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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
TODD E. RICHARDS,
Court of Appeals No. A-10570
Appellant, Trial Court No. 1JU-09-360 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2297 - March 4, 2011
Appeal from the Superior Court, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Jane B. Martinez, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Todd E. Richards appeals his convictions for third-degree assault (placing
another person in fear of imminent serious injury by means of a dangerous instrument)
and fourth-degree criminal mischief (unlawfully damaging the property of another in an
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amount of at least $50). 1 Richards asserts that the evidence presented at his trial is
insufficient to support the jury's verdicts. Richards also asserts that the 18-month
composite sentence he received for these two crimes is excessive.
With regard to Richards's merit appeal (that is, his attack on his
convictions), we conclude that the evidence is sufficient to support the jury's verdicts,
and we therefore affirm Richards's convictions for third-degree assault and fourth-degree
criminal mischief. With regard to the sentence appeal, however, we conclude that we do
not have jurisdiction to review Richards's sentence, and we therefore refer that issue to
the supreme court.
The sufficiency of the evidence to support Richards's convictions for third-
degree assault and fourth-degree criminal mischief
When a defendant claims that the evidence is insufficient to support a
criminal conviction, we must view the evidence (and all reasonable inferences to be
drawn from that evidence) in the light most favorable to upholding the verdict. 2
Accordingly, we now present the facts of Richards's case in that light:
On October 12, 2008, Richards and his wife Lorinda got into a fight after
an evening of heavy drinking. Lorinda testified that Richards attacked her, wrestled her
to the floor of their RV, and punched her in the eye. At some point during this
altercation, Lorinda offered to leave, and she started gathering her possessions. When
she asked Richards's son Travis to help her, Richards became enraged. Richards shoved
her out the door and proceeded to throw her belongings outside, onto the ground.
1 AS 11.41.220(a)(1)(A) and AS 11.46.484(a)(1), respectively.
2 See, e.g., Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009).
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Lorinda began loading her belongings into her car. As she was putting the
last of her things into the car, Richards stormed out of the RV and said, "I'll show you,
you fucking bitch." Lorinda threw the remainder of her possessions into the car, got into
the driver's seat, and turned on the headlights. In the light of the headlights, she saw
Richards coming toward her, carrying a splitting maul. 3
Richards threw the splitting maul at his wife's car. The maul smashed
completely through the windshield, landing in the passenger's seat next to Lorinda. In
a panic, and believing that her husband was trying to kill her, Lorinda floored the
accelerator - even though she was barely able to see through the damaged windshield.
The vehicle struck Richards, apparently with a glancing blow, and then Lorinda drove
away from the property.
Lorinda drove to the local Tesoro gas station and asked the store clerk to
call the police for her. The Tesoro store clerk testified that Lorinda was crying and "very
distraught". He observed that her windshield had a large vertical crack in it, and that
there was a maul on the passenger's seat. When the store clerk asked Lorinda for more
information before he called the police, she told him that her husband had thrown the
maul through the windshield.
The recording of the 911 call from the gas station was played into evidence
at Richards's trial. During this call, a hysterical Lorinda can be heard saying that
Richards threw an axe through her windshield, that he tried to kill her, and that she had
glass in her eye and in her boots. Lorinda was also concerned that Richards might be
injured, because she had hit him with her car.
3 A splitting maul is a hand tool used for splitting wood. One side of its head is shaped
like an axe (for penetrating the wood), while the other side of its head is flat like a
sledgehammer.
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While this 911 call was in progress, one of the 911 operators called
Richards's cell phone number to determine if he was in need of medical assistance.
Richards repeatedly told the 911 operator that he was fine and that he did not need
medical attention. Specifically, Richards stated, "We're fine; me and Travis are fine.
Lorinda is gone, so it's all good." The 911 operator responded, "We're concerned about
you being injured or something," to which Richards replied, "No, there's no - nothing
like that. ... [I'm] just cleaning up the place and getting ready for bed."
