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State v. Short (08/06/2004) ap-1944
State v. Short (08/06/2004) ap-1944
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
STATE OF ALASKA, )
) Court of Appeals No.
A-8601
Appellant, )
Trial Court No. 4FA-02-3310 CR
)
v. ) O P I N I O
N
)
JOHN B. SHORT, )
)
Appellee. )
[No. 1944 - August 6, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellant. Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
The presentence report in this case included the
information that the defendant, as a juvenile, had been charged
with burglary in the second degree and theft in the third degree.
The report stated that these offenses had been informally
adjusted with a letter. The superior court granted the
defendants motion to strike this information from the presentence
report on the ground that this information constituted a juvenile
police contact that the Alaska Supreme Court, in Robinson v.
State,1 stated should not be made part of a presentence report.
The State appeals. We conclude that the superior court erred in
ruling that Robinson required it to strike the information.
Factual and procedural background
John B. Short was convicted of theft in the second
degree.2 In the presentence report, the probation officer
included, under a section which outlined Shorts prior criminal
history information, that on July 6, 1997, when he was a
juvenile, Short and a co-defendant broke into the Copper River
Cash Store and stole approximately $84.00 worth of tobacco
products. Based on this conduct, Short had been charged with
burglary in the second degree and theft in the third degree.
Under disposition, the presentence report stated that this
juvenile matter was adjusted with a letter.
Prior to sentencing in the present case, Short moved to
delete this material from his presentence report. Short pointed
out that in Robinson, the Alaska Supreme Court disapproved of
including in an adult presentence report a record of a juveniles
police contacts.3 Superior Court Judge Charles R. Pengilly
granted Shorts motion to strike, concluding that Robinson
required him to delete the reference to Shorts burglary and theft
offenses. Judge Pengilly sentenced Short to 12 months with 8
months suspended. The State now appeals Judge Pengillys order
striking the presentence reports reference to Shorts juvenile
burglary and theft offenses.
Whether a presentence report may reference an
adult defendants juvenile record
As a preliminary matter, Short contends that the
probation officer had no authority to have access to Shorts
juvenile records without obtaining a prior court order. Short
asks us to overrule McCoy v. State4 and Hart v. State.5 We
adhere to those decisions.
Shorts major contention is that Robinson forbids using
an adult defendants prior juvenile record when that record
consists of charges that have not gone to court but have been
informally adjusted. Short argues that Robinson precludes using
this information. In Robinson, a jury convicted Robinson of two
offenses: robbery and using or carrying a firearm during the
commission of the robbery.6 The supreme court held that
Robinson could only be convicted of a single offense of armed
robbery.7 The decision also discussed issues concerning
Robinsons eligibility for parole and the need to obtain a
psychological evaluation before sentencing a young offender to a
substantial sentence of imprisonment.8 In a footnote, the court
stated:
The presentence report and the transcript of
the sentencing proceedings show that undue
emphasis was placed on the number of
Robinsons purported police contacts while a
juvenile. Sentencing courts should be wary
of relying on a record of police contacts or
on arrest records in determining an
appropriate sentence. We are of the further
view that a juveniles police contacts should
not be made part of a presentence report.
The dangers inherent in the use of such
records and in giving undue weight to such
factors should be readily apparent to the
trial judge.[9]
In the footnote, the court also referred to its decision in
Waters v. State.10
In Waters, a landmark decision in which the supreme
court set out different categories of seriousness of drug
offenses for sentencing, the supreme court affirmed Waterss
sentence.11 After affirming Waterss sentence, the court stated:
One other aspect of this appeal remains for
comment. The transcript of the sentencing
proceedings shows that the trial judge placed
perhaps undue emphasis on the number of
appellants purported police contacts as
reflected in an FBI report. ... Sentencing
courts should be wary of relying on a record
of police contacts or an arrest record in
determining an appropriate sentence. The
dangers inherent in the use of such records
and in giving undue weight to such factors
should be readily apparent to the trial
judge.[12]
Several years later, in Nukapigak v. State,13 the
probation officer preparing the presentence report set out
conversations that she had with residents of Point Lay,
Nukapigaks home.14 Many of these people reported that Nukapigak
became extremely violent when he drank.15 The trial judge placed
considerable emphasis on these reports in sentencing Nukapigak.16
Nukapigak appealed, arguing that the trial judge erred in relying
on these hearsay reports.17 Nukapigak contended that [p]ersons
interviewed by the author of the presentence report had no first-
hand knowledge of the events described and, therefore, such
information concerning his past antisocial behavior should not
have been considered by the sentencing judge.18
The supreme court disagreed. The court pointed out
that trial judges need to have a broad range of information to
impose an appropriate sentence.19 The supreme court emphasized
two points. The first point was that Nukapigak had the ability
to challenge the information in the presentence report and had
not done so.20 The court stated that this alone is sufficient to
support our decision to affirm his sentences.21 The supreme
court also pointed out that the allegations against Nukapigak
were not bare accusations or unexplained arrests which constitute
unexplained police contacts.22
From these cases, we conclude that when the supreme
court stated that presentence reports should not include
unexplained police contacts or arrests, it did not intend to
preclude a trial judge from considering an adult defendants prior
juvenile record such as the record that existed in this case.
