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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
| CHRISTOPHER MICHAEL HALL, | ) |
| ) Court of Appeals No. A-9437 | |
| Appellant, | ) Trial Court No. 3AN-05-525 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2066 October 13, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Judy M. Scherger, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. John
Skidmore, Assistant District Attorney, and
Leonard M. Linton Jr., District Attorney,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In early 2004, Christopher Michael Hall and his
girlfriend tried to pass five checks, totaling almost $8000, on
bank accounts that Hall knew were either closed or frozen. For
this conduct, Hall was charged with five counts of issuing a bad
check, AS 11.46.280(a).
While Hall was awaiting trial on these charges, Hall
wrote a new series of more than 100 bad checks checks backed by
insufficient funds, or drawn on closed accounts totaling
approximately $65,000. These checks involved eleven different
accounts at eight financial institutions, and Hall defrauded more
than two dozen victims.
For this new conduct, Hall was charged with scheme to
defraud, AS 11.46.600(a)(2). He was also charged with violating
the conditions of his release in the pending bad check case,
AS 11.56.757(a).
Scheme to defraud is a class B felony.1 Halls act of
violating the conditions of his release was a class A misdemeanor
because he was on release from felony charges.2
To resolve these charges, Hall reached a plea bargain
with the State. Under the terms of this agreement, Hall pleaded
no contest to the two new charges (scheme to defraud and
violation of conditions of release), and the State dismissed the
pending 2004 bad check case. There was no agreement concerning
the sentences that Hall should receive for the two crimes of
scheme to defraud and violating the conditions of his release.
Hall was a first felony offender. Hall had one prior
misdemeanor conviction, a 2001 conviction for issuing a bad
check, but Hall received a suspended imposition of sentence for
this crime, and his conviction was set aside at the end of a
years probation.
Hall served in the Army for a year and a half (from
August 2001 until March 2003), and he then received a general
discharge for unsatisfactory performance in part, because he
wrote bad checks during his military service.
(While Hall was awaiting trial on the 2004 bad check
charges, he attempted to obtain a continuance of a court
proceeding by submitting a forged document. This forged document
purported to be a memorandum from the Army stating that Hall was
about to be deployed to Japan. In fact, as noted above, Hall had
been discharged from the Army at the end of March 2003.)
At Halls sentencing hearing in the present case, his
attorney argued that Hall was an immature, youthful offender who
deserved another chance. The defense attorney urged the superior
court to suspend imposition of Halls sentence, conditioned on his
serving 1 year in jail. See AS 12.55.085 086.
Superior Court Judge Larry D. Card concluded a
suspended imposition of sentence would be inconsistent with the
Chaney sentencing criteria the sentencing criteria first
announced by the supreme court in State v. Chaney3 and later
codified in AS 12.55.005.
Judge Card noted that Hall did not simply write a bad
check or two, involving a small amount of money. Rather, Hall
engaged in a lengthy scheme to defraud a scheme that involved
numerous victims, and that involved bad checks totaling over
$60,000. Judge Card further noted that, because of the greater
societal harm caused by such schemes to defraud, the legislature
has classified this type of behavior as a higher degree of
felony, and sentencing courts are obliged to view this type of
behavior as a serious offense.
Judge Card acknowledged that Hall was a youthful
offender and that, for this reason, Halls rehabilitation was an
important sentencing goal. However, Judge Card concluded that
Halls sentence had to adequately express the communitys
condemnation of this type of criminal behavior.
Judge Card also concluded that another important aim of
Halls sentence should be to deter Hall from future criminal
behavior. The judge noted that it was not good that Hall had
previously been convicted of writing a bad check, even though
that prior conviction was ultimately set aside after Hall
completed his probation.
For these reasons, Judge Card sentenced Hall to 4 years
imprisonment with 2 years suspended i.e., 2 years to serve for
the offense of scheme to defraud. For Halls separate offense of
violating the conditions of his release from the now-dismissed
2004 bad check case, Judge Card imposed a consecutive 6 months to
serve (1 years imprisonment with 6 months suspended). Thus,
Halls composite sentence is 5 years with 2 years suspended.
