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Griffin v. State (10/6/00) ap-1693
Griffin v. State (10/6/00) ap-1693
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL S. GRIFFIN, ) Court of Appeals No. A-7419
) Trial Court Nos. 3PA-98-1597 Cr,
Appellant, ) 3PA-98-1584 Cr, 3AN-91-5493 Cr,
) & 3AN-87-7512 Cr
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1693 October 6, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: John C. Pharr, Anchorage, for
Appellant. William L. Estelle, Assistant District Attorney, Roman
J. Kalytiak, District Attorney, Palmer, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Michael S. Griffin, a defendant with a long history of
burglaries and thefts, was convicted of a number of class B and
class C felonies arising from two separate criminal episodes in June
and July, 1998. For these 1998 crimes, Superior Court Judge Eric
Smith sentenced Griffin to a composite term of 17 years to serve.
In addition, Judge Smith revoked Griffin's suspended jail time from
two prior felony cases. All told, Griffin received a composite
sentence of close to 23 years' imprisonment. The question is
whether this sentence is excessive. For the reasons explained here,
we conclude that Griffin's sentence is not clearly mistaken that
it is "within [the] permissible range of reasonable sentences which
a reviewing court, after an independent review of the record, will
not modify." [Fn. 1] Accordingly, we affirm the superior court's
sentencing decision.
Griffin's past criminal history
Griffin has been in trouble with the law on a regular
basis for the past fifteen years. In 1984, Griffin was adjudicated
a delinquent minor after he committed two residential burglaries;
he was sent to McLaughlin Youth Center and later released on
juvenile probation. While on probation, Griffin absconded from
Alaska. He was later found incarcerated in the State of Washington,
where he had committed another burglary and had been sentenced to
a youth camp. Griffin was released from Alaska juvenile supervision
on his eighteenth birthday (June 18, 1986).
The following year, Griffin committed his first adult
felonies. He was convicted of two counts of second-degree theft in
Case No. 3AN-87-5477 Cr, and another two counts of second-degree
theft in Case No. 3AN-87-7512 Cr. Griffin was sentenced to a
composite term of 4 years' imprisonment with 3 years suspended (1
year to serve). Since that time, Griffin has spent nearly his whole
life either in prison or on parole / probation supervision.
In 1991, Griffin committed a new string of felonies. He
was convicted in Case No. 3AN-91-5493 Cr of first-degree burglary,
two counts of second-degree theft, and what would now be third-
degree weapons misconduct (felon in possession of a concealable
firearm). For these crimes, Griffin received a composite sentence
of 10 years' imprisonment with 3 years suspended (7 years to serve).
Griffin was released from prison in February 1996. He
committed several probation violations during the remainder of that
year, but the court apparently continued his probation. The
following year, Griffin was sent to prison for a month (in
July/August 1997). He was sent back to prison again in April 1998.
Then, shortly after his release, he committed the crimes which are
the subject of this appeal.
Griffin's current offenses: Case No. 3PA-98-1584 Cr
On the afternoon of June 19, 1998, 64-year-old Barbara
Christensen came home to find a strange car parked in her driveway.
It turned out that four people (three men and a woman) were in the
process of burglarizing her residence. The burglars made off with
armloads of Christensen's property, but their actions were recorded
on a security camera tape. This tape showed that one of the men
later identified as Griffin was holding a handgun as he approached
the front door.
When the police arrived to investigate, they discovered
that the house had been ransacked. The burglars had stolen
approximately $64,000 worth of jewelry, furs, art, and heirlooms.
Christensen's residence had a camera security system. The
police obtained a copy of the surveillance tape and released it
(along with still photographs made from it) to the media in hopes
of identifying the burglars. Within several days, the police
received tips identifying the woman as Jamie Keylor and identifying
two of her male companions as Mark Spencer and Michael Griffin.
The police also learned that Jamie Keylor had pawned some
of the victim's jewelry on June 20th (the day after the burglary).
The police assembled a photographic lineup that included Keylor's
picture, and the victim subsequently identified Keylor from this
photo lineup.
