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Custer v. State (04/09/2004) ap-1925
Custer v. State (04/09/2004) ap-1925
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
GILBERT RALPH CUSTER, )
) Court of Appeals No.
A-8634
Appellant, )
Trial Court No. 2KB-99-276 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1925 April 9, 2004]
)
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard D. Savell,
Judge.
Appearances: Jennifer P. Hite, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. Windy O. East, Assistant District
Attorney, Kotzebue, John R. Vacek, District
Attorney, Nome, and Gregg D. Renkes,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Gilbert Ralph Custer appeals the sentence he received
when the superior court revoked his felony probation for the
fourth time in case number 2KB-99-276 Cr and sentenced Custer to
serve all of his remaining suspended jail time: 38 months. With
the imposition of these 38 months imprisonment, Custer has now
been sentenced to a total of 5 years to serve the maximum
sentence for the offense of third-degree assault.
Custer contends that this sentence violates the
sentencing rule announced by this Court in Austin v. State1, and
now codified in AS 12.55.125(k)(2): the rule that, in the
absence of aggravating factors (as defined in AS 12.55.155(c)) or
extraordinary circumstances (as defined in AS 12.55.165), a first
felony offender should not receive a term longer than the
presumptive term established by the legislature for a second
felony offender convicted of the same offense. Custer also
contends that his sentence is excessive because, even though his
probation has been revoked a total of four times, the conduct
underlying these four revocations has not involved serious
criminality.
For the reasons explained here, we conclude that the
superior court was not clearly mistaken when it imposed the 38-
month sentence.
Facts relating to Custers two underlying convictions
Even though Custer has appealed only his
sentence in case number 2KB-99- 276 Cr, it is
impossible to assess the propriety of that sentence
without considering Custers sentence in a companion
case, number 2KB-99-367 Cr. Superior Court Judge
Richard D. Savell had both of these cases before him
when he imposed the sentence that Custer now appeals
(the sentence in case 99-276).
In 1999, Custer was convicted of two separate
felonies: one count of third-degree assault that arose
from an incident in May 1999, and another third-degree
assault that arose from an incident one month later.
Both crimes involved acts of significant domestic
violence that Custer inflicted on L.C., the mother of
his child.
In case number 2KB-99-276 Cr, Custer was
convicted of third-degree assault for kicking down the
door of L.C.s house, beating her, and then trying to
strangle her with a noose that he fashioned from
electrical cord. This assault occurred on May 1, 1999.
A month later, on June 2nd, Custer was
charged with attempted murder in case number 2KB-99-367
Cr after he again broke into L.C.s home, stabbed her
with a kitchen knife, and then beat her with a piece of
firewood. This charge was later reduced to third-
degree assault.
On June 27, 2000, Custer was sentenced for
both of these felony assaults. In each case (99-276
and 99-367) he received a sentence of 5 years
imprisonment with 4 years suspended 1 year to serve.
Custer denies that he committed either crime.
He asserts that L.C. lied about both incidents.
Custers criminal history before he committed these two
felony assaults
Before Custer went to prison for these felony
assaults, he had accumulated a lengthy history of
alcohol-related crimes, both violent and non-violent.
Between 1981 and 1998, Custer was convicted of the
following misdemeanor offenses:
Offense Number of
Convictions
escape
seven
fourth-degree weapons misconduct six
fourth-degree assault four
driving while intoxicated five
resisting arrest three
criminal trespass one
criminal mischief (damage to property)
two
disorderly conduct four
Custers conduct while on felony probation
During the time that Custer was on felony
probation, the State filed five petitions to revoke his
probation.
The first petition was filed in February
2001; it alleged that Custer had violated the
conditions of his probation by drinking. Custers blood
alcohol level was tested at .190 percent on January 18,
2001 and at .200 percent on February 25, 2001. This
first petition was ultimately withdrawn at the request
of Custers probation officer.
The second petition was filed in January
2002. Custer was charged with more drinking, plus the
commission of a new offense second-degree criminal
mischief, for spray-painting obscenities on the side of
a house. Ultimately, Custer admitted the drinking, the
criminal mischief charge was dropped, and the superior
court revoked 6 months of Custers previously suspended
jail time.
The third petition was filed in October 2002;
it alleged more drinking. Custer admitted this charge,
and the superior court revoked another 30 days of
Custers previously suspended jail time.
The fourth petition was filed in December
2002; again, Custer was charged with drinking. This
time, Custer was found lying semi-conscious in a
Fairbanks residence. The owners of the residence
discovered Custer in their house when they heard him
snoring, and they summoned the police to arrest this
uninvited guest. Custers blood alcohol level was .354
percent. Custer admitted this charge, and the superior
court revoked an additional 3 months of Custers
previously suspended jail time.
