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Johnson v. State11/8/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4303 - November 8, 2000]
Appeal from the Superior Court, Third Judicial District, Anchorage, Milton M. Souter, Judge.
Shawn P. Johnson was convicted of third-degree assault, first-degree criminal trespass, and third-degree criminal mischief. The superior court imposed a composite 4-year term with 2 years suspended. Johnson claims that this sentence violates the Austin rule. Because it does not, we affirm Johnson's sentence.
On March 7, 1999, Johnson kicked in his former girlfriend's apartment door. Once inside, Johnson armed himself with a knife and threatened her. At one point, Johnson struck the victim with the butt end of the knife. Johnson also stabbed one of the cabinet doors when he came at her with the knife. The victim feared that Johnson was going to stab her. By the time the police arrived and entered the apartment, Johnson was holding three knives.
The grand jury indicted Johnson on two counts of first-degree burglary and one count of third-degree assault. Johnson reached a plea agreement with the State. In exchange for his plea to an information charging one count of third-degree assault, one count of first-degree criminal trespass, and one count of third-degree criminal mischief, the State agreed to dismiss all other charges. The parties also agreed to open sentencing.
The third-degree assault charge, a class C felony, was Johnson's first adult felony conviction although he had several criminal traffic offenses including two convictions for driving while intoxicated. Johnson appeared before Superior Court Judge Milton M. Souter for sentencing. Judge Souter imposed 3 years with 1½ years suspended on the assault. He imposed a consecutive 1-year term with 6 months suspended on the criminal trespass. Finally, Judge Souter imposed 3 months with 2 months suspended on the criminal mischief concurrent with the sentence for criminal trespass.
Under the Austin rule, in the absence of statutory aggravating factors or extraordinary circumstances, a first felony offender must receive a sentence more favorable than the presumptive term that would apply for a second felony offender convicted of the same crime. When we apply the Austin rule, our primary focus is on the unsuspended term of imprisonment.
The presumptive term for a second felony offender convicted of a class C felony is 2 years. Johnson received a sentence of 3 years with 1½ years suspended for the crime of third-degree assault. The unsuspended portion of Johnson's sentence (1½ years to serve) is more favorable than the 2-year presumptive term enacted for second felony offenders. Thus, Johnson's sentence for third-degree assault does not violate the Austin rule.
Johnson points out that his composite sentence (4 years with 2 years suspended) is less favorable than the presumptive term for a second felony offender convicted of third-degree assault. But Johnson received this composite sentence for three crimes - third-degree assault, first-degree trespass, and third-degree criminal mischief. The Austin rule governs sentences imposed for individual offenses. A composite term of imprisonment is limited, not by the Austin rule, but by the rule announced in Farmer v. State: when a defendant is convicted of multiple crimes, the sentencing court must find "good reason" before imposing a composite sentence that exceeds the presumptive term for the defendant's most serious offense.
If, for purposes of argument, we treat the Austin limit for Johnson's third-degree assault conviction as the equivalent of the "presumptive term" for Johnson's most serious offense, we nevertheless concl
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