Opinion
Court of Appeals No. A-10608.
September 15, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-07-14505 CR.
Morgan White, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Gustaf W. Olson, Assistant District Attorney, Adrienne P. Bachman, District Attorney, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
On December 25, 2007, Ok Cha Yarbrough was celebrating her birthday at her home. Yarbrough testified that Michael Sung Soo Lee burst through the front door, carrying a bat that he used to attack Yarbrough and the other people present and to break up the property in the living room. Lee testified that he went to Yarbrough's home because his girlfriend lost money gambling there.
After trial, Lee was convicted of first-degree criminal trespass, third-degree criminal mischief (a class C felony), and two counts of fourth-degree assault. Lee also pleaded guilty to three counts of violating the conditions of his release.
AS 11.46.320(a)(2).
AS 11.46.482(a)(1).
AS 11.41.230(a)(1).
AS 11.56.757(b)(1).
At the sentencing hearing, Superior Court Judge Michael Wolverton found that the State had established three aggravating factors: that Lee's prior criminal history included aggravated or repeated instances of assaultive behavior, that Lee was on probation for another felony charge, and that Lee's prior criminal history included convictions for five or more crimes that are class A misdemeanors. The judge rejected Lee's asserted mitigating factors, including Lee's allegation that the conduct constituting the offense of criminal mischief was among the least serious conduct included in the definition of this offense.
AS 12.55.155(c)(8).
AS 12.55.155(c)(20).
AS 12.55.155(c)(31).
AS 12.55.155(d)(9).
Judge Wolverton sentenced Lee to a composite sentence of approximately six years' imprisonment with two years suspended for the four counts that were presented to the jury and a consecutive sentence of approximately twenty-seven months with twenty-one months suspended for the three counts of violating the conditions of his release. Judge Wolverton also revoked Lee's probation and imposed the previously suspended sentence for Lee's prior felony conviction. Lee now appeals, arguing that the judge should have approved the "least serious" mitigating factor and that the judge imposed an excessive sentence.
Mitigating Factor Claim
Lee argues that the judge was required to consider only the monetary amount of the property damage he caused when determining whether his conviction for criminal mischief was the least serious within the definition of this crime. But we have rejected this approach in the past. In determining whether Lee's offense was the least serious, the judge was entitled to consider the totality of the circumstances surrounding Lee's misconduct.
See Wassillie v. State, 911 P.2d 1071, 1073 (Alaska App. 1996); Williams v. State, 859 P.2d 720, 722 (Alaska App. 1993); Curl v. State, 843 P.2d 1244, 1245 (Alaska App. 1992); see also Gant v. State, 712 P.2d 906, 908-09 (Alaska App. 1986).
Even when considered in isolation, the amount of the property damage did not require the judge to approve this mitigating factor. In Gant v. State, we affirmed a trial judge's rejection of this mitigating factor, where the monetary impact of the defendant's crime was $1,200 compared with the $500 threshold for the felony offense of issuing a bad check. We stated that the amount of money involved was "by no means marginal."
Gant, 712 P.2d at 909.
Id.
Here, an estimate attached to the presentence report stated that the property damage Lee caused would cost $1,060 to repair. This was the amount that the judge relied on when he entered the restitution judgment. Damages of this magnitude do not compel the conclusion that this offense involved the least serious conduct compared to the $500 in damages required by the definition of this offense. Considering all of the circumstances, we agree with Judge Wolverton's conclusion that this was not the least serious conduct within that definition. Excessive Sentence Claim
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (applying de novo review to the application of statutory mitigating factors to a given state of facts).
Lee had a history of approximately twenty-seven criminal convictions, including at least ten involving some type of assault or violent misconduct, and he was on felony probation for driving under the influence at the time of this crime. Based on this prior record, Judge Wolverton considered whether to find that Lee was a worst offender. He indicated that the decision was a "close call" but decided not to make the finding, explaining that Lee had not previously received significant amounts of jail time. The judge stated that Lee's misconduct was "completely uncalled for" and decided to emphasize the goal of deterrence.
The State contends that we have no jurisdiction to review the sentence on Lee's felony criminal-mischief conviction because the three-year sentence was within the presumptive range for this offense. But when a defendant contends that his sentence is excessive, our practice is to review the composite sentence rather than the individual sentences for separate counts. We have jurisdiction to review the composite sentence (even though we might lack the authority to review the presumptive sentence in isolation).
AS 12.55.120(e).
See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
See Osborne v. State, 182 P.3d 1155, 1158 (Alaska App. 2008).
The maximum sentence for Lee's felony criminal-mischief conviction was five years' imprisonment, and the maximum sentence for each of his six misdemeanor convictions was one year. Lee's composite sentence included approximately four years and six months of unsuspended imprisonment to serve. In view of Lee's long criminal record and the circumstances of these offenses, we conclude that Judge Wolverton's sentencing decision was not clearly mistaken.
AS 12.55.125(e).
AS 12.55.135(a).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
We therefore AFFIRM the superior court's judgment and sentence.