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THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL SCOTT BLAND, )
) Court of Appeals No. A-4383
Appellant, ) Trial Court No. 1KE-S89-927CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1282 - February 12, 1993]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Ketchikan, Thomas E. Schulz, Judge.
Appearances: Mary P. Treiber, Assistant
Public Defender, Ketchikan, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Stephen R. West, Assistant
District Attorney, Ketchikan, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Daniel Scott Bland was convicted in Ketchikan in 1989
of second-degree theft, a class C felony. AS 11.46.130(a)(2),
(b). Superior Court Judge Thomas Schulz sentenced Bland, a first
felony offender, to a term of four years with three years
suspended.
After serving the unsuspended portion of his sentence
and being released on probation, Bland absconded. The state
petitioned to revoke probation, alleging that he had violated the
conditions of his probation by failing to report to his probation
officer and changing his place of residence without prior
approval. Based on the petition, a warrant was issued for
Bland's arrest.
Bland remained at large for approximately a year
before being arrested on the probation revocation warrant in
Palmer. He was returned to Ketchikan and admitted the
allegations of the probation revocation petition. At his
disposition hearing, Bland stated that he was unwilling to spend
any further time on probation. Bland requested Judge Schulz to
impose the suspended portion of his sentence, expressly conceding
that his probation violations established good cause to revoke
his probation and that they would justify sentencing him to the
three-year term that was originally suspended.1 Bland insisted,
moreover, that he had the right to decline any sentence involving
further time on probation.
Judge Schulz carefully explained to Bland that the
probation violations he had committed would not normally result
in the imposition of the full suspended portion of his sentence.
Bland assured the court that he was aware of this but
nevertheless insisted on being sentenced to the remaining portion
of his term, so that no time would remain suspended. Despite
assiduous questioning by Judge Schulz, Bland refused to be
swayed. Judge Schulz then ordered Bland's probation revoked and
imposed the balance of his suspended term. Bland appeals,
contending that the sentence is excessive. We affirm.
On appeal, Bland challenges his sentence as excessive
because his total term -- four years -- violates the rule of
Austin v. State, 627 P.2d 657 (Alaska App. 1981). In Austin, we
held that "[n]ormally a first offender should receive a more
favorable sentence than the presumptive sentence for a second
offender." Id. at 657-58. We indicated that this rule should be
deviated from only in exceptional cases. Id. at 658.
Subsequently, in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska
App. 1983), we clarified that an "exceptional case" for purposes
of the Austin rule is one in which there are significant
aggravating factors as specified in AS 12.55.155(c), or the kind
of extraordinary circumstances that would warrant referral to the
three-judge panel, under AS 12.55.165 - .175, for enhancement of
the presumptive term.
More recently, we have held that, before receiving an
exceptional sentence under the Austin rule, a first offender is
entitled to advance notice of the aggravating factors or
extraordinary circumstances to be relied on by the sentencing
court. Wylie v. State, 797 P.2d 651, 662 & n.9 (Alaska App.
1990); see also Collins v. State, 816 P.2d 1383, 1384-85 (Alaska
App. 1991).2
Austin's fundamental policy of protecting first
offenders against harsher treatment than similarly situated
second offenders continues to apply when a first offender is
sentenced for a probation violation. See, e.g., Luepke v. State,
765 P.2d 988, 990-91 (Alaska App. 1988). In such a case,
however, the probation violation itself may be indicative of the
offender's poor prospects for rehabilitation; this factor, either
alone or in conjunction with other factors, may be deemed an
extraordinary circumstance justifying the imposition of a
sentence in excess of the Austin limits. Witt v. State, 725 P.2d
723, 724 (Alaska App. 1986).
As we stated in Chrisman v. State, 789 P.2d 370 (Alaska
App. 1990):
[W]hen a history of probation violations
establishes a person's poor prospects for
rehabilitation, that fact may be deemed an
extraordinary circumstance justifying the
imposition of a sentence in excess of the
Austin limits. . . .
The relevant question in such cases is
whether the totality of the circumstances
upon revocation of probation would have
justified a sentence in excess of the Austin
limits if known when the original sentence
was imposed. Before finding that an
offender's probation violations justify a
total sentence exceeding the applicable
presumptive term for a second felony
offender, the sentencing court must conclude
that the offender's poor conduct on
probation, when viewed in conjunction with
all of the originally available sentencing
information, renders the case even more
serious -- and therefore deserving of even
greater punishment -- than the case of a
typical second felony offender committing a
typical offense of the same class.
Id. at 371 (citation omitted).
Both this court and the Alaska Supreme Court have
recognized that an offender has the right to reject probation and
elect to serve the full sentence of imprisonment imposed by the
court. Brown v. State, 559 P.2d 107, 111 n.13 (Alaska 1977);
State v. Staael, 807 P.2d 513, 516 (Alaska App. 1991); Alfred v.
State, 758 P.2d 130, 131 (Alaska App. 1988). These decisions do
not call for any significant departure from the foregoing
sentencing framework.
