Opinion
No. 5927
03-27-2013
MENES ALEXANDER WEIGHTMAN, Appellant, v. STATE OF ALASKA, Appellee.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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 authority for any proposition of law.
Court of Appeals Nos. A-10983 & A-11073
Trial Court Nos. 3AN-10-9118 CR
& 3AN-09-7190 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Nancy J. Nolan and Stephanie Rhoades, Judges.
Appearances: Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Judge MANNHEIMER.
In December 2010, Menes Alexander Weightman assaulted Derek Scroggins, his teenage stepson. Based on this crime, Weightman's probation was revoked in several earlier cases. Weightman now appeals the composite sentence he received for the new crime and the probation violations. Weightman also appeals one of the conditions of his probation: that he have no contact with his stepson, Derek, unless he obtains Derek's prior approval for that contact. (The probation condition further provides that when Weightman wishes to seek Derek's approval for a contact, Weightman must communicate through Derek's grandfather (Weightman's father-in-law)).
For the reasons explained in this opinion, we affirm Weightman's composite sentence and the challenged condition of probation.
Underlying procedural facts
As we explained earlier, Weightman assaulted his stepson Derek in December 2010.
At the time of this December 2010 assault, Weightman was on probation for an assault he committed four months earlier, in August 2010, against his wife Kerri (Derek's mother). In that August 2010 episode, Weightman slapped, punched, and strangled Kerri.
Weightman was also on probation for crimes he committed in June 2009, when Kerri was his girlfriend and not yet his wife. In that June 2009 episode, Weightman assaulted Derek (dragging him from his bicycle, throwing him against a shed, and holding him there by his neck). In that same episode, Weightman also maliciously destroyed the glass door to Kerri's home and her glass stove top.
Indeed, Weightman was on probation in three other cases — a total of five different cases — when he committed the December 2010 assault.
Returning to the December 2010 assault, Weightman pleaded no contest to this crime, and in February 2011 he was sentenced by District Court Judge Nancy J. Nolan. Judge Nolan sentenced Weightman to 360 days' imprisonment with 150 days suspended (210 days to serve). At the same time, Judge Nolan revoked Weightman's probation in some of his earlier cases — but not the June 2009 case or the August 2010 case. For the probation violations in these other cases, Judge Nolan imposed a consecutive total of 180 days' imprisonment.
Two months later, in April 2011, District Court Judge Stephanie L. Rhoades sentenced Weightman for his violation of probation in the June 2009 case and the August 2010 case. In the June 2009 case, Weightman faced the imposition of 330 previously suspended days of imprisonment for criminal mischief, and faced the imposition of 180 previously suspended days of imprisonment for assault. Judge Rhoades imposed 50 days for the criminal mischief, leaving 280 days still suspended. She then imposed all of the 180 days for the assault. In the August 2010 case, Weightman faced the imposition of 210 previously suspended days of imprisonment for assault. Judge Rhoades imposed all 210 days.
In addition, Judge Rhoades modified Weightman's conditions of probation in the June 2009 case, adding the condition that Weightman have no contact with Derek Scroggins without Derek's consent until Derek turns eighteen. Under Judge Rhoades's order, if Derek wishes to have contact with Weightman, he must communicate his permission through an intermediary — Derek's maternal grandfather. (Judge Rhoades allowed Derek to select the adult who would handle this matter.)
One month after Judge Rhoades imposed this no-contact order, Weightman violated the order by sending a letter to Derek from prison. Based on this conduct, the State asked the court to again revoke Weightman's probation in the August 2011 case. At the revocation hearing, Weightman asserted that he acted innocently—that he wrote the letter to Derek after his wife Kerri (Derek's mother) told him that she had filed paperwork allowing him to have contact with the boy. Judge Rhoades rejected this explanation and found that Weightman had knowingly violated the no-contact order. She imposed another 20 days of Weightman's suspended jail time, leaving him with 260 days suspended.
Other underlying facts
At the disposition hearing in front of Judge Rhoades, the State presented evidence of several episodes in which Weightman assaulted either Kerri, or her son Derek, or both of them. Derek took the stand and testified that Weightman "sometimes ... just goes crazy" when he is drunk, and that Weightman was capable of badly hurting him or his mother. Derek told the court that he lived in fear because he never knew when Weightman would show up at his house, and he never knew what Weightman "[was] going to do next". Derek stated that even though Weightman was now married to his mother, he no longer wished to have a filial relationship with Weightman.
Derek's maternal grandfather (i.e., Kerri's father), Melford Christianson, testified that Derek would "freeze[] up" when Weightman came into the same room, and that Derek was doing much better, both personally and at school, now that Weightman was in jail. Christianson agreed that Weightman was "big trouble" when he drank, and Christianson thought that Weightman posed a danger to both Kerri and Derek.
Kerri's sister also testified at the hearing. She told Judge Rhoades that there had been many times when she had gone to Kerri's house because of an altercation with Weightman. Many times, she had heard Weightman promise, "I won't do this again", and Weightman had repeatedly broken this promise.
