ARTHUR EGOAK 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

Arthur Egoak was sentenced to a maximum term of one year to serve for importing alcohol into a dry village.   He appeals his sentence, arguing that his due process rights were violated because he had no notice that he would be sentenced to the maximum term as a worst offender.   He also argues that the sentencing record does not support a worst offender finding, and that the district court's analysis of the Chaney sentencing criteria was inadequate.   For the reasons explained below, we affirm Egoak's sentence.

Facts and proceedings

Egoak pleaded no contest to importation of alcohol for bringing four bottles of alcoholic beverages into the dry village of Akiak.¹  Based on this plea, District Court Magistrate Patty Burley found that Egoak had violated probation in two other cases.

At Egoak's sentencing hearing, the State recommended a flat-time sentence of sixty days for these offenses.   The prosecutor noted that Egoak had thirty-six prior misdemeanor convictions, including three prior convictions for importation of alcohol in 2000, 2001, and 2004, and six prior driving under the influence convictions, two of them within the past fifteen years.   The prosecutor also noted that Egoak had a history of assaultive behavior.   Egoak's attorney agreed that a sixty-day sentence “does seem warranted in light of the criminal history.”

Magistrate Burley rejected the parties' recommendation of a sixty-day sentence and imposed a flat-time sentence of 365 days.   After imposing this sentence, the magistrate invited Egoak's attorney to make additional argument, but he declined.

Egoak's claim that his due process rights were violated

Egoak argues that the magistrate violated his right to due process by imposing the maximum sentence without providing him with notice and an opportunity to be heard.   He argues that he had no notice that the State or the court would rely on his prior convictions at sentencing and that he was given no opportunity to explain or rebut his prior convictions.   He also argues that he had no opportunity to explain why his offense did not warrant a maximum sentence or to controvert the magistrate's finding that he had been given prior opportunities for rehabilitation that had failed.

Egoak's claim that he had no notice that he faced a possible maximum sentence is without merit.   At Egoak's change of plea hearing, the magistrate expressly advised Egoak that she could “go all the way up to the maximum” of one year to serve in sentencing him.²  Egoak said he understood.   Moreover, it is well-settled in case law that a lengthy history of misdemeanor convictions will justify a worst offender finding and the imposition of a maximum term.³  Egoak has pointed to no authority requiring the State or the court to notify a defendant prior to sentencing that his criminal history might subject him to classification as a worst offender.

We also find no merit to Egoak's claim that he had no opportunity to rebut the magistrate's findings at sentencing.   Magistrate Burley allowed both parties to present their sentencing recommendations and, after she announced Egoak's sentence, she gave the parties another opportunity to comment.   At that point, Egoak's attorney could have contested the court's findings regarding his prior convictions and prior opportunities for rehabilitation, but he did not do so.

Egoak relies on an Eleventh Circuit case, United States v. Jules,⁴ to argue that his sentencing procedure violated due process.   But Jules concerned a probation report that was sent to the judge the day before the defendant's sentence modification hearing.⁵  The report was not docketed or provided to either party, and the court relied on information contained in the report in deciding not to reduce Jules's sentence.⁶  The Eleventh Circuit reversed, concluding that the parties should have received notice and an opportunity to contest the new information.⁷

In sentencing Egoak, Magistrate Burley did not rely on any new information that was not available to the parties.   Egoak was certainly aware of his own criminal history, and he was on notice that his plea subjected him to a maximum sentence.   At the change of plea hearing, the State pointed out that Egoak had thirty-six prior convictions and that he faced a mandatory minimum sentence of 120 days because he had three prior convictions for the same offense of alcohol importation.   We reject Egoak's argument that his sentencing procedure violated due process.

Egoak's claim that the record does not support a worst offender finding

In general, maximum sentences should not be imposed without some foundation for characterizing a defendant as the worst type of offender.⁸  Magistrate Burley did not make an express finding that Egoak was a worst offender before she imposed the maximum term.   But the absence of an express finding does not require reversal of Egoak's sentence if his status as a worst offender is clear from the record.⁹

Egoak argues that his offense—importing four bottles of liquor into a dry village—was not serious enough to justify a worst offender finding.   But a defendant may be labeled a worst offender based on his criminal record, even if the offense for which he is sentenced is relatively mild.¹⁰  At the sentencing hearing, Egoak did not contest the State's claim that he had thirty-six prior convictions, including three for importing alcohol and six for driving under the influence.   At the time of his offense, Egoak was still on probation for driving under the influence and reckless boating.   Magistrate Burley could reasonably find that Egoak was a worst offender based on this lengthy criminal history and his failures at probation, even though his current offense was not particularly serious.

