Pointer v. Municipality of Anchorage (6/7/91) ap-1136
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before publication in the Pacific Reporter.
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THE COURT OF APPEALS OF THE STATE OF ALASKA
NATHANIEL POINTER, )
) Court of Appeals No. A-3834
Appellant, ) Trial Court No. 3AN-M90-4252CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1136 - June 7, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District,
Anchorage, J. Justin Ripley, Judge.
Appearances: Stuart G. Ross, Gorton &
Oberly, Anchorage, for Appellant. Cesar O.
Velasquez, Assistant Municipal Prosecutor,
and Richard L. McVeigh, Municipal Attorney,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Andrews, Superior Court Judge.*
[Coats, Judge, not participating.]
BRYNER, Chief Judge.
A jury convicted Nathaniel Pointer of assault for
striking his wife three times in the face with his fist.
Anchorage Municipal Code (AMC) 08.05.030.1 Superior Court
Judge J. Justin Ripley, acting as a district court judge,
sentenced Pointer to one year with no time suspended. Pointer
appeals his sentence as excessive. We affirm.
At sentencing, the prosecutor informed the court that
Pointer had a lengthy misdemeanor record, consisting of fourteen
prior convictions: larceny in 1978; eluding a police officer in
1980; leaving the scene of an accident, driving while intoxicated
(DWI), and driving with license suspended (DWLS) in 1982; DWI,
DWLS, and eluding a police officer in 1983; reckless driving and
DWLS in 1985; assault in 1987; DWLS and failure to appear in
1989; and malicious destruction of property in 1989. The
prosecutor noted that Pointer had been assigned to the Male
Awareness Program and given a suspended imposition of sentence
for the 1987 assault. The prosecutor further noted that while
Pointer was out on bail for his current offense, he attacked his
wife with a knife, resulting in a felony assault conviction.
In sentencing Pointer to a year to serve, the court
relied heavily on Pointer's prior record, which, in the court's
view, indicated that Pointer has a substance abuse problem "of
significant magnitude," a "propensity for violence," and a
"suggestion" of a personality disorder. The court also concluded
that Pointer's conduct was "among the worst assault fours that we
could have." The court pointed out that the offense was an
unprovoked attack against a family member which resulted in some
degree of bruising and cuts to the victim's mouth. The court
further noted that Pointer had not benefitted from the Male
Awareness Program, either because he did not attend or he did not
learn. Under the circumstances, the court found that Pointer
qualified as a worst offender.
On appeal, Pointer challenges the imposition of the
maximum sentence on a number of grounds. Pointer notes that his
misdemeanor record consists largely of driving-related rather
than assault-type offenses. Pointer further contends the court's
imposition of a suspended imposition of sentence for the 1987
assault, and the municipality's offer of a suspended sentence
prior to trial in this case, establish that neither offense was
particularly serious. In Pointer's view, because he has not yet
served any jail time for this type of conduct, his deterrence
capabilities have not yet been tested. Pointer also analogizes
his misdemeanor assault convictions to a DWI conviction and
points out that the legislature does not require a DWI offender
to serve 365 days as a minimum sentence until he has been
convicted of DWI six times. Pointer also contends that the court
sentenced him to the maximum term only because he committed a
felony assault against his wife shortly after he committed this
offense. Finally, Pointer claims that, because Judge Ripley
ordinarily sits as a superior court judge, he is accustomed to
felony, rather than misdemeanor, sentences.
Maximum sentences are generally disfavored "without
some foundation for characterizing a defendant as the worst type
of offender." State v. Wortham, 537 P.2d 1117, 1120 (Alaska
1975). Some of the factors relevant to a worst-offender finding
are:
[P]rior criminal convictions, age, military
records, employment history, drug or alcohol
addiction, presentence report evaluations and
recommendations, and behavior which has been
considered to demonstrate an antisocial
nature or dangerous propensities which pose a
clear risk to the public.
Id.
In light of Pointer's extensive misdemeanor record, the
sentencing court did not err in classifying him as a worst
offender. The court did not place undue emphasis on the
subsequent felony assault conviction but instead appeared to
focus primarily on Pointer's prior criminal history. The record
on appeal provides no support for Pointer's contention that his
sentence was influenced because Judge Ripley ordinarily presides
over superior court, rather than district court cases. Judge
Ripley's sentencing remarks indicate that he carefully considered
each of the Chaney criteria. The court was under no obligation
to impose the sentence offered as part of a plea agreement by the
prosecutor prior to trial. We find no merit in Pointer's
suggestion that the sentencing court must wait until a defendant
commits his sixth assault before imposing a maximum sentence.
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974). The sentence is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. AMC 08.05.030 provides in part:
Assault.
A.It is unlawful for any person to commit an
assault.
B. An assault is:
1.an intentional or reckless use of
force or violence upon the person
of another; or
2.an intentional or reckless use of
force, which creates a reasonable
apprehension of immediate physical
injury to the person of another.
