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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MELVIN OYOUMICK, | ) |
| ) Court of Appeals No. A-9736 | |
| Appellant, | ) Trial Court No. 2NO-02-973 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2172 June 6, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Eric A. Aarseth,
Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This appeal presents several questions regarding the
rules that govern the re-sentencing of first felony offenders
under Alaskas pre-2005 sentencing law when their probation is
revoked.
The defendant, Melvin Oyoumick, was convicted of
attempted second-degree sexual abuse of a minor, a class C
felony. Oyoumick was a first felony offender. Because no
presumptive term was prescribed for first felony offenders
convicted of class C felonies under the pre-2005 Alaska
sentencing law, Oyoumicks sentencing was governed by former
AS 12.55.125(k)(2) the legislatures codification of the first-
offender sentencing rule that was first announced by this Court
in Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981).
Oyoumick initially received a sentence of 3 years
imprisonment with 2 years suspended a sentence that did not
require proof of aggravating factors under former
AS 12.55.125(k)(2) because Oyoumicks time to serve did not exceed
the 2-year presumptive term of imprisonment that would have
applied to a second felony offender convicted of the same
offense.1
After serving his 1-year prison term, Oyoumick was
released on probation. In November 2004, the State petitioned
the superior court to revoke Oyoumicks probation because a breath
test administered by his probation officer showed that he was
intoxicated. (Oyoumicks blood alcohol content was .119 percent.)
The superior court ordered Oyoumick to obtain an alcohol
assessment, but the court returned him to probation.
In April 2006, the State again petitioned the superior
court to revoke Oyoumicks probation after he was found
intoxicated on the streets of Anchorage. (His blood alcohol
content was .263 percent.) At this point, Oyoumick decided to
decline further probation, and he asked the superior court to
impose a sentence consisting solely of time to serve. After
hearing the parties arguments regarding the proper sentence, the
superior court ordered Oyoumick to serve the remaining 2 years of
his sentence. This brought Oyoumicks total term of imprisonment
to 3 years to serve a sentence which, had it been imposed
initially, would have required proof of aggravating factors under
former AS 12.55.125(k)(2).
Oyoumick claims that this sentence violates his Sixth
Amendment right to jury trial under Blakely v. Washington,2
because he has now (following the revocation of his probation)
received a sentence that would have required proof of aggravating
factors had it been imposed initially.
(At Oyoumicks original sentencing, the judge found
three aggravating factors under AS 12.55.155(c). However, these
aggravating factors were not Blakely-compliant that is, they did
not rest on Oyoumicks prior convictions, nor were they conceded
by Oyoumick during the sentencing proceedings.)
We addressed a similar situation in Surrells v. State,
151 P.3d 483 (Alaska App. 2006). The defendant in Surrells was a
pre-March 2005 first felony offender who initially received a
sentence that did not require proof of aggravating factors under
former AS 12.55.125(k)(2); in other words, the defendant received
no more time to serve than the presumptive term prescribed for a
second felony offender convicted of the same offense. In
Surrells, we held that the right to jury trial recognized in
Blakely does not limit the superior courts authority to re-
sentence such a defendant after the court revokes their probation
even if the defendants new sentence exceeds the presumptive term
that would apply to a second felony offender. Id. at 488-490.
Oyoumick argues that Surrells was wrongly decided.
However, with one exception (which we discuss next in this
opinion), Oyoumicks attacks on Surrells are cursory and
unconvincing.
In previous decisions, this Court has declared that
when the superior court revokes the probation of a first felony
offender under the pre-2005 sentencing law, the court should not
impose a total time to serve that exceeds the presumptive term
for a second felony offender unless the overall circumstances of
the case (the defendants background, the facts of the original
offense, and the defendants conduct while on probation)
demonstrate that the defendants case is more serious than that of
a typical second felony offender convicted of the same offense.3
Phrased another way, the relevant question facing the
superior court in such cases is whether the totality of the
circumstances all the facts presented to the court at the
original sentencing proceedings, plus all the facts presented to
the court during the probation revocation proceedings would have
justified a sentence in excess of the Austin ceiling if this
totality of circumstances had been known when the original
sentence was imposed.4
In Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986),
this Court clarified that no particular aggravating factor need
be proved in order to justify the imposition of a probation
revocation sentence more severe than the presumptive term for a
second felony offender. Rather, we declared that if a defendants
probation violations established that the defendant had unusually
poor prospects for rehabilitation, this fact could be deemed an
extraordinary circumstance justifying the imposition of a
probation revocation sentence in excess of the normal Austin
ceiling. 725 P.2d at 724; see also Kriner v. State, 798 P.2d
359, 361 (Alaska App. 1990).