Based on this information, the police obtained a search
warrant for Keylor's residence, where they found more of the stolen
property. When Keylor was interviewed, she confessed that she had
driven the three men (including Griffin) to the victim's house.
Their plan was to burglarize the residence but if the homeowner
was present, they would use handguns to secure her cooperation.
Keylor explained that when Ms. Christensen came home and
surprised the burglars, they loaded the stolen goods into Keylor's
car and drove to the house of Griffin's girlfriend, Susan
Richardson. They stored the stolen property in Richardson's garage.
Based on their interview with Keylor, the police obtained
a search warrant for Richardson's house. Inside, they discovered
a semi-automatic "assault" rifle that had been reported stolen in
an Anchorage burglary. Richardson told the police that this rifle
belonged to Griffin. The police also found a loaded .357 magnum
revolver. Richardson claimed that the revolver was hers, but when
the State later charged Griffin with violating his probation by
possessing this revolver, he admitted the allegation. (Griffin was
on probation and parole at this time; under the conditions of his
release, he was prohibited from possessing firearms.)
Based on Griffin's participation in the burglary / theft,
a "no bail" parole warrant was issued for Griffin's arrest.
Griffin's current offenses: Case No. 3PA-98-1597 Cr
Shortly after midnight on July 10, 1998 (approximately
three weeks after the Christensen burglary), Officer Swihart of the
Palmer Police made a traffic stop. It turned out that the driver
of the car, George Watson, had a suspended driver's license; in
addition, there was an outstanding arrest warrant for Watson's
arrest. A second officer, Officer Rowland, now arrived to assist
Swihart. Watson was handcuffed and placed in the rear seat of
Swihart's patrol car.
Two passengers were riding in Watson's car. One of these
passengers identified himself as "Donald Peitre". However, "Mr.
Peitre" was carrying an ID card that identified him as Michael
Griffin. Griffin kept asking for permission to return to Watson's
car. (The police later discovered a duffle bag containing loaded
firearms inside the car.) Swihart refused Griffin's request and
instead informed Griffin that he was under arrest.
But when Swihart attempted to handcuff Griffin, Griffin
pushed the officer aside and started to run away. When Swihart
grabbed for Griffin, Griffin tried to seize the officer's sidearm.
Mistakenly thinking that he had hold of the officer's gun, Griffin
pulled an object free from the officer's belt and began to yell,
"I've got your gun! I've got your gun!" Griffin had in fact seized
the officer's baton. When Griffin realized his mistake, he then
grabbed the officer's sidearm (which was still holstered) and tried
to wrest it free. The two men grappled on the ground. Griffin
repeatedly struck Swihart in the face and head. Swihart used pepper
spray on Griffin, but to no apparent effect.
In the meantime, Officer Rowland had been chasing the
other passenger (who had also run away). But when Rowland heard
Griffin yelling, "I've got your gun!", he came back to aid Swihart.
Finding Swihart and Griffin struggling together on the ground,
Rowland seized Griffin's head and sprayed Griffin in the face with
more pepper spray. Despite this, Griffin continued to resist, and
it took the efforts of both officers to subdue him.
Griffin was handcuffed behind his back and placed in the
rear seat of Officer Rowland's patrol car. Rowland then tried to
raise the plexi-glass shield between the front and rear seats, but
the mechanism was broken. The officers left Griffin in the car
while they stood outside, trying to shake the effects of the pepper
spray. (Both officers had gotten pepper spray in their faces during
the struggle with Griffin.) In the meantime, three state troopers
Sgt. Ballard, Trooper Burkmire, and Trooper Roleff arrived in
separate cars to lend their assistance. Burkmire and Roleff parked
their vehicle behind Rowland's patrol car.
As Swihart, Rowland, and Ballard stood outside, they heard
the engine of Rowland's patrol car begin to race. Griffin had
managed to get his cuffed hands around to the front of his body, and
then he had climbed from the rear seat into the driver's seat.
