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David v. State7/14/2004
ging conviction in 1997. For this prior bootlegging, David received a sentence of 4 months to serve (3 years with 32 months suspended). David eventually had to serve the 32 months of suspended jail time after his probation was revoked for criminal trespass, a domestic assault, possession of marijuana, and consumption of alcohol.
In addition to this prior felony bootlegging conviction, David had eight convictions for fourth-degree assault, five involving domestic violence (assaults on his wife). David also had five convictions for driving while intoxicated. And he had other convictions for disorderly conduct, criminal mischief, damage to property, theft, and illegal transportation and importation of alcoholic beverages.
The pre-sentence report also indicated that David had a substance abuse problem. David had twice undergone residential treatment for alcohol abuse.
At David's sentencing, the State proposed three aggravating factors under AS 12.55.155(c): (c)(8) - that David's criminal history included repeated instances of assaultive behavior; (c)(12) - that David was on release from an assault charge at the time he committed his present felony; and (c)(21) - that David had a criminal history of conduct similar to his current offense. David conceded the first two aggravators, and Judge Devaney found the third - (c)(21) - based on David's prior convictions for illegal importation and sale of alcoholic beverages.
Judge Devaney concluded, based on David's criminal history and David's problems with alcohol abuse, that David was a "worst offender" for sentencing purposes. Although Judge Devaney understood that this "worst offender" finding potentially authorized imposition of a maximum sentence (5 years' imprisonment), the judge concluded that a maximum sentence was not appropriate in David's case. Nevertheless, Judge Devaney concluded that, because of the aggravating factors and David's lengthy criminal history, the 2-year presumptive term was inadequate to satisfy the goals of sentencing. The judge sentenced David to 5 years' imprisonment with 1 1/2 years suspended - i.e., 3 1/2 years to serve - with a probation period of 7 years.
It is true, as David points out, that this sentence exceeded the prosecutor's sentencing recommendation of 3 years to serve. But a sentencing judge is not bound by the prosecutor's view of the case or the prosecutor's assessment of the appropriate sentence. The question on appeal is whether the judge's sentencing decision is clearly mistaken, given the facts of the case, and assessing those facts in light of the sentencing goals codified in AS 12.55.005.
Here, because David was a second felony offender, he faced a presumptive term of 2 years' imprisonment. This presumptive term represents the legislature's judgment as to the sentence that a typical second felony offender should receive for typical conduct within the definition of the offense. Judge Devaney concluded that even though David's conduct in the present case was not a particularly serious instance of felony bootlegging, David's extensive criminal history meant that he was a more serious offender than the typical second felony offender. Judge Devaney therefore concluded, based on the three aggravating factors, that David should receive a sentence of 3 1/2 years to serve.
We have reviewed the record, and we can not say that Judge Devaney's decision is clearly mistaken. We therefore affirm David's sentence.
Conclusion
The judgment of the superior court is AFFIRMED.
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