Sergeant Warren Bates, one of the police officers who responded to the 911
call, described Lorinda as "very distraught" he testified that Lorinda told him that her
husband had tried to kill her by throwing an axe through the windshield. Immediately
after speaking to Lorinda, Sergeant Bates went to the Richards residence to investigate.
Bates repeatedly knocked on the door of the RV, but no one answered.
Over the next month, Bates made several attempts to contact either
Richards or his son Travis. Bates finally succeeded in interviewing Richards about a
month after the incident. Richards told Bates that he was so drunk on the night in
question that he had no memory of what happened.
This evidence, if believed, is sufficient to support the jury's verdicts on the
assault and criminal mischief charges.
It is true that Richards and his son Travis took the stand at Richards's trial
and offered a substantially different, exculpatory account of the events of that night.
However, as explained above, when a defendant claims that the evidence is insufficient
to support a criminal conviction, an appellate court must decide that claim by viewing
the evidence in the light most favorable to the jury's verdict, even though contrary
evidence may have been presented at trial. Viewing the trial evidence in that manner,
it was sufficient to support Richards's convictions.
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Richards's sentence appeal
Richards argues that his sentence for these two crimes is excessive.
As a first felony offender, Richards faced a presumptive sentencing range
of 0 to 2 years' imprisonment for his third-degree assault conviction. 4 Superior Court
Judge Patricia Collins sentenced Richards to a term of 24 months with 12 months
suspended (i.e., 12 months to serve). Richards faced a sentence of up to 1 year's
imprisonment for his fourth-degree criminal mischief conviction. 5 Judge Collins
sentenced Richards to a term of 12 months with 6 months suspended (i.e., 6 months to
serve). Judge Collins made the time-to-serve components of these two sentences
concurrent, and the suspended time consecutive. Thus, Richards's composite sentence
is 12 months to serve, with an additional 18 months suspended.
This Court has the authority to review a misdemeanor sentence that exceeds
120 days to serve. See AS 12.55.120(a) and AS 22.07.020(b). Thus, if Richards had
been convicted of fourth-degree criminal mischief alone, and had been sentenced to the
same 6 months to serve, we would have the authority to review his sentence.
But Richards's sentence for the felony offense of third-degree assault is
only 12 months to serve. Under AS 12.55.120(a), a defendant has no right to appeal a
felony sentence unless that sentence exceeds 2 years to serve - and, under
AS 22.07.020(b), this Court has no jurisdiction to review a felony sentence unless that
sentence exceeds 2 years to serve. Moreover, Richards's 12-month sentence is within
the applicable presumptive sentencing range for a first felony offender convicted of
4 Third-degree assault is a class C felony; see AS 11.41.220(e). The presumptive
sentencing ranges for class C felonies are specified in AS 12.55.125(e).
5 Fourth-degree criminal mischief is a class A misdemeanor; see AS 11.46.484(b). The
maximum sentence for a class A misdemeanor is 1 year's imprisonment; AS 12.55.135(a).
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third-degree assault. For this additional reason, Richards has no right to appeal his
felony sentence, and this Court has no jurisdiction to review it. See AS 12.55.120(e) and
AS 22.07.020(b).
It is true that the State has not opposed Richards's sentence appeal on these
grounds (i.e., Richards's lack of entitlement to pursue an appeal, and this Court's lack
of jurisdiction to entertain the appeal). But when an appellate court perceives a potential
flaw in its subject-matter jurisdiction, the court is required to address and resolve this
jurisdictional issue before moving forward. See Robertson v. Riplett, 194 P.3d 382, 386
(Alaska 2008): "Subject matter jurisdiction ... may be raised at any stage of the litigation
and[,] if noticed [by the court,] must be raised by the court if not raised by the parties."
(Quoting Stone v. Stone, 647 P.2d 582, 584 n. 1 (Alaska 1982).) See also O'Link v.
O'Link, 632 P.2d 225, 226 n. 2 (Alaska 1981); Alaska Civil Rule 12(h)(3).