Griffin looked backwards and saw Trooper Burkmire and Trooper Roleff
sitting in the car behind him. Griffin shifted into reverse and
rammed the trooper car, causing head and neck injuries to the two
troopers.
Griffin then shifted into "drive" and sent the car forward,
aiming for the spot where Officer Swihart and Trooper Sgt. Ballard
were standing next to Swihart's patrol vehicle. Rowland yelled at
Griffin to stop the car. When Griffin did not respond, Rowland
pulled his weapon and fired five shots at Griffin. Griffin was hit
by three of these rounds, but he still did not stop.
Officer Swihart moved aside to avoid being struck. Sgt.
Ballard also saw Griffin coming, but he did not immediately move to
safety. He stayed behind because George Watson, the driver with the
suspended license, was still handcuffed in the back of Swihart's
patrol car in the path of danger. Ballard tried to get Watson
out of the back seat, but there was not enough time: Ballard had
to leap aside just as Griffin hit the patrol car from the rear.
Watson was in fact injured in this collision, and Ballard returned
to assist him.
Griffin was able to ram the stolen police car through a
small space between Officer Swihart's patrol car and Sgt. Ballard's
patrol car (striking and damaging both cars in the process). Having
broken free, he drove away. Two other state troopers, Sgt. Baty and
Trooper Cyr, were summoned, and a high-speed chase ensued. Griffin
eventually headed down the Glenn Highway toward Anchorage. At the
turn-off to Eklutna Lake, he left the Glenn Highway and drove toward
the lake, but he lost control of the car and slid off the road.
Sgt. Baty and Trooper Cyr were then able to catch and subdue him.
Griffin (who was suffering from three gunshot wounds) was
taken to the hospital. When the police searched his clothes, they
found several items of jewelry and $800 in cash. Ms. Christensen
(the victim of the June 20th burglary) later identified this jewelry
as hers.
Griffin's convictions from these two criminal episodes
In Case No. 98-1584 (the burglary / theft), the State
charged Griffin with first-degree robbery, first-degree burglary,
first-degree theft, second-degree criminal mischief, and third-
degree weapons misconduct. Griffin ultimately agreed to plead no
contest to a reduced theft charge second-degree theft [Fn.
2] in exchange for dismissal of the other charges.
In Case No. 98-1597 (the assault / escape episode), the
State charged Griffin with two counts of attempted murder (Griffin's
attempt to strike Swihart and Ballard with the stolen police car),
five counts of third-degree assault, five counts of second-degree
criminal mischief, one count of vehicle theft, and assorted other
crimes. Griffin ultimately pleaded no contest to attempted first-
degree assault [Fn. 3], second-degree escape [Fn. 4], third-degree
assault [Fn. 5], fourth-degree assault [Fn. 6], third-degree weapons
misconduct [Fn. 7], and driving while intoxicated [Fn. 8].
Griffin's most serious crimes attempted first-degree
assault and second-degree escape are both class B felonies. [Fn.
9] They carry a maximum sentence of 10 years' imprisonment. [Fn.
10] As a "third felony offender" for presumptive sentencing
purposes, Griffin faced a 6-year presumptive term for these
offenses. [Fn. 11]
Second-degree theft, third-degree assault, and third-
degree weapons misconduct are class C felonies. [Fn. 12] They carry
a maximum sentence of 5 years' imprisonment. [Fn. 13] Griffin faced
a 3-year presumptive term for these offenses. [Fn. 14]
Testimony at the sentencing hearing
At the sentencing hearing, Griffin took the stand and
claimed that he was innocent of most of the charges.
The burglary / theft: Griffin testified that he had not
participated in the burglary of the Christensen residence, although
he admitted that he later traded cocaine to Keylor and Spencer for
some of the stolen jewelry. With respect to the items of jewelry
found on his person at the hospital, Griffin testified that this
jewelry was his own that it did not belong to Christensen.
