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Ipalook v. State6/30/1999
s and a felony sexual assault. Ipalook's substantial record alone provides a basis in the record to support Judge Jeffery's finding that Ipalook was a worst offender. We conclude that Judge Jeffery's finding was not clearly erroneous.
Ipalook next contends that his sentence on the assault charge violates the Austin rule. To exceed the Austin limit, a sentencing Judge must find aggravating factors or exceptional circumstances. Here, Judge Jeffery found the (c)(8) aggravating factor applied to the assault. Although Judge Jeffery did not give Ipalook advance notice that he was considering that aggravating factor, Ipalook did not object. Because Ipalook did not object, we review the lack of notice for plain error.
Ipalook's record of assault convictions was apparent in the pre-sentence reports. The State had given notice that the (c)(8) aggravating factor should apply to the felony DWI charge and Ipalook had no objections to (c)(8) on that charge.
Besides the aggravating factor, Judge Jeffery found that Ipalook was a worst offender, justifying the imposition of a maximum sentence. We conclude that Judge Jeffery's findings authorized a sentence over the Austin limit. We also conclude that Judge Jeffery's consideration of the aggravating factor was not plain error.
Ipalook next argues that his composite 5-year term to serve is not justified under the rule from Farmer v. State. Under Farmer, when a court sentences a first felony offender on two or more offenses, the court should not impose a sentence more severe than the presumptive term of the most serious crime for a second felony offender without good cause. Both of Ipalook's convictions were class C felonies with a presumptive term for a second offender of 2 years' imprisonment. Here, Judge Jeffery imposed a composite 5-year term. Nevertheless, Judge Jeffery found that Ipalook was a worst offender on the assault charge, and that aggravating factor (c)(8) applied to both convictions. Ipalook's felonies also arose from completely separate incidents. Judge Jeffery concluded that the two felonies committed by Ipalook were distinct offenses and that those statutes protected separate societal interests. We conclude that Judge Jeffery's findings satisfy the Farmer good-cause requirement.
Next, Ipalook argues that his composite 7-year term with 2 years suspended must be reversed because it exceeds the maximum 5-year term for either offense. Ipalook claims that Judge Jeffery had to make Mutschler findings to impose a sentence of more than 5 years including suspended time. However, a composite sentence that exceeds the maximum term for the most serious offense only with a suspended term does not trigger the requirement Mutschler findings.
Reviewing the record as a whole, we conclude that Ipalook's sentence is not clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.
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