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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES D. ANDREWS, JR., )
) Court of Appeals No. A-6874
Appellant, ) Trial Court No. 3AN-97-6867 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1611 - November 13, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: David R. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. John J. Novak, Assistant District Attorney, Susan
A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Charles D. Andrews, Jr., committed two robberies on
September 1, 1997. In both robberies, Andrews represented that he
was armed with a firearm; thus, he could have been prosecuted for
first-degree robbery. [Fn. 1] However, Andrews was in fact unarmed,
and in both instances he took very little a pair of scissors in
the first robbery, a can of soda in the second. The State agreed
to reduce the charges to second-degree robbery. [Fn. 2] Andrews
pleaded no contest to these reduced charges.
For these two crimes, Andrews was sentenced to a composite
term of 14 years' imprisonment. He now appeals this sentence.
Second-degree robbery is a class B felony with a maximum
term of 10 years' imprisonment. [Fn. 3] For purposes of presumptive
sentencing, Andrews was a third felony offender, and he therefore
faced a presumptive term of 6 years on each robbery count. [Fn. 4]
Based on four aggravating factors (discussed in more detail below),
Superior Court Judge Larry D. Card enhanced Andrews's presumptive
term from 6 years to 7 years on each count. He then imposed these
two sentences consecutively thus yielding a composite term of
14 years to serve.
On appeal, Andrews asserts that Judge Card committed error
when he found three of the four aggravating factors. Andrews also
asserts that his composite term of 14 years is excessive.
As explained in this opinion, we reverse Judge Card's
finding with regard to aggravator (c)(15) his finding that Andrews
had three prior felony convictions for presumptive sentencing
purposes. And, because we can not be sure whether Judge Card's
sentencing decision would be the same in the absence of this
aggravating factor, we remand Andrews's case to the superior court
for resentencing.
Andrews was 30 years old at the time of sentencing. He
had been in either juvenile or adult custody for most of the
preceding 15 years.
In December 1981, Andrews murdered his adoptive father and
stepmother. He was adjudged a delinquent minor and was committed
to the custody of the Department of Health and Social Services.
Andrews turned twenty in October 1987, and so he was
released from juvenile custody. [Fn. 5] Less than four months
later, he committed first-degree burglary and second-degree theft;
Andrews and a companion broke into a residence and stole property
valued at approximately $7000.
Andrews was convicted of these crimes and was sentenced
to 6 years' imprisonment with 2 years suspended (4 years to serve).
He was released to concurrent probation and parole supervision on
March 4, 1991.
Andrews's parole release lasted only three months. During
these three months, Andrews engaged in a series of short employments
(some lasting only days). He was reluctant to engage in court-
ordered treatment. He also violated the conditions of his probation
and parole by drinking and visiting bars. On June 5, 1991,
Andrews's probation officer contacted the Kenai police and told them
to arrest Andrews if they found him in a bar.
Three days later in the early morning hours of June 9th
the police found Andrews at a bar. They arrested him and took
him to Wildwood Correctional Center. During the booking process,
when Andrews's property was inventoried, police found two checks.
These checks had been stolen during the burglary of a local church
two weeks before. It turned out that Andrews had broken into the
church twice once in mid-May and then again on the night of June
1st-2nd. During these burglaries, Andrews took several checks on
the pastor's account, as well as two checks written by third parties
and made payable to the pastor.
Andrews was charged with two counts of second-degree
burglary for the two separate break-ins. He ultimately pleaded
no contest to one count in exchange for dismissal of the other.
Andrews was sentenced to 42 months' imprisonment with 12 months
suspended (2« years to serve). He was released to concurrent
probation and parole on March 14, 1994.
Again, Andrews's release was short-lived. In July, his
probation officer filed a parole violation report which alleged that
Andrews had submitted urine samples that tested positive for cocaine
and had failed to report to his probation officer as ordered.
Andrews's parole was formally revoked on January 4, 1995.
Andrews was again released on supervision on September 27,
1995. He reported to his probation officer twice in October, but
then in November he failed to keep three scheduled appointments for
urinalysis. Andrews's final contact with his probation officer
occurred on November 16th. After that, according to the pre-
sentence report, "Mr. Andrews dropped out of sight".
At the end of February 1996, Andrews's probation officer
filed a petition to revoke his probation. The superior court
revoked Andrews's probation and, on May 24, 1996, the court ordered
him to serve all of his remaining time (including the previously
suspended time).
Andrews received his final discharge from custody on
January 13, 1997. Eight and a half months later, on September 1st,
Andrews committed the two robberies in the present case.
Andrews's argument on appeal consists of two parts: he
attacks the superior court's findings on three of the four
aggravating factors, and he also contends that his composite
sentence of 14 years' imprisonment is excessive.