During cross-examination, the prosecutor showed Griffin
photographs produced from the security camera tape at the
Christensen residence. At least one of these photographs showed a
man approaching the front door, holding a gun. When the prosecutor
asked Griffin if the man depicted in the photograph was him, Griffin
denied it. The prosecutor also asked Griffin to explain how a pair
of Griffin's eyeglasses was found inside the Christensen residence.
Griffin speculated that Keylor had stolen his fanny pack (which
contained several personal items, including the eyeglasses) and had
left the eyeglasses inside the residence in order to frame him.
Griffin told the court that Keylor was motivated to falsely accuse
him because she owed him $700 for drugs, and she feared retribution
because she could not pay him. According to Griffin, Keylor must
have thought that she could escape her drug debt if she had him sent
to prison.
In support of Griffin's testimony, Griffin's attorney
offered a tape recording of a telephone call that Jamie Keylor had
placed to the attorney's office. In that telephone call, Keylor
recanted her accusations against Griffin; she stated that she lied
when she told the police that Griffin was involved in the burglary.
(Keylor failed to honor her subpoena to appear at the sentencing
hearing; her whereabouts were unknown.)
Griffin's attorney also presented the supporting testimony
of Griffin's former girlfriend, Susan Richardson. Richardson
testified that she knew Griffin could not have taken part in the
Christensen burglary because she remembered telephoning him at her
home at 4:00 on the afternoon of June 19th (the approximate time of
the burglary) and interrupting his bath. She also testified that
the discovery of the assault rifle in her house came as a complete
surprise to her. Neither she nor Griffin had ever seen it before.
She speculated that the former occupants of the residence must have
left the weapon under the couch when they moved out.
To rebut this testimony, the State called Mark Spencer
(another one of the burglars). Spencer, who was Griffin's co-
defendant, was not particularly co-operative with the prosecutor.
Spencer admitted taking part in the burglary of the Christensen
residence, but he claimed that only three people were involved
himself, Jamie Keylor, and another man named Clint Nauls. According
to Spencer, he had no idea where Griffin was that day. Spencer
speculated that Keylor might now be saying that there were four
burglars because she was trying to shift responsibility to others
i.e., to Griffin.
Compelled to "cross-examine" his own witness, the
prosecutor played the video from the security camera. After viewing
the video, Spencer was forced to admit that four different people
had entered the Christensen residence, but Spencer testified that
he had no idea who this fourth burglar was.
The prosecutor later presented the testimony of State
Trooper Ruth Josten. Josten testified that she had interviewed
Jamie Keylor three times. During these interviews, Keylor had
always maintained that Griffin was one of the four burglars and that
he was armed when he went into the house. Josten also testified
that she traveled to San Antonio, Texas to accompany Clint Nauls
back to Alaska after a Texas court ordered his extradition. Nauls
also told her that Griffin was one of the burglars.
In addition, Josten was the officer who found the pair of
eyeglasses in the kitchen area of Christensen's house. Christensen
said that the glasses did not belong to her, and their ownership
remained a mystery until the police obtained a search warrant to
open the duffle bag that was found in George Watson's car following
the assault / escape episode. This duffle contained two address
books belonging to Griffin (as well as four firearms and several
items of jewelry that had been stolen from the Christensen
residence). One of the entries in Griffin's address book was a
notation for "Vista Optical". Trooper Josten called and found out
that Griffin had purchased eyeglasses there. Another trooper
investigator took the eyeglasses found in Christensen's home and
showed them to a Vista Optical employee; the employee identified the
prescription and the frames as Griffin's.
The assault / escape episode: Griffin denied that he
owned the handguns found in the duffle bag in George Watson's car,
and he further testified that he never asked to go back into the
car. Griffin also denied that he purposely aimed the stolen police
car at Officer Swihart and Trooper Sgt. Ballard. Griffin explained
that he was simply trying to escape, he had Mace in his eyes, and
he was lying down on the front seat of the car because Rowland had
just shot him three times.
Officer Swihart took the stand to rebut Griffin's
testimony. Swihart testified that Griffin drove directly at him and
Ballard, accelerating as he came. In addition, Swihart testified
that Griffin definitely asked if he could get back into Watson's car
to get a cigarette.