The election to serve a sentence of imprisonment with
no time suspended -- especially when accompanied by a stated
unwillingness to submit to probationary supervision -- certainly
reflects on an offender's prospects for rehabilitation and, to
that extent, may properly be considered by the sentencing court.
However, the court must avoid giving undue prominence to an
offender's aversion to probation. In cases to which the Austin
rule applies, the election to forego probation in favor of
incarceration does not in and of itself justify reflexively
imposing a sentence that exceeds the normal Austin limit.
An offender who elects imprisonment over probationary
supervision sentence does not thereby forfeit the right to a
sentence that is reasonable under the totality of the
circumstances of the case. Regardless of whether a sentence is
probationary or non-probationary, it must comport with the
sentencing principles articulated in State v. Chaney, 477 P.2d
441, 443-44 (Alaska 1970) and AS 12.55.005.3 And, if the
sentence involves a first felony offender who is not subject to
presumptive sentencing, it must comply with the requirements of
Austin v. State.
In this regard, it is important to recall that the
chief concern of the Austin rule is to assure that first felony
offenders who are not subject to presumptive sentencing do not
receive harsher punishment than similarly situated offenders with
prior felony convictions, to whom presumptive sentencing applies.
Under Alaska's presumptive sentencing scheme, willingness to
undergo probationary supervision, or reluctance to do so, are
largely irrelevant. Since an offender's declared reluctance to
be placed under probationary supervision is not one of the
statutory aggravating factors listed in AS 12.55.155(c), a
sentencing court cannot enhance the presumptive term of a second
or subsequent felony offender based solely on the offender's
preference for a sentence involving incarceration with no
suspended time and no probation.
Indeed, absent statutory aggravating or mitigating
factors or extraordinary circumstances warranting referral to the
three-judge panel, the presumptive sentencing statutes require
the court to impose the applicable presumptive term, with no time
suspended and no probation, regardless of the offender's
preference for or willingness to accept probationary supervision.
Reliance on a first felony offender's preference for
incarceration over probation as a basis for justifying a sentence
in excess of the applicable presumptive term for a similarly
situated second felony offender would thus be anomalous,
effectively penalizing the first offender for not having
previously been convicted of a felony. In the
present case, Judge Schulz' decision to impose the full three
years of Bland's suspended sentence resulted in a total sentence
of four years of unsuspended imprisonment. Since Bland was
nominally a first felony offender, this sentence unquestionably
exceeded the normally applicable two-year Austin limit for a
class C felony. At no point -- either in his original sentencing
remarks or in imposing sentence upon revoking Bland's probation -
- did Judge Schulz expressly find any statutory aggravating
factors or exceptional circumstances warranting referral to the
three-judge panel; hence, Bland's current sentence was imposed in
violation of the Austin rule.
While such a violation would ordinarily require a
remand for resentencing, the unique circumstances of Bland's case
compel us to reach a different result. Bland's preference for a
non-probationary sentence did not preclude him from arguing below
--as he now argues -- for compliance with Austin. Nor was Bland
barred from arguing that a total sentence of four years was
unjustified under the totality of the evidence in his case.
However, Bland raised no such arguments at his sentencing
hearing. At no point did Bland argue for or request a sentence
other than the one he now seeks to challenge. To the contrary,
Bland received precisely the sentence he asked for.
Had Bland advanced arguments below similar to those he
now seeks to raise on appeal, he would obviously be entitled to
full appellate review of his claims. Even if Bland had remained
wholly neutral and declined to take any position as to what
sentence was appropriate in light of his refusal to undergo
further probation, his right to a full appellate review of his
claims would be difficult to question. In that event, Bland's
claim on appeal that his sentence is excessive would not have
been inconsistent with the position he asserted before the
superior court. Since the sentencing court's duty to impose a
reasonable sentence does not hinge on a specific request by the
accused, Bland's adoption of a neutral stance at the sentencing
hearing would have provided no occasion to preclude him from
challenging the reasonableness of the sentence he actually
received.
Here, however, Bland clearly went beyond a neutral
stance on the issue of what term Judge Schulz should impose. As
we have already indicated, Bland affirmatively conceded that his
probation violations supported the imposition of the full period
of suspended incarceration. He repeatedly expressed his
willingness to serve the full term, insisted on his right to be
sentenced to it, and doggedly refused to acknowledge any other
alternative.
Bland's current claim of excessiveness thus seems
blatantly inconsistent with the position he affirmatively
asserted before the superior court. Bland offers no explanation
or justification for the inconsistency. To the extent that the
sentencing court may have erred in imposing an excessive
sentence, Bland plainly invited the error and did all he could to
assure its commission. Under these circumstances, we find it
inappropriate to entertain Bland's sentencing argument except
insofar as it demonstrates plain error. Cf. Collins v. State,
816 P.2d 1383, 1385 (Alaska App. 1991); Dymenstein v. State, 720
P.2d 42, 45 (Alaska App. 1986).
