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THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID V. EVENSON, )
) Court of Appeals No. A-5415
Appellant, ) Trial Court No. 1JU-S91-1310CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1410 - May 12, 1995]
______________________________)
Appeal from the Superior Court, First
Judicial District, Juneau, Larry R. Weeks,
Judge.
Appearances: Thomas J. Meyer, Assistant
Public Defender, Juneau, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Richard Svobodny, District Attorney, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
David V. Evenson was convicted in 1991 of three counts
of assault in the second degree in violation of AS
11.41.210(a)(2). The convictions were for three separate alcohol-
related incidents in which Evenson engaged in unprovoked attacks
against other people and inflicted serious physical injuries upon
them. Although a first felony offender for presumptive
sentencing purposes, Evenson had an extensive misdemeanor record
and a juvenile history that included adjudications for felony-
level assaultive misconduct. Pursuant to the terms of a
sentencing agreement, Evenson received consecutive sentences of
two years with one year suspended for the three assaults.
Evenson served the unsuspended portion of his sentences and, upon
release from prison in November 1993, was simultaneously placed
under parole and probation supervision. Evenson's conditions of
probation required him to comply with all laws and prohibited him
from consuming alcoholic beverages or entering bars.
On November 25, 1993, less than two weeks after his
release from prison, Evenson was cited for driving without a
license; he was convicted of the offense on December 9, 1993.
Soon thereafter, he began consuming alcohol regularly. On
January 26, 1994, Evenson entered the Imperial Bar in Juneau and
tried to start a quarrel with another man; the man attempted to
ignore Evenson and ultimately left the bar to avoid a
confrontation. Several hours later, Evenson encountered the same
man in a restaurant. Without provocation or warning, Evenson
struck the man in the face with his fist, inflicting a one and
one-half inch cut over the man's eyebrow.
As a result of these incidents, Superior Court Judge
Larry R. Weeks revoked Evenson's probation. On each of Evenson's
second-degree assault convictions, the judge imposed six months
of the one-year term that had originally been suspended. Evenson
also entered a no contest plea to a class A misdemeanor charge of
fourth-degree assault for the January 26 incident. Judge Weeks
sentenced Evenson to six months for that offense. Judge Weeks
ordered Evenson to serve all of these sentences consecutively,
for a total of two years' additional incarceration. Evenson
appeals, contending that his composite sentence is excessive.
In arguing that his sentence is excessive, Evenson
virtually ignores the offenses for which he was on probation;
instead, he focuses exclusively on the conduct that led to the
revocation of his probation. Evenson maintains that, because he
received six months' incarceration for his new misdemeanor
assault, "[t]he court's imposition of another year and a half for
essentially the same conduct went too far."
This argument misses the point: the additional time
Evenson received upon revocation of his probation constitutes
punishment for his 1991 felony convictions, not for his more
recent misdemeanor conviction:
Because a sentence imposed upon
revocation of probation constitutes
punishment for the defendant's original
offense, the length of the sentence
ultimately imposed must be appropriate to the
nature and circumstances of the original
offense.
Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990).
For this reason, in imposing sentence upon revocation
of Evenson's probation, Judge Weeks was required to consider, not
just Evenson's current conduct, but rather
all available sentencing evidence, in
cluding information concerning the
defendant's background, the seriousness of
the original offense, the nature of the
defendant's conduct while on probation, and
the seriousness of the violations that led to
the revocation. As in all other sentencing
proceedings, relevant information must be
evaluated in light of the sentencing criteria
articulated in State v. Chaney, 477 P.2d 441,
443-44 (Alaska 1970).
Id. (internal citations omitted).
In the present case, Judge Weeks properly considered
the totality of the sentencing evidence in light of the Chaney
criteria. The judge concluded, despite Evenson's assurances to
the contrary, that a substantial additional sentence was
necessary to serve the purposes of deterrence, community
condemnation, and protection of the public. Given the
seriousness of the three separate felonies for which Evenson was
convicted, Evenson's extensive background of similar unprovoked
and serious acts of violence, the substantial efforts that have
unsuccessfully been devoted to Evenson's rehabilitation, and the
disturbing similarity of Evenson's current and past misconduct,
Judge Weeks' sentencing decision seems remarkable, not in its
harshness, but rather in its moderation and restraint.1
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below was not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The sentences are AFFIRMED.
_______________________________
1. Evenson attempts to expand his sentence appeal to
include consideration of additional time he evidently received
upon revocation of his parole. Evenson maintains that Judge
Weeks erred in imposing the current sentences consecutively to
the time Evenson received upon revocation of his parole.
However, no action on Evenson's parole had been taken at the time
of his sentencing hearing in the present case, and the parole
board's subsequent action is not a matter of record here. Judge
Weeks did not expressly order Evenson's sentences in the current
case to be served either concurrently with or consecutively to
any additional time that might result from revocation of his
parole by the parole board. Evenson has failed to present any
authority indicating that Judge Weeks had discretion to preempt
subsequent actions of the parole board by ordering the current
sentences to be served concurrently with additional time
resulting from parole proceedings that had not yet been
completed. Under the circumstances, we agree with the state that
Evenson's arguments concerning the parole board's actions are not
properly before this court.
