stokes was convicted of second-degree failure to register as a sex offender and sentenced to 330 days. He argues his sentence is excessive. Specifically, he claims the judge did not tailor his sentence to his offense and did not give proper weight to his prospects for rehabilitation. For the reasons explained below, we affirm Stokes's sentence.
AS 11.56.840(a).
Facts and proceedings
On July 20, 2012, the Anchorage Police Department received reports that a man had approached young children at a Boys and Girls Club near a public library and had followed young girls into a Taco Bell restaurant. Based on their investigation, officers contacted Stokes. They searched him and found a pocket knife and a portable electronic storage device (popularly known as a computer thumb drive, flash drive, or jump drive). Stokes initially claimed he found the storage device, but when confronted by the police, he admitted it was his. The Anchorage Police Department reviewed the contents of the storage device and found a picture of Stokes and a file containing "literally hundreds, if not thousands, of images of either child pornography or child erotica." The police also learned that Stokes was a convicted sex offender and that he was not in compliance with his sex offender registration requirements.
The State charged Stokes with second-degree failure to register as a sex offender, which is a class A misdemeanor. Stokes pleaded no contest to the charge without an agreement on his sentence. The mandatory minimum sentence for this crime is 35 days, and the maximum sentence is 1 year.
AS 11.56.840(a), (c).
AS 12.55.135(h); AS 12.55.135(a).
Stokes had three prior convictions for second-degree sexual abuse of a minor and a prior conviction for possessing child pornography. He also had a conviction for driving without a license and 1994 felony convictions for damaging property, larceny, burglary, and receiving stolen property.
Stokes had been released from jail for his most recent offense in 2007 or 2008 and had not been charged with any new crimes until this case in 2012. He apparently had kept his sex offender registration current until shortly before this charge.
The State argued that the sentencing court should impose the maximum sentence of 1 year in jail because of Stokes's poor prospects for rehabilitation and his significant criminal history. The State asserted that, at the time Stokes was arrested for his failure to register, he was engaging in predatory conduct toward young children and was in possession of a significant quantity of child pornography or erotica, suggesting, in the State's view, that he posed an ongoing danger to young children.
Stokes's attorney argued that the court should only sentence him for the crime he was convicted of — failure to register as a sex offender — and not for his alleged possession of child erotica or pornography. The attorney pointed out that the State could charge Stokes separately for that conduct, if the evidence actually showed he possessed illegal material. She emphasized that this was Stokes's first conviction for failure to register as a sex offender and his first arrest since his release from jail in 2007 or 2008. In his allocution, Stokes told the court that he had simply miscalculated his sex offender registration deadline, thinking it was due in August when it was actually due in June.
District Court Judge Jo-Ann Chung imposed Stokes's sentence. Judge Chung agreed that she should not sentence Stokes for possession of child erotica or pornography; she said, "I'm not sentencing you [for] possession of child pornography, as that's being investigated. It's really the failure to register." But Judge Chung ruled that she could consider Stokes's surrounding conduct and the fact that Stokes's failure to register "does present danger to children." She found that Stokes's crime was aggravated, and she emphasized deterrence of Stokes and others, community condemnation, and protection of the community in sentencing him to 330 days to serve.
Why Stokes's sentence is not clearly mistaken
Stokes argues that Judge Chung erred in considering his behavior with respect to the children at the library or the restaurant and his possession of child pornography or erotica in sentencing him. He contends that she should only have considered his conduct of failing to register as a sex offender. He also argues that Judge Chung did not sufficiently consider his prospects for rehabilitation.
Stokes relies on Maal v. State for his argument that the district court should have ignored his surrounding behavior in sentencing him for failure to register. In Maal, we held that the trial court placed undue weight on a single factor in sentencing. We noted that "[a]ll of the circumstances, both favorable and unfavorable, are significant in the determination of an appropriate sentence." Although Stokes relies on Maal to argue that Judge Chung should not have considered all of the circumstances of his crime in sentencing him, Maal stands for the opposite proposition that a trial court should consider all of the circumstances of an offense in fashioning a sentence.
670 P.2d 708 (Alaska App. 1983).
Id. at 711-12.
Id. at 712.
We also find no merit to Stokes's claim that Judge Chung did not give sufficient weight to his prospects for rehabilitation. Judge Chung acknowledged that a number of years had passed since Stokes had been released from jail for his most recent conviction. But she was nevertheless skeptical of Stokes's prospects for rehabilitation because of his extensive criminal history.
Judge Chung found that Stokes's offense was aggravated, and, in sentencing him, she emphasized several sentencing goals: the community's condemnation of Stokes's crime, as well as the need to deter Stokes, and others, from committing the same crime in the future. She also concluded that isolating Stokes was necessary to protect the public. Given Stokes's serious criminal record and the circumstances of his current offense, the sentencing judge could reasonably consider these factors as the primary sentencing goals.
We conclude that Stokes's sentence is not clearly mistaken.
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).
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Conclusion
The judgment of the district court is AFFIRMED.