Judge Card found that the State had proved four of the
aggravating factors listed in AS 12.55.155(c). Andrews conceded one
of these factors: (c)(19) that "[his] prior criminal history
includes an adjudication as a delinquent for conduct" the murder
of his parents "that would have been a felony if committed by an
adult". However, Andrews contests the other three aggravators:
(c)(8), (c)(10), and (c)(20).
Aggravator (c)(8) is that "the defendant's prior criminal
history includes conduct involving aggravated or repeated instances
of assaultive behavior". To prove this aggravator, the State relied
on the fact that Andrews had murdered his parents, as well as
Andrews's prison record which showed that he had been disciplined
for fighting.
On appeal, Andrews contends that aggravator (c)(8) can not
be premised on criminal conduct that the defendant committed as a
juvenile. Andrews bases his contention on the fact that aggravator
(c)(8) speaks of a defendant's "criminal history". Since unlawful
acts committed by a juvenile are not, technically speaking,
"crimes", Andrews concludes that a person's "criminal history" does
not include adjudications for delinquency. Andrews further argues
that "criminal history" does not include criminal acts unless those
acts resulted in a conviction.
To answer Andrews's contentions, we must analyze what the
legislature meant by the term "criminal history". It is clear that
the legislature intended a broader meaning than the one Andrews
suggests. As noted two paragraphs ago, Andrews conceded aggravator
(c)(19). This aggravator is proved when "the defendant's prior
criminal history includes an adjudication as a delinquent for
conduct that would have been a felony if committed by an adult".
(Emphasis added.) The wording of aggravator (c)(19) makes it clear
that the legislature intended the term "criminal history" to include
acts committed by a juvenile.
As to Andrews's argument that "criminal history" does not
include criminal acts unless those acts resulted in criminal
convictions, we have repeatedly held to the contrary. [Fn. 6]
Finally, Andrews attacks the merits of the State's proof.
He argues that, even though he was disciplined for fighting in
prison, the State failed to show that Andrews had instigated these
fights by acts of assault.
We need not decide whether these prison incidents
constituted acts of assault. Aggravator (c)(8) is proved by
evidence that the defendant engaged in either "aggravated" or
"repeated" instances of assaultive behavior. Because the ordinary
meaning of "repeated" is "more than once" or "on more than one
occasion", [Fn. 7] the legislature must have intended aggravator
(c)(8) to encompass cases where the defendant previously engaged in
even a single prior instance of "aggravated" assault.
It is undisputed that Andrews had engaged in a prior
instance of aggravated assaultive conduct the murder of his
parents. Therefore, regardless of whether Andrews engaged in
assaultive conduct in prison, the aggravator was proved.
We now turn to Andrews's argument concerning aggravator
(c)(10) the finding that Andrews's conduct was among the most
serious included within the definition of the offense. To prove
this aggravator, the State relied on the fact that, even though
Andrews had entered pleas to second-degree robbery, he had actually
committed first-degree robbery (because he represented to the
victims that he was armed with a firearm). In Benboe v. State [Fn.
8], we said that a defendant's factual guilt of a higher degree of
crime could justify a sentencing court in finding aggravator
(c)(10).
Andrews argues, however, that his factual guilt of a
higher degree of crime does not necessarily determine the issue.
Rather, he contends, the fact that his conduct amounted to a higher
degree of crime must be considered along with all the other aspects
of his conduct to determine whether his conduct was among the most
serious.
Specifically, Andrews points out that the two robberies
were of short duration and that essentially nothing of value was
taken (only a pair of scissors and a can of soda). Moreover,
Andrews carried no weapon, his victims were not harmed, and Andrews
was apprehended a little later without incident. He argues that,
even though he may have committed first-degree robbery because he
led his victims to believe that he was armed, this fact is of slight
significance when judged against the other mitigating aspects of the
situation, and thus the superior court should not have found
aggravator (c)(10).
Whatever the merits of this argument, it was not preserved
in the superior court. At sentencing, Andrews's attorney told Judge
Card that he conceded the existence of aggravator (c)(10); he simply
wanted to urge the court not to weigh this factor heavily. In
particular, Andrews's attorney said:
I realize that the case law, Benboe
especially, says that when a case could have been charged as a more
serious class of felony, [then] technically [the] aggravator [is]
established. And I really don't dispute that. Perhaps my argument
goes more to the weight that the court should give this aggravator.
... I think, in a factual situation like this is, you can find
"most serious" and "least serious" [as well]. You can find "most
serious" because of the technicality that [Andrews] could have been
charged with the greater offense. I think you could also find
"least serious", based on the totality of the circumstances.
We therefore find that Andrews's attack on aggravator (c)(10) is not
preserved for appeal.
The final aggravating factor at issue in this appeal is
aggravator (c)(15) the finding that Andrews had three prior felony
convictions. As described above, Andrews was convicted of both
burglary and theft in 1988, and he was convicted of burglary in
1991. Thus, as a factual matter, Andrews had three prior felony
convictions.
