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Randall v. State (03/22/2002) ap-1795
Randall v. State (03/22/2002) ap-1795
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
TRACY L. RANDALL, )
) Court of Appeals No.
A-8021
Appellant, )
Trial Court No. 3AN-00-6530 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1795 March 22, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. James J.
Fayette, 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.
Tracy L. Randall shoplifted a nail gun from an
Anchorage pawn shop. A store clerk followed Randall, confronted
him in the parking lot, and retrieved the nail gun. As the clerk
was walking back to the store entrance, Randall hit her with his
car. The clerk sustained torn ligaments in her leg.
Randall was indicted for first-degree robbery, assault
in the first and second degrees, second-degree theft, and driving
while his license was suspended. He ultimately pleaded no
contest to second-degree assault and second-degree theft.1
Randall had previously been convicted of second-degree
theft. Because he was a second felony offender, he faced a 4-
year presumptive term for the class B felony of second-degree
assault and a 2-year presumptive term for the class C felony of
second-degree theft.2
Superior Court Judge Larry D. Card found (in fact,
Randall conceded) that the State had proved several aggravating
factors under AS 12.55.155(c) with respect to the second-degree
assault charge: (c)(10) that Randalls conduct was among the
most serious within the definition of second-degree assault
because, factually, he was guilty of first-degree assault;
(c)(19) that Randall had been adjudicated a delinquent minor for
conduct that would have been a felony had he been an adult; and
(c)(4) that Randall used a dangerous instrument (the automobile)
in the commission of the assault. In addition, with respect to
the second-degree theft charge, Judge Card found that the State
had proved aggravator (c)(21) that Randall had a history of
similar offenses. Randall did not propose any mitigating
factors.
On the charge of second-degree assault, Judge Card
imposed the 4-year presumptive term but added another 4 years of
suspended jail time (i.e., 8 years imprisonment with 4 years
suspended). On the charge of second-degree theft, Judge Card
imposed a sentence of 3 years imprisonment, but he made 2 years
concurrent with Randalls sentence for assault. Thus, Randall
received a composite 4 years to serve.
On appeal, Randall argues that this sentence is
excessive that he should not have received more than 4 years to
serve. He relies on the rule announced in Farmer v. State, 746
P.2d 1300, 1301 (Alaska App. 1987): When an offender is
convicted of multiple crimes, the presumptive term for the most
serious crime [is] a benchmark that is not to be exceeded without
good reason.
But Judge Card found that the State had proved several
aggravating factors. Because of these aggravating factors, Judge
Card was authorized to increase Randalls sentence for second-
degree assault above the 4-year presumptive term. Our review of
the record convinces us that Judge Card would not have been
clearly mistaken if, based on these aggravating factors, he had
sentenced Randall to 4 years to serve for the assault conviction.
It necessarily follows that these aggravating factors constituted
the good cause required by Farmer to support a composite sentence
of 4 years to serve.
Moreover, Randall was convicted of two factually
separate crimes. Although both crimes arose from the same
incident, Randalls theft of the nail gun was over when he
assaulted the store clerk with his car. This fact also supports
Judge Cards decision to impose at least partially consecutive
sentences for these two offenses.
Randall faced an effective minimum sentence of 4 years
to serve for the assault alone (because he proposed no mitigating
factors that would have allowed Judge Card to reduce the
applicable 4-year presumptive term). Randalls separate
conviction for the theft of the nail gun provided good cause for
Judge Card to impose a consecutive half-years imprisonment for
that crime.
The superior courts sentencing decision is AFFIRMED.
_______________________________
1 AS 11.41.210(a)(1) and AS 11.46.130(a)(6), respectively.
2 Second-degree assault is a class B felony, see AS
11.41.210(b), and second felony offenders convicted of this crime
face a 4-year presumptive term. See AS 12.55.125(d)(1). Second-
degree theft is a class C felony, see AS 11.46.130(c), and second
felony offenders convicted of this crime face a 2-year
presumptive term. See AS 12.55.125(e)(1).
