Opinion
A-13632
04-27-2022
JARVIS DEANGELO WALLACE, Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 Superior Court, Third Judicial District, Trial Court No. 3AN-18-08673 CR Anchorage, Michael R. Spaan, Judge.
Dan Bair, 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 Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Jarvis Deangelo Wallace was convicted, following a jury trial, of first-degree vehicle theft and driving with a revoked license after he assisted in the theft of a truck. He also pleaded guilty to one count of violating his conditions of release. The superior court imposed a composite sentence of 24 months in jail with 21 months suspended (3 months to serve) and 3 years of supervised probation. Wallace raises two issues on appeal.
AS 11.46.360(a)(1) and AS 28.15.291(a)(2), respectively.
AS 11.56.757(a).
First, Wallace challenges a condition of probation prohibiting him from possessing "a concealed weapon, a firearm, or an illegal switchblade or gravity knife." As originally written, this condition did not include the word "illegal" and prohibited Wallace from possessing any switchblade or gravity knife. Wallace objected to the weapons condition at his sentencing hearing. He acknowledged that, as a convicted felon, he was already prohibited from possessing a concealed firearm, but he argued that there was no nexus between his crimes and the prohibition on possessing legal weapons.
The sentencing court apparently agreed, noting that the condition would be reversed on appeal "unless there's some basis . . . to impose it." The court therefore added the word "illegal" before the phrase "switchblade or gravity knife," in order to ensure that the condition only prohibited Wallace from possessing weapons that were already illegal for him to possess. After making this change, the court asked Wallace's attorney whether he had any further concerns, and the attorney indicated that he had none.
On appeal, however, Wallace points out that the condition prohibits him from possessing any "concealed weapon," even if his possession of that weapon would not otherwise be illegal. He also notes that, although the term "deadly weapon" is defined by AS 11.81.900(b)(17), the term "weapon" remains undefined, such that it is not immediately apparent what items the condition prohibits him from concealing. He accordingly asks this court to strike the portion of the condition prohibiting him from possessing concealed weapons.
Wallace does not challenge the portion of the condition prohibiting him from possessing "a firearm, or an illegal switchblade or gravity knife."
We conclude that a remand is required. It is clear from the sentencing court's comments that it did not intend to prohibit possession of legal weapons, although its intent with regard to concealed weapons is not clear. It is also unclear what items were intended to be captured by the term "weapon" and whether that term applies to items such as an ordinary pocketknife. A remand is therefore required so that these matters can be clarified.
Second, Wallace argues that the sentencing court erred when it refused to grant a suspended imposition of sentence. "Whether to impose a suspended imposition of sentence in a given case is left to the discretion of the sentencing court." We will overturn the sentencing court's determination only when it is "clearly mistaken."
Parson v. State, 404 P.3d 227, 230 (Alaska App. 2017) (citing Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976)).
Id.
Here, the sentencing court explained that it was denying Wallace's request for a suspended imposition of sentence for a number of reasons: Wallace had continued to minimize his involvement in the car theft, even after his conviction; Wallace had repeatedly violated his conditions of release, including failing to report to pretrial enforcement, failing to report for his drug testing, and tampering with his ankle monitor; and Wallace had been charged with a new count of vehicle theft prior to sentencing in this case. Given these facts, we conclude that the court's denial of Wallace's request for a suspended imposition of sentence was not clearly mistaken.
This matter is REMANDED to the superior court so that it may address Wallace's objection to the portion of General Condition No. 5 that prohibits him from possessing a "concealed weapon." In all other respects, the judgment of the superior court is AFFIRMED.