In this appeal, Hall argues that Judge Card was clearly
mistaken when he rejected Halls request for a suspended
imposition of sentence. Hall relies primarily on the Alaska
Supreme Courts decision in Leuch v. State, 633 P.2d 1006 (Alaska
1981). In Leuch, the supreme court declared:
[When] an offense is against only property,
involving no physical threats or violence;
[when] it is the offenders first felony
conviction; [and when the offender has] no
background of unsuccessful paroles or
probations which would indicate that
probation is unsuitable to protect the public
[and] to deter the offender, ... probation,
coupled with restitution, is the appropriate
sentence unless other factors militate
against it.
Leuch, 633 P.2d at 1013-14 (footnotes
omitted). Hall argues that he fits within
this description and that, for this reason,
Judge Card was clearly mistaken when he
declined to give Hall a suspended imposition
of sentence.
Halls argument misapprehends the
Leuch decision on several levels.
First, Leuch does not counsel
giving all property offenders a suspended
imposition of sentence. For purposes of
Leuch, a sentence of probation is any
sentence that involves less than 90 days of
imprisonment. See Leuch, 633 P.2d at 1014 n.
22; State v. Monk, 886 P.2d 1315, 1317 n. 4
(Alaska App. 1994); State v. Jackson, 776
P.2d 320, 326-27 (Alaska App. 1989).
Second, Leuch does not create a
hard-and-fast rule that defendants who meet
the above-quoted description should receive
probationary sentences.
The Leuch decision itself says
that, even when a defendant has committed a
non-violent property offense, and even when
the defendant has no record of failed
probations or paroles, a sentence of
incarceration will nevertheless be justified
by a finding that a [probationary] sentence
would fail to deter the defendant ... to the
requisite degree. Leuch, 633 P.2d at 1011.
Even though Hall apparently
satisfactorily completed the probation from
his 2001 bad check case, Halls history
justifies Judge Cards conclusion that a
probationary sentence would not adequately
deter Hall. After being convicted of issuing
a bad check in 2001, and after completing a
years probation, Hall returned to this same
criminal behavior in early 2004; he and his
girlfriend uttered five bad checks totaling
almost $8000. Then, after Hall was indicted
for these crimes, and while Hall was released
on bail, he returned to the same criminal
behavior engaging in a scheme to defraud
that involved dozens of victims and bad
checks totaling approximately $65,000. Based
on Halls renewed criminal behavior while on
bail release, Judge Card could reasonably
conclude that giving Hall another suspended
imposition of sentence would fail to deter
[Hall] ... to the requisite degree.
Moreover, the Leuch decision also
declares that even when the goal of special
deterrence that is, deterrence of the
defendant personally would be satisfied by a
probationary sentence, [t]he preference for
[probationary sentences] may be overridden
... by the ... Chaney considerations [of]
general deterrence [i.e., deterrence of
others] and community condemnation. Leuch,
633 P.2d at 1011. In other words, even in
cases where a first offender has committed a
non-violent property crime, the defendants
criminal behavior may be so serious that a
probationary sentence would be inconsistent
with the sentencing goals of expressing
community condemnation for the behavior and
deterring others from engaging in similar
crimes.