The incident that led to Bland's conviction of second-
degree theft in this case, and to his ultimate sentence of four
years, is in itself unremarkable: Bland attempted to pawn a
handgun. The pawnshop owner called the police because Bland
appeared to be intoxicated. Upon arrival, the police determined
the gun in Bland's possession had been stolen.
In contrast to the unremarkable conduct involved in his
offense, Bland's criminal history is far from unremarkable.
Bland has an extensive record of misdemeanor theft and driving
offenses in Alaska and Oregon. In addition, he has two prior
felony convictions in Oregon. While these convictions do not
qualify for purposes of triggering Alaska's presumptive
sentencing statutes because they are for crimes that would be
classified as misdemeanors under Alaska law, they are
nevertheless significant for purposes of sentencing Bland as a
first offender. The fact that Bland has persisted in violating
the law after twice being convicted and punished as a felon in
Oregon provides strong evidence that he cannot readily be
deterred and that his prospects for rehabilitation are
significantly worse than those of a typical first felony
offender.
Much, if not all, of Bland's prior criminality appears
to be alcohol-related. Yet according to Bland's presentence
report, Bland has repeatedly failed at various efforts to address
his substance abuse problems. After absconding from probation in
the present case, Bland continued to abuse alcohol and was
convicted of another misdemeanor theft. The presentence report
indicates that Bland is extremely deceptive and manipulative.
In short, the sentencing record discloses strong
evidence indicating that Bland's prospects for rehabilitation are
extraordinarily poor for a first felony offender; there is
little, if any, evidence suggesting any realistic hope of reform.
In originally sentencing Bland to a term of four years
with three years suspended, Judge Schulz emphasized that, in his
view, Bland's criminal history would have justified imposition of
the full four years. Although Judge Schulz expressed a
willingness to give Bland the benefit of the doubt by suspending
the major portion of the term, thereby providing him with another
opportunity for rehabilitation, the judge cautioned that he would
not hesitate to impose the full sentence if Bland violated the
conditions of his probation. In revoking Bland's probation,
Judge Schulz referred to his original sentencing remarks, again
emphasizing that, in his view, Bland's criminal history and
failures at rehabilitation justified the imposition of the full,
four-year sentence.
We nevertheless recognize that Bland's total term of
four years is exceptionally severe, even when allowances are made
for his extensive criminal history. Bland's sentence subjects
him to punishment that is substantially harsher than he might
have received under the presumptive sentencing statutes, even if
he had been treated as having two previous felony convictions.
See AS 12.55.125(e) (fixing the presumptive term for a class C
felony committed by a third or subsequent felony offender at
three years). Had Bland's affirmative request for imposition of
the full suspended term not foreclosed the development of a more
complete sentencing record, our independent review of that record
under the standard established in McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974), might have led us to conclude that Bland's
sentence is clearly mistaken.
Given the circumstances of Bland's case, however, it
would difficult to conclude that Judge Schulz committed plain
error in determining that a total term of four years was
appropriate for Bland. On review of the current record for plain
error, we find the sentence at least arguably appropriate;
accordingly, we find no plain error.
Our conclusion does not preclude Bland from seeking
further relief from the sentencing court. If Bland believes that
he has a meritorious argument, he will be free, upon remand, to
move for reduction of his sentence under Alaska Criminal Rule
35(a). Whatever the merits of Bland's arguments might be,
however, Bland should not be permitted to assert those arguments
on appeal before they have been presented to and considered by
the sentencing court.
The sentence is AFFIRMED.
_______________________________
1. Bland's counsel summarized Bland's position to be "that
there's good cause based on what admissions there have been to
revoke his probation and impose the balance of the jail time."
2. Although we have recognized that factual determinations
relating to sentencing decisions are generally governed by the
preponderance of evidence standard, Brakes v. State, 796 P.2d
1368, 1372 n.5 (Alaska App. 1990), we have held that, for Austin
rule purposes, aggravating factors or extraordinary circumstances
must be proved by clear and convincing evidence, the same
standard that would apply under AS 12.55.155(f) to a presumptive
sentencing case. Buoy v. State, 818 P.2d 1165, 1167-68 (Alaska
App. 1991).
3. In State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970),
the Alaska Supreme Court articulated sentencing goals to be
considered by the court in all cases. Those goals include
rehabilitation, general and special deterrence, reaffirmation of
societal norms (or community condemnation), and isolation for the
protection of the public. Alaska Statute 12.55.005, which
expounds on the Chaney criteria, provides that the sentencing
court shall consider:
(1) the seriousness of the defendant's
present offense in relation to other
offenses;
(2) the prior criminal history of the
defendant and the likelihood of
rehabilitation;
(3) the need to confine the defendant
to prevent further harm to the public;
(4) the circumstances of the offense
and the extent to which the offense harmed
the victim or endangered the public safety or
order;
(5) the effect of the sentence to be
imposed in deterring the defendant or other
members of society from future criminal
conduct; and
(6) the effect of the sentence to be
imposed as a community condemnation of the
criminal act and as a reaffirmation of
societal norms.