As already described, Trooper Josten testified that the
duffle bag in Watson's car contained two address books belonging to
Griffin. The duffle also contained four firearms, including a Smith
& Wesson .38 Special and a Para-Ordinance P-12, a .45 caliber
handgun that had been reported stolen in an Anchorage burglary.
Judge Smith's findings and sentencing decision
After hearing this conflicting testimony, Judge Smith
found that Griffin had in fact participated in the Christensen
burglary. Judge Smith also found that Griffin had asked to get back
into Watson's car and that the weapons in that car belonged to
Griffin. In addition, Judge Smith found that Griffin had
intentionally aimed the stolen police car at Swihart and Ballard.
Finally, with regard to the jewelry found on Griffin's person after
he was captured, Judge Smith found that this jewelry was stolen
during the burglary and did not belong to Griffin. The judge found
that Griffin's testimony on this point was "utterly incredible".
In essence, Judge Smith found that Griffin had repeatedly perjured
himself.
Griffin conceded that various aggravating factors listed
in AS 12.55.155(c) applied to his sentences. He admitted that he
had three or more prior felonies [Fn. 15] and that he was on felony
probation and parole when he committed all of these crimes [Fn. 16].
With respect to the second-degree theft conviction arising
from the Christensen burglary, Griffin conceded that his criminal
history included repeated theft crimes [Fn. 17] and that one of his
prior felonies that triggered presumptive sentencing was more
serious than his current offense [Fn. 18]. Judge Smith found two
other aggravators: (c)(10) that Griffin's conduct was among the
most serious within the definition of second-degree theft because
Griffin was actually guilty of burglary as well as theft [Fn.
19]; and (c)(4) that Griffin employed a dangerous weapon (i.e.,
a handgun) in furtherance of the offense.
With respect to the second-degree escape, Griffin conceded
aggravator (c)(1) that people were injured as a result of
Griffin's conduct. Judge Smith found aggravator (c)(10) conduct
among the most serious, and (c)(13) that Griffin knowingly
directed his conduct toward police officers.
In his sentencing remarks, Judge Smith noted that Griffin
has been in trouble with the law for practically all of his adult
life. Moreover, Judge Smith concluded that Griffin's current
offenses were quite serious. As the judge noted, "The theft to which
[Griffin] pled was really a burglary. And, had Ms. Christensen been
home, it would have been an armed robbery." Additionally, Judge
Smith concluded that, with respect to "[t]he attempted assaults and
escape that [Griffin] committed when the police pulled over Mr.
Watson, I think 'egregious' would be a good word."
Based both on Griffin's criminal history and the
aggravated nature of his current offenses, Judge Smith found that
Griffin was a "worst offender" for sentencing purposes in both Case
No. 98-1584 and Case No. 98-1597. [Fn. 20] The judge also concluded
that Griffin's sentence should emphasize the sentencing criteria of
isolation, protection of the public, and community condemnation of
Griffin's conduct. [Fn. 21]
Judge Smith acknowledged the Mutschler rule [Fn. 22]
the rule that, ordinarily, a defendant who is convicted of multiple
offenses should not receive a composite sentence more severe than
the maximum term for the defendant's most serious offense (in
Griffin's case, 10 years' imprisonment). But Judge Smith explicitly
found that a sentence longer than 10 years was necessary to protect
the public.
Nevertheless, despite his findings regarding the
seriousness of Griffin's offenses, Judge Smith concluded that
Griffin's composite sentence for these offenses should not exceed
20 years. The judge stated that, even though Griffin's offenses
were extremely serious, they were still class B and class C
felonies, and Griffin's composite term should reflect this fact.
For the theft arising from the burglary of the Christensen
residence, Judge Smith sentenced Griffin to the maximum term: 5
years' imprisonment. For the crimes arising from the assault /
escape episode, Judge Smith sentenced Griffin to a composite term
of 12 years to serve (plus another 12 years, 362 days suspended).