The fifth petition the current one was
filed in April 2003. This petition alleged that Custer
had been drinking again and that he had refused to
submit to a breath test at the request of a police
officer. This time, Custer went to trial on the
charges. Superior Court Judge Richard D. Savell found
that the charges were proved, and he imposed all of
Custers remaining jail time 38 months.
However, to understand Judge Savells
sentencing decision, it is important to know that each
time Custer violated the conditions of his probation,
the State filed petitions to revoke Custers probation
in both of his felony cases (99-276 and 99-367). Thus,
this was not only Custers fourth revocation of
probation in case number 99-276, but also his fourth
revocation in case number 99-367.
In fact, the Department of Corrections and
the District Attorneys Office both urged Judge Savell
to impose all of Custers remaining suspended jail time
not only the 38 months that remained in case number 99-
276, but also the 44 months that remained in case
number 99-367, for a total of 6 years and 10 months.
Judge Savell acknowledged that Custer had a
significant record of criminal violations, and that
most (if not all) of these violations were related to
alcohol. The judge concluded, based on Custers lengthy
record of offenses, that Custer posed a danger to the
public when he was intoxicated.
However, Judge Savell hastened to add that he
was not sentencing Custer for drinking. Rather, he was
sentencing Custer for the two felony assaults that had
put Custer in front of the court in the first place.
Judge Savell noted that Custers conduct on probation
had not been good. Although Custer had not committed
any new felony offenses, he had repeatedly failed to
comply with the conditions of his probation and, just
as important, he had repeatedly failed to benefit from,
or follow up on, alcohol treatment.
Judge Savell then announced:
The Court: Im not going to revoke all
[of Custers remaining] time [as the probation
officer and the prosecutor have advocated],
but Im taking half of it. [And] Im
recommending [that Custer] be classified to
... the [Department of Corrections] intensive
residential inmate [substance abuse]
treatment program.
Judge Savell then imposed all of Custers remaining 38 months in
case number 99-276, but the judge imposed only 3 months of
Custers remaining 44 months in case number 99-367. The
judge made these two sentences consecutive, for a total of 3
years, 5 months out of a potential 6 years, 10 months.
Custers appeal would normally be dismissed because he
failed to appeal both sentences
As we have just explained, Custers sentence
in case number 99-276 was simply a component of a
composite sentence that Judge Savell imposed when he
revoked Custers probation in both felony assault cases:
99-276 and 99-367.
When a defendant pursues a sentence appeal
after the sentencing court has imposed a composite
sentence for two or more criminal convictions, this
Court assesses whether the defendants combined sentence
is clearly mistaken, given the whole of the defendants
conduct and history.2 Because the question is whether
the combined sentence is justified in light of the
entirety of the defendants conduct and history, the law
does not require that a specific sentence imposed for a
particular count or offense be individually justifiable
as if that one crime were considered in isolation.3
For these reasons, an appellate court will
not hear a defendants challenge to a composite sentence
unless the defendant has appealed each of the sentences
that contributes to the composite total so that the
court can meaningfully evaluate the whole. See Preston
v. State, 583 P.2d 787, 788 (Alaska 1978).
Custers case is governed by these rules. His
probation was simultaneously revoked in two separate
cases, and both the parties and the superior court
treated these two cases as a single consolidated case.
The prosecutor and the defense attorney did not present
separate arguments concerning the two underlying cases.
Instead, both they and the superior court perceived
that the issue to be decided at Custers sentencing was
how much of Custers total suspended jail time from both
cases 6 years, 10 months should be imposed for his
violations of probation.
We have previously recognized that when a
sentencing judge faces this type of case, the judge
might not individually craft each of the defendants
sentences. Judges are often more concerned with the
total sentence that the defendant should receive rather
than the precise amount of imprisonment to be imposed
for each separate count.4 In such circumstances, the
fact that the judge imposes a greater sentence on one
count and a lesser sentence on another count may be
wholly fortuitous.5
The record indicates that this was the case
with Custers sentencing. Judge Savell sentenced Custer
to 3 years, 2 months to serve in case number 99-276,
but only a consecutive 3 months to serve in case number
99-367 (the case that arguably involved the more
serious underlying conduct). The judge did not discuss
the two cases separately; rather, he announced that he
had decided to revoke half of Custers remaining
suspended time. Half of Custers remaining time was 3
years, 5 months. It appears that Judge Savell chose to
achieve this composite sentence through the
administrative expedient of revoking all of Custers
remaining time in case number 99-276 (thus ending
Custers probation in that case), then revoking enough
jail time in case number 99-367 to reach the total of 3
years, 5 months.