This was not an unexplained police contact. The presentence
report described a specific incident that on July 6, 1997, the
defendant and an accomplice broke into the Copper River Cash
Store and stole approximately $84.00 worth of tobacco products.
The presentence report lists what appears to be the number of the
police report which the Alaska State Troopers issued after
investigating the incident. The presentence report indicates
that the matter was informally adjusted.
Alaska Statute 47.12 governs delinquent minors. Alaska
Statute 47.12.060 provides that the Department of Health and
Social Services may informally adjust charges brought against
minors. According to that statute, if the department elects to
make an informal adjustment, the informal adjustment must be made
with the agreement or consent of the minor and the minors parents
or guardians to the terms and conditions of the adjustment.23 The
procedure set out in AS 47.12.060 appears to require the
department to review the charges and the information supporting
them, to discuss the charges with the minor and his parents, and
to obtain their consent to the conditions of the adjustment.
Therefore, on its face, an informal disposition of a juvenile
case appears to be much more substantial than a mere police
contact or unexplained arrest record, which the supreme court
cautioned against using. We accordingly conclude that the author
of a presentence report can properly include this information in
the report. Of course, a defendant can challenge the accuracy of
this information.24
Conclusion
We accordingly conclude that the superior court judge
erred in concluding that Robinson v. State required him to strike
the reference to Shorts juvenile record in the presentence
report. We therefore reverse this ruling. On remand, Short is
entitled to challenge this information on the ground that it is
not sufficiently verified.
The order striking Shorts juvenile record from the
presentence report is REVERSED.
_______________________________
1 484 P.2d 686, 690 n.11 (Alaska 1971).
2 AS 11.46.130(a).
3 Robinson, 484 P.2d at 690 n.11.
4 80 P.3d 751 (Alaska App. 2002).
5 75 P.3d 1073 (Alaska App. 2003).
6 Robinson, 484 P.2d at 687.
7 Id. at 687-88.
8 Id. at 689-90.
9 Id. at 690 n.11 (quotations and citations omitted); see
also Parks v. State, 571 P.2d 1003, 1004 n.6 (Alaska 1977) (We
reiterate our previous disapprovals of the use of unexplained
police contacts or arrest records.) (citing Thurlkill v. State,
551 P.2d 541, 544 (Alaska 1976); Mattern v. State, 500 P.2d 228,
234-35 (Alaska 1972); Griggs v. State, 494 P.2d 795, 798 (Alaska
1972); Robinson v. State, 484 P.2d 686, 690 n.11 (Alaska 1971);
Waters v. State, 483 P.2d 199, 202-03 (Alaska 1971)).
10 483 P.2d 199 (Alaska 1971).
11 Id. at 200-03.
12 Id. at 203.
13 562 P.2d 697 (Alaska 1977), affirmed on rehearing 576
P.2d 982 (Alaska 1978).
14 562 P.2d at 700.
15 Id.
16 Id.
17 Id.
18 576 P.2d at 983.
19 Id. at 984.
20 562 P.2d at 701.
21 576 P.2d at 983.
22 562 P.2d at 701.
23 AS 47.12.060(b)(1).
24 Alaska R. Crim. P. 32.1(d)(5).