The judge declared that Griffin's sentences in the two cases would
run consecutively because the cases arose from "separate, ...
egregious, ... aggravated crimes". Thus, Griffin received a
composite 17 years to serve for his current offenses.
In addition, Judge Smith revoked all of Griffin's
remaining suspended time from his prior felonies. Because of
Griffin's various probation releases and revocations, the parties
were not able to tell the court precisely how much suspended time
was remaining, but they agreed that it was between 5 and 6 years.
By law, this revoked suspended time must run consecutively to the
sentences Griffin received for his new crimes. [Fn.
23] Thus, Griffin's true composite sentence is somewhere between
22 and 23 years to serve.
Our analysis of Griffin's sentence
The obvious first issue is the propriety of Judge Smith's
Mutschler finding his ruling that the public safety required a
composite sentence greater than 10 years to serve. Given Griffin's
long criminal history, the seriousness of Griffin's current
offenses, and the apparent failure of all prior attempts to
supervise Griffin on probation and parole, Judge Smith was justified
in concluding that the public safety called for a sentence greater
than 10 years to serve.
The second (and more difficult) issue is the propriety of
Griffin's composite sentence between 22 and 23 years to serve.
When we review a composite sentence imposed for two or
more criminal convictions, we assess whether the combined sentence
is clearly mistaken, given the whole of the defendant's conduct and
history. [Fn. 24] Griffin's criminal history is lengthy, and his
many failures at probation and parole give little reason for
optimism concerning his future conduct. From the time Griffin was
a teenager, he has repeatedly committed burglary and theft.
Moreover, the seriousness of his crimes appears to be increasing.
Griffin relies on a series of sentencing decisions in
which this court favorably cited the American Bar Association's
suggestion that a 10-year term of imprisonment was adequate
punishment for all but the most dangerous offenders. [Fn. 25] But
this line of authority has been expressly disapproved by the Alaska
Supreme Court. [Fn. 26] The supreme court has declared that "it is
[not] appropriate for [appellate] courts to rigidly define the
length of sentence that can be justified by any particular
criterion". [Fn. 27]
Griffin points out that his record consists almost
entirely of burglaries and thefts, mainly comprising class B and
class C felonies. But although Griffin's prior offenses have been
property crimes, his current offenses show that he is now willing
to use great violence to carry out his crimes and to escape
apprehension. As Judge Smith found, Griffin carried a weapon to the
Christensen residence and, if the victim had been home, Griffin was
prepared to commit robbery. Three weeks later, Griffin used extreme
violence in his efforts to thwart his own arrest and, thereafter,
to escape from custody. Moreover, by attempting to get back to the
firearms hidden in George Watson's car, and then by attempting to
wrest control of Officer Swihart's sidearm, Griffin showed that he
was willing to use life-threatening violence to achieve his goals.
In short, Griffin poses two sorts of public danger: first, his
seemingly intractable recidivism [Fn. 28], and second, his
escalation to the use of violence.
To aid our assessment of Griffin's sentence, we have re-
examined the two decisions in Bumpus v. State: our decision, Bumpus
I [Fn. 29], and the supreme court's decision, Bumpus II [Fn. 30].
Bumpus participated in a series of burglaries of resort
cabins in the Matanuska / Susitna Valley. He was one of a group of
five men: four of these men (including Bumpus) burglarized cabins,
while the fifth member of the group acted as a "fence" for the stolen
property. The burglary ring operated throughout the summer of 1987
and was responsible for approximately fifty burglaries, although
Bumpus did not become a member of the group until early July.
At the time of these offenses, Bumpus was twenty-nine
years old. He had an extensive adult criminal record. In 1977, he
was convicted of shoplifting and burglary of a non-dwelling. He
served 180 days in jail. The following year, he was convicted of
receiving stolen merchandise, a felony for which he received a
suspended sentence. In 1984, Bumpus was convicted of second-degree
burglary, his third felony conviction. He received a 3-year
presumptive term, and he was released from prison in July 1987.
Almost immediately thereafter, he became involved in the burglary
ring described above.