And in Surrells, we held that the Blakely right of jury
trial does not apply to the superior courts finding of
aggravating circumstances or extraordinary circumstances at a
probation revocation hearing. 151 P.3d at 492-95.
In the course of our discussion of this point in
Surrells, we declared that this Court has never held that, at
probation revocation proceedings, the sentencing court had to
find aggravating factors or extraordinary circumstances by clear
and convincing evidence as opposed to the preponderance of the
evidence standard that normally applies at probation revocation
hearings. Id. at 492. This statement was wrong. As Oyoumick
points out in his brief, this Court squarely held in Andrew v.
State, 835 P.2d 1251, 1254 (Alaska App. 1992), that, for Austin
rule purposes, aggravating factors or extraordinary circumstances
must be established by clear and convincing evidence ... when
they occur in the context of probation revocation proceedings.
Nevertheless, even with the standard of proof clarified
as proof by clear and convincing evidence, we stand by our
conclusion in Surrells that
the probation revocation rules ... announced
in Chrisman, Luepke, and Witt are not formal
requirements of Alaskas [pre-2005] sentencing
statutes. Rather, these rules are guidelines
guidelines designed to avoid unjustified
sentencing disparity in cases not governed by
the presumptive sentencing statutes. And
because the rules announced in Chrisman,
Luepke, and Witt are guidelines, the Blakely
right to jury trial does not apply to them.
Surrells, 151 P.3d at 494.
Accordingly, we reject Oyoumicks
claim that the superior court violated
Blakely when the court sentenced Oyoumick to
3 years to serve after Oyoumick declined
further probation.
Even though the superior courts
authority to re-sentence Oyoumick was not
restricted by Blakely, Oyoumicks re-
sentencing was governed by several rules
under state law. The remainder of Oyoumicks
arguments involve alleged violations of these
state sentencing rules.
This Court has held that a
sentencing judge is not allowed to
automatically impose all of a defendants
suspended jail time when the defendant
violates the conditions of probation.
Rather, the judge must consider the totality
of the circumstances (the defendants
background and original offense, coupled with
the defendants conduct on probation) and then
weigh these circumstances in light of the
sentencing criteria codified in AS 12.55.
005.5
These principles apply equally to
situations like Oyoumicks case, where a
defendant refuses further probation. The
fact that a defendant decides to refuse
further probation does not, in itself,
automatically justify imposition of the
defendants entire remaining suspended jail
time.6
Moreover, as explained above, if
the judge at a probation revocation
proceeding wishes to impose a total term to
serve that exceeds the presumptive term for a
second felony offender convicted of the same
offense, the judge must affirmatively find,
by clear and convincing evidence, that the
totality of the defendants background and
conduct (including the defendants conduct
while on probation) demonstrates that the
defendants case is more serious than that of
a typical second felony offender convicted of
the same offense in other words, that the
circumstances would have justified a sentence
in excess of the Austin ceiling if these
circumstances had been known when the
original sentence was imposed.
Oyoumick contends that the judge
who imposed his probation revocation
sentence, Superior Court Judge Eric A.
Aarseth, violated these principles by
(1) automatically sentencing Oyoumick to
serve the entire remaining 2 years in prison
after Oyoumick declined further probation,
and by (2) failing to make a finding that the
circumstances of Oyoumicks case constituted
either aggravating factors or extraordinary
circumstances. But the record does not bear
out Oyoumicks claims.
It is true that, during the
sentencing hearing, Judge Aarseth declared
that he had never had another defendant say
that they rejected probation but wanted
something less than all of the remaining
suspended time to be imposed. Nevertheless,
Judge Aarseth recognized that Oyoumick was
asking him to impose something less than the
entire remaining 2 years, and the judge
declared that one of his tasks at the hearing
would be to decide whether ... some, none, or
all of those 2 years are going to be imposed.
A little later in the sentencing
hearing, Judge Aarseth expressly declared
that he was not simply saying, theres 2 years
[left on Oyoumicks sentence], bam! you know,
impose [the 2 years] and off we go. Instead,
Judge Aarseth told Oyoumicks attorney, Im
listening to your argument. Im willing to
make that decision [as to whether to impose
the entire remaining jail time].
In other words, the record shows
that Judge Aarseth did not simply impose 2
years because that was how much time remained
on Oyoumicks sentence. The next question is
whether Judge Aarseth abused his sentencing
discretion when he ultimately decided to
impose the entire remaining 2 years.
The prosecutor actively argued that
Judge Aarseth should impose all of Oyoumicks
remaining jail time. The prosecutor pointed
out that, in addition to his violations of
probation, Oyoumick had several prior
misdemeanor convictions, he appeared to have
an uncontrollable addiction to alcohol, and
he had declined to participate in sex
offender treatment.