But under AS 12.55.145(a)(1)(C), two or more felony
convictions arising out of a single, continuous criminal episode are
deemed a single conviction for presumptive sentencing purposes if
(1) there was no substantial change in the nature of the criminal
objective and (2) the defendant received concurrent sentences for
these offenses. Andrews received concurrent sentences for his 1988
burglary and theft. He argues, moreover, that when a defendant
commits burglary with intent to steal and then commits a theft
inside the building, there is no substantial change in the nature
of the defendant's criminal objective. For these reasons, Andrews
contends that the superior court should have treated his 1988
convictions for burglary and theft as a single felony conviction.
Andrews's argument is supported by the legislative
commentary to AS 12.55.145(a)(1)(C) which, in the original version
of the statute, was designated subsection (a)(3).
Subsection (a)(3) provides that two or
more convictions arising out of a "single, continuous criminal
episode" are to be considered a single conviction unless there was
a "substantial change in the nature of the criminal episode." The
phrase "single, continuous episode" is intended to limit the
applicability of this provision to a single criminal event out of
which a number of offenses could be charged. [Take,] [f]or example,
the breaking and entering of a building with the intent to commit
theft, which can be charged as burglary, and the taking of property
in the building[,] which can be charged as theft. In such an
instance, convictions for both burglary and theft would be
considered a single conviction under this section. ...
1978 Senate Journal, Vol. 2, Supp. No. 47 (June 12), p. 157
(emphasis added).
In reply, the State relies on our decisions in Amarok v.
State [Fn. 9] and Reynolds v. State [Fn. 10], where we held that
when a defendant commits burglary and theft in a single criminal
episode, the offenses are legally separate and do not merge. That
is, the defendant is to be convicted of (and sentenced for) each
offense.
The State's argument does not answer Andrews's contention,
for it is apparent that Amarok and Reynolds deal with a different
issue. Amarok and Reynolds stand for the proposition that Andrews
was validly convicted of both burglary and theft in 1988. But the
question in the present appeal is whether those two convictions
should be deemed a single prior conviction for purposes of Andrews's
sentencing in the present case.
AS 12.55.145(a)(1)(C) is not inconsistent with Amarok and
Reynolds. In fact, the statute is premised on the vitality of those
two decisions.
Amarok and Reynolds establish the rule that a person who
commits burglary and theft during a single criminal episode is
guilty of two felonies. Section 145(a)(1)(C) exists only because
of this rule; by its terms, the statute comes into play only when
a defendant has been separately convicted for two or more felonies
arising out of the same criminal episode. As the commentary
declares, the legislature recognized that a defendant previously
convicted of breaking into a building and then stealing property
from the building would have two prior felony convictions; the
legislature enacted section 145(a)(1)(C) to mitigate the effect of
presumptive sentencing on such a defendant.
We therefore conclude that the superior court committed
legal error when it found that Andrews had three prior felonies for
purposes of presumptive sentencing. The remaining question is
whether this error requires us to remand Andrews's case to the
superior court for resentencing.
It might be argued that, given the other three aggravating
factors in this case, the absence of factor (c)(15) could not
reasonably be expected to alter Judge Card's sentencing decision.
However, Andrews received a composite term of 14 years to serve
quite lengthy for a defendant convicted of class B felonies. We
also note that, at least in some respects, Andrews's present
offenses are arguably mitigated instances of robbery. We express
no opinion on Andrews's claim that his total sentence is excessive.
Nevertheless, we conclude that we must remand Andrews's case for
resentencing.
The sentencing decision of the superior court is VACATED,
and this case is remanded to the superior court for resentencing.
FOOTNOTES
Footnote 1:
AS 11.41.500(a)(1).
Footnote 2:
AS 11.41.510(a)(1) and (2).
Footnote 3:
AS 11.41.510(b); AS 12.55.125(d).
Footnote 4:
AS 12.55.125(d)(2).
Footnote 5:
See AS 47.12.120(b)(1) and AS 47.12.160(c).
Footnote 6:
See Russell v. State, 934 P.2d 1335, 1347 (Alaska App. 1997),
and Fagan v. State, 779 P.2d 1258, 1260 & n.3 (Alaska App. 1989)
(holding that a defendant's "criminal history", for purposes of
aggravator (c)(8), includes incidents that were not prosecuted or
that otherwise did not result in convictions).
Footnote 7:
See Konrad v. State, 763 P.2d 1369, 1379-1380 (Alaska App.
1988).
Footnote 8:
698 P.2d 1230, 1232 (Alaska App. 1985).
Footnote 9:
789 P.2d 377, 380 (Alaska App. 1990).
Footnote 10:
706 P.2d 708, 711 (Alaska App. 1985).
