Phillipv.State

COURT OF APPEALS OF THE STATE OF ALASKAFeb 24, 2016
Court of Appeals No. A-12148 (Alaska Ct. App. Feb. 24, 2016)

Court of Appeals No. A-12148 No. 6285

02-24-2016

JOHN EDGAR PHILLIP, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Windy Hannaman, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. William M. Perry, Assistant District Attorney, Palmer, and Craig W. Richards, 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. Trial Court No. 3PA-13-2266 CR

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Appearances: Windy Hannaman, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. William M. Perry, Assistant District Attorney, Palmer, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.

The superior court imposed the maximum 5-year sentence for John Edgar Phillip's conviction of third-degree assault. Phillip appeals this sentence, claiming that the superior court did not make the necessary "worst offender" finding to impose a maximum sentence, and that the 5-year sentence is excessive. We affirm the sentence.

AS 11.41.220(a)(1)(B).

Phillip's current conviction arose from his August 2013 assault of Anastasia Evan with nunchucks while Phillip was intoxicated. Their 8-year-old son witnessed the assault.

See Cavanaugh v. State, 754 P.2d 757, 758 n.1 (Alaska App. 1988) (explaining that nunchucks are two sticks joined by a short cord or chain and used as a martial-arts weapon).

This is Phillip's fifth felony conviction. He has a 2006 felony conviction for selling alcohol in a local-option area without a license, a 1992 third-degree assault conviction, a 1983 second-degree assault conviction, and a 1983 third-degree assault conviction. Phillip also has four misdemeanor convictions for fourth-degree assault: one from 2009, one from 2003, and two from 1998. Anastasia Evan, the victim of his current offense, was also the victim of one of the 1998 assaults. The victims in all of Phillip's other assault cases — felony and misdemeanor — have also been women.

Phillip has seventeen other misdemeanor convictions. Three of the seventeen are for driving under the influence, one of which Phillip committed in 2013.

Superior Court Judge Vanessa White found that Phillip had a "long pattern" of assaultive and other dangerous behaviors while consuming alcohol. She found that Phillip's continued alcohol dependence, plus his earlier diagnosis of antisocial personality disorder, presented a "tremendous danger to those around him." She found that "isolation ha[d] to be the most important consideration" in sentencing Phillip, followed by general deterrence and community condemnation. Based on Phillip's history, Phillip's age of 53, and Phillip's current conviction for what the judge found was a "very, very serious assault," the judge imposed the maximum sentence of 5 years.

See AS 12.55.005 (factors a court to consider in sentencing a defendant).

AS 11.41.220(e) (third-degree assault is a class C felony); AS 12.55.125(e) (maximum sentence for a class C felony is 5 years).

A worst-offender finding can be based on a defendant's current conviction, his history, or a combination of both. The finding ensures that the sentencing judge has fully assessed the defendant and his background before choosing to impose the maximum penalty for the offense. In making a worst-offender finding, the sentencing court should consider the age of the defendant, his criminal history, any drug and alcohol addiction, and "behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public." Though an express worst-offender finding is normally required when imposing a maximum sentence, this Court will not reverse the sentence if the defendant's status as a worst offender is apparent from the record.

Tuckfield v. State, 621 P.2d 1350, 1353 (Alaska 1981); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).

State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

See Walls v. State, 598 P.2d 949, 951 (Alaska 1979).

The superior court's remarks at the sentencing hearing clearly show that the court considered Phillip to be a worst offender. Based on the record before us, the court's decision to impose the maximum sentence is not clearly mistaken.

See State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (appellate court applies the clearly mistaken standard of review to an excessive-sentence claim). --------

We AFFIRM the judgment of the superior court.