For obvious reasons, Custer has not appealed
the imposition of the 3-month sentence in case number
99-367. He has appealed only his 3-year, 2-month
sentence in case number 99-276. But it is improper to
consider this second sentence in isolation. The
question is whether Custers total sentence of 3 years,
5 months is clearly mistaken, given the whole of
Custers criminal history, his conduct in the two
underlying criminal cases, and his subsequent conduct
on probation.
This being said, we have concluded that the
present record allows us to properly evaluate Custers
composite sentence. His pre-sentence report describes
the facts underlying both criminal cases, the same
probation revocation petitions were filed in both
cases, and a single sentencing hearing was devoted to
both cases. For these reasons, we conclude that we can
properly decide the merits of this case. We will
therefore overlook the procedural irregularity in
Custers appeal (i.e., the fact that he has appealed
only one of his two sentences).
Custers sentence does not violate the Austin rule
Custer has now received a total sentence of 5
years to serve for third-degree assault. This is the
maximum sentence that can be imposed for this offense.
Custer asserts that this 5-year sentence violates the
rule codified in AS 12.55.125(k)(2) that a first
felony offender should normally receive no more time to
serve than the presumptive term for a second felony
offender convicted of the same offense.
But we have held that when a history of
probation violations establishes a persons poor
prospects for rehabilitation, that fact may be deemed
an extraordinary circumstance justifying the imposition
of a sentence in excess of the Austin limits. Chrisman
v. State, 789 P.2d 370, 371 (Alaska App. 1990). As we
explained in Chrisman,
The relevant question in such cases is
whether the totality of the circumstances
upon revocation of probation would have
justified a sentence in excess of the Austin
limits if known when the original sentence
was imposed. Before finding that an
offenders probation violations justify a
total sentence exceeding the applicable
presumptive term for a second felony
offender, the sentencing court must conclude
that the offenders poor conduct on probation,
when viewed in conjunction with all of the
originally available sentencing information,
renders the case even more serious and
therefore deserving of even greater
punishment than the case of a typical second
felony offender committing a typical offense
of the same class.
Chrisman, 789 P.2d at 371.
Here, Custer was convicted of two separate, serious
acts of domestic violence. Even though Custers prior criminal
history included literally dozens of offenses, both violent and
non-violent, he received relatively lenient sentences for these
felony assaults: only 1 year to serve in each case.
It is apparent from Custers criminal history that he
has struggled with alcoholism for at least two decades. It is
also apparent that Custer has repeatedly resorted to violence and
other anti-social behavior when he is intoxicated. Custers
felony probation was intended to provide him with an avenue for
coping with his alcohol problem, but his history on probation has
been one relapse after another. Judge Savell could reasonably
conclude that Custer would continue to fail at alcohol treatment,
and thus continue to pose a danger to the public, unless Custer
was in prison and was forced to participate in a treatment
program.
For these reasons, we conclude that the facts of
Custers probation violations constituted good cause for a
sentence exceeding the normal Austin ceiling.
Custers composite sentence is not clearly mistaken
Custer contends that his 3-year, 2-month
sentence in case number 99-276 is mistakenly severe.
But, as we explained above, the real question is
whether Custers composite sentence in both cases his
sentence of 3 years, 5 months is clearly mistaken,
given the whole of Custers criminal history, the
conduct underlying his two felony assault convictions,
and his behavior while on probation.6
Custer faced revocation of his probation in
both of his felony assault cases, and he therefore
faced a total of 82 months (6 years, 10 months) of
previously suspended jail time, when he appeared in
front of Judge Savell for the revocation sentencing
hearing on June 9, 2003. Given Custers two underlying
felony offenses, his lengthy list of other offenses,
and his repeated failures to cope with his alcohol
problem during his felony probation, Judge Savell was
not clearly mistaken when he imposed half of Custers
remaining suspended time 3 years, 5 months.
Conclusion
The sentencing decision of the superior court
is AFFIRMED.
_______________________________
1 627 P.2d 657, 657-58 (Alaska App. 1981).
2 Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
3 Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v.
State, 765 P.2d 107, 109 (Alaska App. 1988); Comegys, 747
P.2d at 558-59.
4 See Allain v. State, 810 P.2d 1019, 1022 (Alaska App.
1991).
5 Id.
6 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(an appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
