NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY T. ROATH, )
) Court of Appeals No. A-5076
Appellant, ) Trial Court No. 3AN-S93-5170CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1347 - May 27, 1994]
________________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Gregory Motyka,
Judge.
Appearances: James D. Gilmore, Gilmore and
Doherty, Anchorage, for Appellant. James
Fayette, 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.
Gary T. Roath was convicted, based upon his plea of no
contest, of two counts of criminal impersonation, a class A
misdemeanor. AS 11.46.570. Criminal impersonation is committed
when a person either "assumes a false identity and does an act in
the assumed character with the intent to defraud" or "pretends to
be a representative of some person or organization and does an
act in the pretended capacity with intent to defraud." AS
11.46.570(a)(1) and (2).
Roath persuaded women to pose for nude photographs by
falsely representing that he was a photographer for Playboy
magazine. Each of the two counts for which Roath was convicted
encompassed five different victims, for a total of ten separate
victims. District Judge Gregory Motyka sentenced Roath to 300
days of imprisonment with 150 days suspended, a $3000 fine with
$1000 suspended and ten days of community work service on each
count. Judge Motyka placed Roath on probation for a period of
three years following his release from confinement. Judge Motyka
imposed these sentences consecutively, resulting in a composite
jail sentence of 600 days with 300 days suspended, a $6000 fine
with $2000 suspended and twenty days of community work service.
As conditions of probation, Judge Motyka ordered Roath to forfeit
all of his camera equipment and to write a letter of apology to
each victim.
At the time of the offense, Roath was forty-four years
of age and had no prior criminal record. He had established a
good work history and had served as an acting captain in the fire
department for several years. Roath contends that the sentence
he received was excessive in light of his excellent prior record
and the fact that the legislature classified criminal
impersonation as an offense against property.
The state contends that Roath committed a serious
offense by engaging in a well planned scheme in which young women
were tricked into posing nude for him so that he could
photograph, videotape, and intimately touch them. The state
points out that the facts of Roath's offense would support a
felony charge: the class B felony of scheme to defraud.1 The
state concludes, therefore, that Judge Motyka could properly find
that Roath's conduct was among the most serious conduct within
the misdemeanor offense of criminal impersonation. Benboe v.
State, 698 P.2d 1230 (Alaska App. 1985).
In sentencing Roath, Judge Motyka accepted the state's
view of the offense. He found that Roath had engaged in an elab-
orate and well planned scheme designed to lure young women to
pose for him so that he could photograph and touch them. Judge
Motyka found that "this was a deliberate misrepresentation aimed
at young women for personal gratification and possibly profit."2
He concluded that this was much more than a property offense and
noted the embarrassment and humiliation that Roath's victims had
endured. Judge Motyka's findings are supported by the record and
justify the sentence he imposed. We conclude that the sentence
is not clearly mistaken.
Roath points out that, in imposing sentence, Judge
Motyka twice stated that Roath's 300 day sentence would be
reduced by "good time" to 200 days.3 Roath contends that Judge
Motyka improperly considered "good time" in imposing sentence.
In support of his argument, Roath cites Jackson v. State, 616
P.2d 23 (Alaska 1980). In that case, Jackson argued that his
sentence was excessive because the trial judge assumed that the
parole board would release Jackson on parole and that this would
likely reduce the period of time which Jackson would actually
serve. Id. at 24. The supreme court agreed with Jackson that
the sentencing judge erred, finding that "the assumption that an
offender will be paroled on a particular date is, at best,
speculative." Id. at 25. The court held that "the correct
approach is for the sentencing judge to impose an appropriate
term of incarceration . . . on the assumption that the entire
term may be served." Id. (footnotes omitted).
Jackson is somewhat distinguishable from the current
situation. It is probably more reasonable to predict that a
forty-four-year-old defendant with no prior record will obey the
rules and regulations of the Department of Corrections while
incarcerated, and will accumulate good time, than it is to
predict when the parole board will release a prisoner on parole.
However, in light of this ambiguity, we remand for Judge Motyka
to clarify whether Roath's sentence was based on the assumption
that Roath would serve 200 days. If Judge Motyka concludes that
the sentence was not based on this assumption, the sentence
stands. If Judge Motyka concludes that the sentence was based on
the assumption that Roath would serve 200 days, he should
reconsider the sentence in light of Jackson.
REMANDED.
_______________________________
1 AS 11.46.600(a)(1) provides that
(a) A person commits the crime of scheme to
defraud if the person engages in conduct
constituting a scheme
(1) to defraud five or more persons or
to obtain property or services from five or
more persons by false or fraudulent pretense,
representation, or promise and obtains proper
ty or services in accordance with the
scheme[.]
2 The information charges that through "false and
fraudulent pretenses, representations, and promises, Roath
obtained modeling services from [the victims] as well as . . .
the rights to reproduce and sell their photographs as he wished."
3 AS 33.20.010(a) provides in part that a prisoner "is
entitled to a deduction of one-third of the term of imprisonment
. . . if the prisoner follows the rules of the correctional
facility in which the prisoner is confined." However, under
AS 33.20.050 "if . . . a prisoner commits an offense or violates
the rules of the correctional facility, all or part of the
prisoner's good time may be forfeited . . . ."
