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THE COURT OF APPEALS OF THE STATE OF ALASKA
KEVIN WHEELER, )
) Court of Appeals No. A-4825
Appellant, ) Trial Court No. 3KN-S92-738CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1325 - November 26, 1993]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Charles K.
Cranston, Judge.
Appearances: Gordon G. Goodman, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellant. Shannon D. Hanley, Assistant
District Attorney, Edward E. McNally,
District Attorney, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Kevin M. Wheeler was convicted, based upon his plea of
nolo contendere, of assault in the second degree, a class B
felony, assault in the fourth degree, a class A misdemeanor, and
harming a police dog in the second degree, a class A misdemeanor.
AS 11. 41.210(a)(1), AS 11.41.230(a)(3), and AS 11.56.710(a).
Superior Court Judge Charles K. Cranston sentenced Wheeler to the
maximum on each charge and imposed these sentences consecutively.
Wheeler, therefore, faces a composite sentence of twelve years
imprisonment. Wheeler appeals his sentence. We affirm.
On April 6, 1992 Wheeler was an inmate at the Spring
Creek Correctional Center where he was serving a composite
sentence of ten years for assault in the second degree and a
probation revocation. On the foregoing date, correctional
officers repeatedly instructed Wheeler to return to his cell
following his recreational period. Wheeler refused. Wheeler
barricaded himself on the upper level of a room and tied off the
doors with pieces of cloth. He obtained a fifty-two inch steel
bar from a weight lifting apparatus and threatened correctional
officers. Wheeler used the metal bar to shatter windows in the
area. Correctional officers gave Wheeler numerous opportunities
to return to his cell. Ultimately, six correctional
officers and a guard dog responded to subdue Wheeler. Wheeler
swung the metal bar several times as the officers approached.
One of the blows fractured the arm of a correctional officer.
Wheeler also struck the guard dog on the head and knocked the dog
unconscious. According to correctional officers, Wheeler swung
the steel bar at their heads and they believed that Wheeler was
attempting to kill or seriously injure them. The correctional
officers were eventually able to force Wheeler to the floor,
disarm him, and return him to his cell. The officer whose arm
was fractured subsequently underwent three separate corrective
surgeries. Even so, the officer's use of his arm will probably
be permanently impaired.
Wheeler was twenty-four years old at the time of
sentencing. Wheeler had an extensive juvenile record resulting
in an adjudication of delinquency and placement in various
juvenile institutions. Additionally, in November 1989, Wheeler
was convicted of two counts of assault in the third degree and
was sentenced to two years with one year suspended. In the
incident supporting this conviction, Wheeler, without
provocation, drove his car toward two juveniles who were jogging
along the roadway. Wheeler narrowly missed striking the
juveniles with his car only because they, at the last moment,
dove into a ditch at the side of the roadway. On March 12, 1990,
Wheeler was released from prison on the foregoing assault
conviction.
On March 16, 1990, within four days of being released,
and while on parole or probation, Wheeler was involved in an
attack which led to a conviction for assault in the second
degree. Again, the attack was unprovoked. Wheeler and an
accomplice broke into the residence of a woman and her boyfriend
and began beating them with baseball bats. The boyfriend managed
to obtain a knife and stabbed Wheeler's accomplice, killing him.
Wheeler fled but was later apprehended. The woman Wheeler
assaulted contended that Wheeler attempted to kill her by
severely beating her with a baseball bat. The woman also
suggested that her former husband may have hired Wheeler to kill
her and her boyfriend. Wheeler was ultimately sentenced to ten
years imprisonment for assault in the second degree and a
probation revocation. Wheeler was serving this sentence at the
time he committed the assaults in the instant case.
As a third felony offender convicted of a class B
felony, Wheeler faced a presumptive sentence of six years. AS
12.55.125(d)(2). Judge Cranston found five aggravating factors
present in Wheeler's offense: (1) Wheeler had committed the
assaults using a dangerous instrument; (2) he created a risk of
physical injury to three or more persons; (3) he had a prior
history of assaultive behavior; (4) he knowingly directed his
conduct at correctional officers; and (5) Wheeler had been
adjudicated as a juvenile for offenses that would have been a
felony had he been an adult. AS 12.55.155(c)(4), (6), (8), (13),
(19). Judge Cranston also found that Wheeler's offense was among
the most serious conduct included in the definition of the
offense, that Wheeler had instigated and encouraged the
confrontation with correctional officers, and that the incident
was extremely serious. Judge Cranston reasoned that the
foregoing factors, coupled with Wheeler's past history of
assaultive behavior, demonstrated that Wheeler was a serious
threat to society and a worst possible offender. Judge Cranston
concluded that he should impose maximum consecutive sentences.
Wheeler points out that his overall sentence exceeds
the maximum sentence permitted for his single most serious
offense. Wheeler argues that a court may only sentence an
offender to imprisonment for a term greater than the maximum
sentence for the offender's most serious offense if the
sentencing judge makes a finding that the sentence is necessary
to protect the public. Mutschler v. State, 560 P.2d 377, 381
(Alaska 1977); DeGross v. State, 816 P.2d 212, 216 (Alaska App.
1991). We believe, however, that Judge Cranston's findings in
this case are sufficient to justify the sentence which he
imposed. See Neal v. State, 628 P.2d 19, 21 (Alaska App. 1981)
(appellate court may infer a Mutschler finding from the record
when the record clearly establishes the court's reasons for
imposing the sentence). Judge Cranston could properly conclude
that this was an extremely serious offense involving
premeditation and extreme violence toward correctional officers.
This serious incident, combined with Wheeler's history of serious
criminal assaults, justifies the sentence which Judge Cranston
imposed. We conclude that the sentence is not clearly mistaken.
The sentence is AFFIRMED.