This Court addressed this same
concept in State v. Jackson, 776 P.2d 320
(Alaska App. 1989). In Jackson, we
established a benchmark sentencing range of 1
to 4 years imprisonment for first felony
offenders convicted of class B felonies.4 We
acknowledged that the category of class B
felonies included some non-violent property
offenses. We nevertheless concluded that the
Jackson benchmark range of 1 to 4 years to
serve was fully consistent with Leuch:
Our conclusion that a significant term
of incarceration will be appropriate for
typical first offenders who commit class B
felonies is not inconsistent with the supreme
courts decision in Leuch v. State, 633 P.2d
1006 (Alaska 1981). In Leuch, the court
indicated that, for first offenders convicted
of crimes against property, probation,
coupled with restitution, is the appropriate
sentence unless other factors militate
against it. 633 P.2d at 1013-14. Leuch,
however, dealt with convictions for grand
theft under our former criminal code. The
convictions involved conduct that would have
amounted to theft in the second degree, a
class C felony under our current criminal
code. See AS 11.46.130. The decision in
Leuch expressly recognized that, even with
property crimes, the seriousness of any given
offense is a legitimate consideration in
determining the appropriateness of a
probationary term. In fact, in Leuchs case,
the court declined to apply the rule favoring
imposition of a probationary term. The court
concluded that, because Leuch had a
misdemeanor record and because one of the two
felony thefts for which he was convicted
involved large-scale crime and had a severe
impact on the uninsured victim, 633 P.2d at
1014, a period of incarceration was
appropriate. Under Alaskas revised criminal
code, only aggravated property crimes are
designated as class B felonies. In contrast
to Leuch, in which the most serious theft
involved property valued at approximately
$12,500, under the current code theft in the
first degree, a class B felony, is restricted
to cases involving property valued at $25,000
or more. See AS 11.46.130. Thus, in most
cases, the inherent seriousness of property
offenses that qualify as class B felonies
will justify an exception to the rule in
Leuch and call for the imposition of a
nonprobationary term. See Karr v. State, 686
P.2d 1192, 1195-96 (Alaska 1984).
Jackson, 776 P.2d at 326 n. 4.
Because Hall was a first felony
offender convicted of a class B felony
(scheme to defraud), his sentencing was
governed by the Jackson benchmark range.
Judge Card sentenced Hall to serve 2 years in
prison a term of imprisonment that falls in
the middle of the benchmark range.
As we recently reiterated in State
v. Brueggeman, 24 P.3d 583 (Alaska App.
2001), Jackson stands for the principle that
when the legislature has determined that a
particular crime is serious enough to be
classified as a B felony, a first offender
convicted of that crime should not receive a
probationary sentence i.e., a sentence of
less than 90 days to serve unless the
defendants case is significantly mitigated in
terms of both the offender and the offense.5
Judge Card concluded that Halls
offense was of at least typical seriousness
within the range of schemes to defraud, and
the judge further concluded that Halls prior
conviction for writing a bad check suggested
that it might be difficult to deter Hall from
future criminal conduct. Having
independently reviewed the record in Halls
case, we conclude that Judge Card was not
clearly mistaken when he rejected Halls
request for a suspended imposition of
sentence and, instead, sentenced Hall to
serve a term of imprisonment in the middle of
the Jackson benchmark sentencing range.
Hall also argues that, even if his
sentence for scheme to defraud was
reasonable, Judge Card should not have
imposed a consecutive 6 months imprisonment
for Halls other offense, violation of the
conditions of release. Hall contends that
his sentence for this other offense should
have been imposed concurrently rather than
consecutively.
When we review the composite
sentence that a defendant has received for
two or more criminal convictions, our duty is
to assess whether the composite sentence is
clearly mistaken, given the whole of the
defendants conduct and history.6 We note
that Hall did not simply violate the
conditions of his release from the 2004 bad
check charges. Rather, he continued to
engage in exactly the same type of criminal
behavior that led to those bad check charges.
Moreover, Halls criminal behavior did not
simply continue. Rather, it became
significantly worse, both in terms of the
amount of money involved and the number of
victims defrauded. Given the totality of
Halls conduct, we conclude that Halls
composite sentence of 2 years to serve is not
clearly mistaken.
The superior courts sentencing
decision is AFFIRMED.
_______________________________
1AS 11.46.600(b).
2AS 11.56.757(b)(1).
3477 P.2d 441, 443-44 (Alaska 1970).
4Jackson, 776 P.2d at 326.
5Brueggeman, 24 P.3d at 590, quoting Jackson, 776 P.2d at
327.
6Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.
1987).
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