ANWAR WHEELER v. STATE OF ALASKA (2011)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Anwar Wheeler was on felony probation for first-degree robbery ¹ in case number 3AN-95-9984 CR, and he was on felony probation for third-degree assault ² and third-degree weapons misconduct ³ in case number 3AN-01-8535 CR. Wheeler violated his probation, and the superior court imposed all of Wheeler's previously suspended terms of imprisonment.   Wheeler now appeals, contending his revised sentence is excessive.

When Wheeler was originally sentenced in case number 3AN-95-9984 CR (the first-degree robbery case), he received a sentence of 14 years' imprisonment with 5 years suspended (9 years to serve).   When Wheeler was originally sentenced in case number 3AN-01-8535 CR (third-degree assault and weapons misconduct), he received a composite sentence of 9 years' imprisonment with 3 years suspended (6 years to serve).   Thus, after the superior court imposed all of Wheeler's previously suspended jail time, his robbery sentence amounts to 14 years to serve, and his assault/weapons misconduct sentence amounts to 9 years to serve.

When a sentencing court revokes a defendant's probation, the court may not automatically impose all of the defendant's previously suspended jail time.   Instead, the court must carefully reevaluate all currently available information in light of the Chaney criteria.⁴  The court's revised sentence must be based on the totality of the circumstances, including the original offense, the offender's background, and the offender's intervening conduct.⁵

At Wheeler's first sentencing, for his robbery conviction, the superior court found that he was a “worst offender,” and the court found five aggravating factors.   These findings, in combination, would have justified a sentence up to the maximum term of imprisonment for first-degree robbery-20 years.⁶  Nevertheless, the court imposed a significantly more lenient sentence:  14 years with 5 years suspended, or 9 years to serve.

At Wheeler's second sentencing, for his assault and weapons misconduct convictions, the superior court again found that Wheeler was a “worst offender,” and the court found three aggravating factors.   Nevertheless, the court imposed a composite sentence of 9 years with 6 years suspended plus 3 years of the previous suspended sentence, or 6 years to serve.

Subsequently, at the probation revocation sentencing, the superior court did not reflexively impose all of Wheeler's remaining jail time;  rather, the court fully explained its decision.   The court pointed out that Wheeler had an extensive history of prior criminal convictions and that Wheeler had consistently absconded from probation supervision until he was re-captured-usually because he had committed a new criminal offense.   Based on Wheeler's conduct since his original sentencings, the superior court found that Wheeler was unamenable to probation supervision, and that the most important sentencing goal was now to isolate Wheeler from society.   These findings and conclusions are fully supported by the record.

It is true that, given the superior court's most recent imposition of suspended jail time, Wheeler's composite sentence for these three felonies now amounts to 23 years to serve-14 years for the robbery, and a total of 9 years for the later crimes of assault and weapons misconduct.   But given Wheeler's original offenses, his background, and his conduct since the time of his original sentencings, we conclude that this composite sentence is not clearly mistaken.⁷

The judgment of the superior court is AFFIRMED.

FOOTNOTES

FN1. AS 11.41.500(a)(1)..  FN1. AS 11.41.500(a)(1).

FN2. AS 11.41.220(a)(1)(A)..  FN2. AS 11.41.220(a)(1)(A).

FN3. AS 11.61.200(a)(1)..  FN3. AS 11.61.200(a)(1).

FN4. Luepke v. State, 765 P.2d 988, 990-91 (Alaska App.1988)..  FN4. Luepke v. State, 765 P.2d 988, 990-91 (Alaska App.1988).

FN5. Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App.1989)..  FN5. Betzner v. State, 768 P.2d 1150, 1155-56 (Alaska App.1989).

FN6. AS 12.55.125(c)..  FN6. AS 12.55.125(c).

FN7. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)..  FN7. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

COATS, Chief Judge.