In response, Oyoumicks attorney
pointed out that Oyoumick had voluntarily
relinquished his parental rights, thus
addressing the family issue that came up
because of these allegations [of sexual
abuse]. The defense attorney also argued
that Oyoumick had learned his lesson about
alcohol abuse, because his drinking had
landed him back in jail. In sum, the defense
attorney urged Judge Aarseth to follow the
probation officers recommendation of only 1
more year to serve.
(The defense attorney also candidly
admitted that, in large measure, her
arguments about the applicable sentencing law
were being put forward in defense of
principle rather than for the actual effect
that they would have on Oyoumicks situation.
The defense attorney told Judge Aarseth that,
because Oyoumick had been incarcerated
pending the probation revocation hearing, he
[had already] done about 22 months of the 3-
year sentence. In other words, he [was
already] so close to having done all [his]
time apparently, because of good time
credit.)
After hearing these arguments, and
after Oyoumick declined the right of
allocution, Judge Aarseth announced his
decision. Acknowledging that the defense
attorney had made very strong arguments in
Oyoumicks favor, Judge Aarseth nevertheless
concluded that he should impose all of the
remaining 2 years of Oyoumicks sentence. He
explained his decision this way:
The Court: Judge Esch [the original
sentencing judge] made a thorough
consideration of all of the facts of the case
of you as a person, of the offense itself,
[and of] the circumstances of the offense.
He ... obviously was placing significant
emphasis on [the sentencing goal of]
rehabilitation by suspending two years of the
[jail] time. ...
[I interpret] Judge Esch [as saying], Im
going to suspend a certain amount [of jail
time] because I believe that rehabilitation
ought to be a factor ... , and I believe that
there is potential for the defendant to do
that. ...
[But] when a defendant comes back and
says, Im going to reject [probation], Im
basically going to eliminate your ability as
a judge and [the ability of the] justice
system to be able to address that [goal] of
rehabilitation, ... [this] requires [me] to
take a look at [the remaining] sentencing
criteria[.]
. . .
And not only [are you] rejecting
probation, [but] Im also seeing what the
probation officer is reporting. ... [The
officers report] talks about you as an
untreated sex offender, and it [describes]
statements made by you about [not needing]
treatment[.] ...
That tells me a lot [about] what I need
to do in terms -of the sentencing criteria.
... It is the decision of this Court that,
... because the rehabilitation [component of
the original sentence] has been removed ...
by the defendant from my discretion, both in
his voluntary decision [to reject further
probation supervision] and in [his] conduct
... as reported by the probation officer, ...
I [need to] impose the [entire] remaining
suspended time.
As explained above, this Court held
in Witt v. State that no particular
aggravating factor need be proved in order to
justify the imposition of a probation
revocation sentence more severe than the
presumptive term for a second felony
offender. Rather, we declared that if a
defendants probation violations established
that the defendant had unusually poor
prospects for rehabilitation, this fact could
be deemed an extraordinary circumstance
justifying the imposition of a probation
revocation sentence in excess of the normal
Austin ceiling. 725 P.2d at 724.
Here, Oyoumicks conduct on
probation in particular, his drinking and
his rejection of sex offender therapy
provided a reasonable basis for Judge Aarseth
to be pessimistic about Oyoumicks prospects
for rehabilitation. In addition, Oyoumicks
decision to reject further court supervision
effectively barred the superior court and the
Department of Corrections from pursuing
future efforts to achieve Oyoumicks
rehabilitation. Upon this record, Judge
Aarseth could reasonably conclude that
Oyoumicks poor prospects for rehabilitation
constituted an extraordinary circumstance
(within the meaning of Witt) that justified a
total sentence greater than 2 years to serve.
For these reasons, the judgement of
the superior court is AFFIRMED.
Given our resolution of these
issues, we conclude that the parties
remaining arguments are moot.
_______________________________
1 See former AS 12.55.125(e)(1) (pre-March 2005 version).
2 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
3 E.g., Chrisman v. State, 789 P.2d 370, 371 (Alaska App.
1990); Witt v. State, 725 P.2d 723, 724 (Alaska App. 1986).
4 Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988).
5See Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App.
1989); Luepke v. State, 765 P.2d 988, 990-91 (Alaska
App. 1988). These cases refer to the sentencing
criteria as the Chaney criteria because the Alaska
Supreme Court first articulated the criteria that
should govern sentencing decisions in State v. Chaney,
477 P.2d 441, 443-44 (Alaska 1970).
6DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).
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