In contrast, Kerri wrote a letter to the court in support of Weightman. Kerri told the court that she believed in Weightman, and that she wanted her family — i.e., Weightman, herself, and her son Derek — to be together.
In his allocution, Weightman conceded that he had a drinking problem, but he declared that he loved his family and he did not wish to hurt them anymore. Weightman told Judge Rhoades that, if Derek was scared of him, he would promise not to go back to Kerri's house.
As we noted earlier, Weightman violated Judge Rhoades's no-contact order just one month later, by writing a letter to Derek from prison. Although Weightman testified that he acted innocently, because Kerri had told him that it was all right to contact Derek, Judge Rhoades found that Weightman knowingly violated her order.
At this latter revocation hearing (held in June 2011), Weightman voiced a continuing objection to the no-contact order. He argued that, by issuing this order, Judge Rhoades had infringed Kerri's rights as Derek's mother—apparently, Kerri's purported right to decide that Weightman should have access to her son.
Judge Rhoades refused to lift the no-contact order. She found that Weightman posed a continuing danger to Derek, and she further found that Kerri had failed — and would probably continue to fail — to protect Derek.
Weightman's arguments on appeal
Weightman challenges the 440-day composite sentence he received for his most recent crime (the December 2010 assault) and the various revocations of his probation from earlier crimes. Weightman also challenges Judge Rhoades's finding that he was a "worst offender" for purposes of his June 2009 and August 2010 assault convictions.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (defining the concept of "worst offender" for purposes of Alaska sentencing law).
Taking these arguments in reverse order, Judge Rhoades declared that Weightman was a "worst offender" based on his history of multiple assaults upon Kerri and Derek, the fact that these assaults were crimes of domestic violence, and the fact that Weightman committed these multiple assaults over a relatively short period of time. In addition, Weightman committed several of these assaults while he was on probation for earlier assaults. This record amply supports Judge Rhoades's conclusion that Weightman qualified as a "worst offender" for sentencing purposes.
With regard to whether Weightman's composite sentence of 440 days' imprisonment is excessive, the test we apply is whether Weightman's combined sentence is clearly mistaken, given the whole of his conduct and history. In light of Weightman's history of repeatedly assaulting both Kerri and Derek, and his failures to be deterred by his past criminal sentences or his ongoing conditions of probation, we conclude that Weightman's composite sentence is not clearly mistaken.
See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
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).
Finally, Weightman challenges the no-contact order that Judge Rhoades imposed as one of the conditions of probation in Weightman's June 2009 case. As we have explained, this no-contact order bars Weightman from having contact with Derek unless Derek consents beforehand, and it requires Derek to communicate his consent for such a contact through an intermediary (Derek's grandfather).
(In his brief to this Court, Weightman characterizes Judge Rhoades's order as requiring Weightman to obtain the grandfather's consent for any contact with Derek. This is a misreading of what Judge Rhoades said. The order requires Derek's consent for any contact. The grandfather's role is that of intermediary: if Derek wishes to give permission for a contact with Weightman, he must communicate that permission through his grandfather.)
Weightman argues that this order violates his constitutional right "to associate with his family", because it effectively bars him from living with his wife Kerri (Derek's mother) as long as Derek continues to live in his mother's household.
We acknowledge that the no-contact order substantially restricts Weightman's ability to live with Kerri as long as Derek continues to reside in the same household. Because of this, we must subject this order to special scrutiny — to ensure that it is supported by a real need to protect Derek, and to ensure that there is a close fit between the scope of the restriction and the need to protect Derek.
See Dawson v. State, 894 P.2d 672, 680-81 (Alaska App. 1995) (explaining the test that applies to conditions of probation that restrict a defendant's family life or associations).
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Here, Weightman has repeatedly assaulted Derek, despite prior convictions and prior promises to reform, and in violation of prior conditions of probation. Weightman's behavior is apparently influenced to a substantial degree by his problem with alcohol, but he has proven unable to address this problem. Judge Rhoades found that Weightman's prospects for rehabilitation are not good, and she further found that Derek can not depend on his mother, Kerri, to protect him. Kerri has herself been the victim of Weightman's assaultive behavior, but she continues to support him, and Judge Rhoades found that she has not been protective of her son.
Given this record, and given Judge Rhoades's findings, we conclude that Judge Rhoades had adequate reasons to impose the no-contact order and that, given the circumstances of this case, the order is sufficiently narrowly tailored to achieve the goal of protecting Derek from further harm. We therefore uphold the no-contact order against Weightman's challenge that it violates his right to associate with his wife, Kerri.
Weightman also contends that this order unlawfully infringes Kerri's parental right, as Derek's mother, to direct the upbringing of her son. He contends that Judge Rhoades had no personal jurisdiction over Kerri (because Kerri was not a party to the criminal litigation between the State and Weightman), and thus Judge Rhoades violated Kerri's right to due process of law when the judge entered the no-contact order, because the order effectively restricts Kerri's parental rights.
Weightman does not explain how he has standing to assert a violation of Kerri's rights, and we are not aware of any legal authority that would give Weightman standing under these circumstances.
Conclusion
The judgements of the district court are AFFIRMED.