The superior court sentenced Bumpus to a composite term
of 23 years to serve. [Fn. 31] On appeal, this court concluded that
23 years was clearly mistaken that Bumpus's composite term should
not exceed 15 years to serve. [Fn. 32] The supreme court vacated
both the superior court's and this court's decisions, and then the
court remanded Bumpus's case to the superior court for re-
sentencing. [Fn. 33] From the supreme court's explanation of its
decision, it appears that the court believed that Bumpus's proper
sentence lay somewhere between the superior court's sentence (23
years) and this court's sentence (15 years).
The supreme court stated that it was "skeptical ... that
Bumpus deserve[d] twenty-three years". [Fn. 34] The court noted
that, although the sentencing judge had found various aggravating
factors, the judge had not explicitly analyzed the relative
importance of these factors. [Fn. 35] Moreover, the judge had not
expressly found that a sentence of 23 years was necessary to protect
the public, nor had he attempted to explain why Bumpus was receiving
such an extraordinary sentence what the supreme court described
as "the longest sentence ever received by a burglar in this state".
[Fn. 36]
Nevertheless, the supreme court did not agree that the
superior court's sentencing decision should be reversed outright.
Rather, the court concluded that the propriety of the sentence could
not be determined until the superior court further explained its
decision. [Fn. 37] For much the same reason, the supreme court
vacated this court's ruling that Bumpus should not, under any
circumstances, receive more than 15 years to serve. [Fn. 38] The
court declared, "Without articulated findings concerning the factors
that determine the range of reasonable sentences, a sentence of
fifteen years is as arbitrary and unsupportable as a sentence of
twenty-three years." [Fn. 39] But, from the manner in which the
supreme court critiqued this court's approach to the case, it is
clear that the supreme court was not suggesting that a 15-year
sentence was just as likely to be excessive as a 23-year sentence.
Quite the opposite:
The court [of appeals]' abrupt choice of
a fifteen-year term is, on its face, not moored
to any principle. [The court might be suggesting] that fifteen
years is the most any burglar not convicted of other crimes should
receive in this state, but nothing in the applicable statutes, the
prior case law, or the appellate court's reasoning explains why
fifteen years should be the upper limit.
In Shagloak v. State, 582 P.2d 1034, 1039-
40 (Alaska 1978), a case involving an offender
arguably less worthy of condemnation than Bumpus, we held that a
fifteen[-]year sentence for a single burglary was not excessive.
This certainly suggests that, for purposes of appellate review, the
"range of reasonableness" in Bumpus' case extends past the fifteen
year mark.
Bumpus II, 820 P.2d at 303.
From the supreme court's treatment of the burglary
sentence in Bumpus II, we conclude that Griffin's sentence of
between 22 and 23 years to serve is not clearly mistaken. In Bumpus
II, the supreme court indicated that, depending on the facts, Bumpus
might receive a sentence exceeding 15 years (and, perhaps, a
sentence of up to 23 years). And when we compare the facts of
Bumpus to the facts of Griffin's case, we see that Griffin is more
deserving of punishment.
Both Bumpus and Griffin had lengthy histories of burglary
and theft. (If Griffin's juvenile offenses are included, Griffin
has a fifteen-year string of burglaries and thefts.) Both returned
to crime shortly after their most recent release from prison. But
unlike Bumpus (who aided the authorities in trying to retrieve the
stolen property, and who helped the police apprehend some of his
fellow burglars) [Fn. 40], Griffin resolutely denied many aspects
of his crimes and perjured himself in doing so. Moreover, Bumpus
confined himself to non-violent crime, while Griffin was convicted
of several assaults and of an attempt to inflict serious physical
injury on two law enforcement officers.
Based on the supreme court's decisions in Bumpus II and
Wentz, we conclude that Griffin's composite sentence of 22-23 years
to serve is within the range of reasonable sentences that should not
be disturbed on appeal. Accordingly, the sentencing decision of the
superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (quoting
McClain v. State, 519 P.2d 811, 813 (Alaska 1974)).
Footnote 2:
AS 11.46.130(a)(1).