(The corresponding federal law is the same: if a court determines at any
time that it lacks subject-matter jurisdiction, the court must dismiss the action, even if the
parties have not raised this issue. See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th
Cir. 1979): "[A] federal court, including a court of appeals, must raise the issue [of
subject-matter jurisdiction] on its own motion where the parties fail to bring it to the
court's attention.")
The problem in the present case is that Richards asks us to review his
composite sentence for excessiveness, but only one of his two sentences falls within our
jurisdiction. As explained above, we have jurisdiction to review Richards's
misdemeanor sentence, but not his felony sentence. Indeed, we would have no felony
sentence appeal jurisdiction in Richards's case even if we focused on the composite
sentence that Richards received for both offenses. As we explained above, Judge Collins
imposed Richards's active terms of imprisonment concurrently; thus, Richards's
composite sentence is the same 12 months to serve that he received for his felony
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conviction. This sentence does not exceed 2 years to serve, and it falls within the
applicable presumptive range for Richards's felony offense (0 to 2 years).
The remaining question is whether we should proceed to decide the
misdemeanor portion of Richards's sentence appeal (i.e., the portion over which we have
subject-matter jurisdiction). We conclude that we should not.
Both the Alaska Supreme Court and this Court have repeatedly held that
when a defendant is sentenced for two or more offenses, Alaska law does not require that
each of the defendant's separate sentences be individually justifiable under the Chaney
sentencing criteria, 6 as if that sentence had been imposed in isolation. Rather, the
question is whether the defendant's combined sentence is justified in light of the entirety
of the defendant's conduct and history. 7
Because of this rule, a defendant is not allowed to pursue a sentence appeal
that attacks only a single sentence, or only isolated sentences, from among the entirety
of the sentences imposed. An appellate court will not hear a defendant's sentence appeal
in a case involving multiple offenses unless the defendant has appealed each of the
sentences that contributes to the composite total - so that the court can meaningfully
evaluate the whole. 8
There is, moreover, a substantial possibility that our jurisdiction to review
Richards's misdemeanor sentence arises from mere happenstance. As this Court has
repeatedly observed, trial court judges who are sentencing offenders for multiple crimes
6 The sentencing goals were first enunciated in State v. Chaney, 477 P.2d 441, 443
(Alaska 1970), and are now codified in AS 12.55.005.
7 Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Custer v. State, 88 P.3d 545, 549
(Alaska App. 2004); Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988); Comegys v.
State, 747 P.2d 554, 558-59 (Alaska App. 1987).
8 Custer, 88 P.3d at 549; Preston v. State, 583 P.2d 787, 788 (Alaska 1978).
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generally do not select particular individual sentences for the defendant's individual
crimes. Rather, judges select a composite total, and then they impose individual
sentences that add up to that total, often in a fortuitous way. 9
In Richards's case, Judge Collins imposed a composite 12 months to serve
- comprised of 12 months to serve for the felony and a concurrent 6 months to serve
for the misdemeanor. But Judge Collins might just as easily have given Richards only
a concurrent 3 months to serve for the misdemeanor - in which case, we would clearly
lack jurisdiction to review either of Richards's sentences.
Because Richards would not be entitled to appeal his misdemeanor sentence
in isolation, and because the propriety of Richards's sentence must be assessed in light
of the totality of his conduct and background, we conclude that we should not review
Richards's misdemeanor sentence when we have no jurisdiction to review his
accompanying felony sentence. Instead, we refer Richards's case to the Alaska Supreme
Court under Appellate Rule 215(k).
That is, Richards's attack on his composite sentence must be deemed a
petition for discretionary sentence review, and that petition must be decided by the
supreme court under Appellate Rules 215(a) and 403(h).
Conclusion
Richards's convictions for third-degree assault and fourth-degree criminal
mischief are AFFIRMED, but we lack jurisdiction to decide whether his sentence for
these crimes is excessive. That matter is referred to the supreme court.
9 See Billum v. State, 151 P.3d 507, 509-510 (Alaska App. 2006); Moore v. State, 123
P.3d 1081, 1093-94 (Alaska App. 2005); Allain v. State , 810 P.2d 1019, 1022 (Alaska App.
1991).
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