Footnote 3:
AS 11.41.200(a)(1).
Footnote 4:
AS 11.56.310(a)(1)(B).
Footnote 5:
AS 11.41.220(a)(1).
Footnote 6:
AS 11.41.230(a)(1).
Footnote 7:
AS 11.61.200(a)(1).
Footnote 8:
AS 28.35.030(a)(1).
Footnote 9:
Attempted first-degree assault: AS 11.41.200(b) and AS
11.31.100(d)(3). Second-degree escape: AS 11.56.310(b).
Footnote 10:
AS 12.55.125(d).
Footnote 11:
AS 12.55.125(d)(2).
Footnote 12:
Second-degree theft: AS 11.46.130(c). Third-degree assault:
AS 11.41.220(d). Third-degree weapons misconduct: AS 11.61.200(i).
Footnote 13:
AS 12.55.125(e).
Footnote 14:
AS 12.55.125(e)(2).
Footnote 15:
Aggravator (c)(15).
Footnote 16:
Aggravator (c)(20).
Footnote 17:
Aggravator (c)(21).
Footnote 18:
Aggravator (c)(7).
Footnote 19:
We also note that the amount stolen, $64,000, meant that
Griffin's crime was actually first-degree theft.
Footnote 20:
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990) (a
defendant can be classified as a "worst offender" based either on
the circumstances surrounding the defendant's present offense, or
on the defendant's criminal history, or both).
Footnote 21:
See AS 12.55.005.
Footnote 22:
See Mutschler v. State, 560 P.2d 377, 380-81 (Alaska 1977);
George v. State, 836 P.2d 960, 963-64 (Alaska App. 1992).
Footnote 23:
See AS 12.55.025(e); Smith v. State, 892 P.2d 202, 203 (Alaska
App. 1995); Jennings v. State, 713 P.2d 1222, 1223 (Alaska App.
1986).
Footnote 24:
See Neal v. State, 628 P.2d 19, 21 n.8 (Alaska 1981); Comegys
v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Footnote 25:
See, e.g., Bumpus v. State (Bumpus I), 776 P.2d 329, 335
(Alaska App. 1989); DeGross v. State, 768 P.2d 134, 140-41 (Alaska
App. 1989). This line of authority actually stems from the supreme
court's decision in Donlun v. State, 527 P.2d 472 (Alaska 1974).
In Donlun, the supreme court endorsed the ABA's suggested ceiling
on felony sentences (which, at that time, was 5 years'
imprisonment). See 527 P.2d at 475.
Footnote 26:
See State v. Bumpus (Bumpus II), 820 P.2d 298, 302 (Alaska
1991); State v. Wentz, 805 P.2d 962, 966 n.5 (Alaska 1991).
Footnote 27:
Bumpus II, 820 P.2d at 302.
Footnote 28:
See State v. Graybill, 695 P.2d 725, 731 (Alaska 1985) (an
extensive record of non-violent offenses can qualify a defendant as
a "dangerous offender").
Footnote 29:
Bumpus v. State, 776 P.2d 329 (Alaska App. 1989).
Footnote 30:
State v. Bumpus, 820 P.2d 298 (Alaska 1991).
Footnote 31:
Bumpus II, 820 P.2d at 300.
Footnote 32:
Bumpus I, 776 P.2d at 338.
Footnote 33:
Bumpus II, 820 P.2d at 305.
Footnote 34:
Bumpus II, 820 P.2d at 304.
Footnote 35:
Id. at 304. See also Juneby v. State, 641 P.2d 823, 838
(Alaska App. 1982), on rhrg, 665 P.2d 30, 32-33 (Alaska App. 1983)
(the amount of sentence adjustment for aggravating and mitigating
factors should be assessed in light of the Chaney sentencing
criteria).
Footnote 36:
Bumpus II, 820 P.2d at 304.
Footnote 37:
Id. at 304-05.
Footnote 38:
Id. at 305.
Footnote 39:
Id.
Footnote 40:
See id. at 299, 304.