Egoak also argues that his offense of importing a small amount of alcohol into a dry village does not justify isolating him in order to protect the public.   But we have previously recognized the serious danger to society posed by alcohol abuse.¹¹  Egoak has a long history of alcohol-related crimes, and he was still on probation for at least one such crime when he committed the offense in this case.   This record justifies the magistrate's conclusion that probation had failed to deter Egoak and that a substantial term of incarceration was necessary to protect the public.¹²

Egoak next argues that the record does not support the magistrate's finding that he had prior opportunities for rehabilitation that failed.   The magistrate found that, in Egoak's case, “rehabilitation long ago stopped being the goal” and that “[m]y guess is that you've been given a lot of opportunities to get some kind of treatment and you've chosen not to.”

In previous cases, we have disapproved maximum sentences where the sentencing record “contained no meaningful showing that the offender's ability to be deterred had been tested or that past rehabilitative efforts had failed.” ¹³  This view reflects “the law's traditional recognition that the most reliable indicator of future danger is an offender's willingness to reoffend despite previous efforts at deterrence or rehabilitation.” ¹⁴

The sentencing record does not show that Egoak has previously been ordered to participate in substance abuse or other rehabilitative treatment.   But Egoak's ability to be deterred has been amply tested by his repeated convictions.   We conclude that Egoak's extensive criminal history, his numerous alcohol-related crimes, his three prior convictions for the same offense at issue in this case, and his recent failures at probation, warranted his sentencing as a worst offender.

Egoak's claim that the magistrate failed to consider the Chaney factors

Egoak argues that Magistrate Burley's analysis of the Chaney sentencing factors was inadequate.¹⁵  He asserts that she made no mention of the Chaney sentencing criteria apart from her “perfunctory reference to rehabilitation.”

The supreme court has held that a trial court “need not recite the goals of sentencing as long as it is clear that it has considered those goals.” ¹⁶  In this case, Magistrate Burley discussed the pertinent sentencing criteria, and her analysis of the Chaney factors is evident from her remarks.   She concluded that, in light of Egoak's criminal history and his failure to address his ongoing problems with alcohol, probation would not deter him from further criminal conduct and that rehabilitation was no longer an appropriate sentencing goal.   She therefore emphasized the Chaney factors of isolation and community condemnation.

Although Magistrate Burley did not discuss the seriousness of Egoak's current offense in relation to his other offenses, it is implicit in her remarks that she did not consider his current offense to be particularly serious.   Rather, she imposed the maximum term because Egoak's criminal history convinced her that a lesser sentence would not serve the Chaney goals of deterring Egoak, protecting the public, and expressing the community's condemnation of his conduct.   We conclude that this analysis of the Chaney factors was adequate and that Magistrate Burley was not clearly mistaken in imposing a one-year sentence.¹⁷

Conclusion

We AFFIRM Egoak's sentence.

FOOTNOTES

FN1. AS 04.11.499(a)..  FN1. AS 04.11.499(a).

FN2. See AS 04.16.200(e)(1) (providing that importation of alcohol is a class A misdemeanor if the quantity of alcoholic beverages is less than 10 1/2 12 liters of distilled spirits);  AS 12.55.135(a) (providing that a defendant convicted of a class A misdemeanor may be sentenced to a definite term of imprisonment of not more than one year)..  FN2. See AS 04.16.200(e)(1) (providing that importation of alcohol is a class A misdemeanor if the quantity of alcoholic beverages is less than 10 1/2 12 liters of distilled spirits);  AS 12.55.135(a) (providing that a defendant convicted of a class A misdemeanor may be sentenced to a definite term of imprisonment of not more than one year).

FN3. See State v. Graybill, 695 P.2d 725, 731 (Alaska 1985);  Ting v. Anchorage, 929 P.2d 673, 674 (Alaska App.1997);  Downs v. State, 872 P.2d 1229, 1231 (Alaska App.1994);  Pointer v. Anchorage, 812 P.2d 232, 233–34 (Alaska App.1991)..  FN3. See State v. Graybill, 695 P.2d 725, 731 (Alaska 1985);  Ting v. Anchorage, 929 P.2d 673, 674 (Alaska App.1997);  Downs v. State, 872 P.2d 1229, 1231 (Alaska App.1994);  Pointer v. Anchorage, 812 P.2d 232, 233–34 (Alaska App.1991).

FN4. 595 F.3d 1239 (11th Cir.2010)..  FN4. 595 F.3d 1239 (11th Cir.2010).

FN5. Id. at 1241..  FN5. Id. at 1241.

FN6. Id..  FN6. Id.

FN7. Id. at 1245..  FN7. Id. at 1245.

FN8. State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);  Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971)..  FN8. State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);  Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971).

FN9. See Walls v. State, 598 P.2d 949, 951 (Alaska 1979) (citing Ferguson v. State, 590 P.2d 43, 45 (Alaska 1979), and Wilson v. State, 582 P.2d 154, 157 n.3 (Alaska 1978))..  FN9. See Walls v. State, 598 P.2d 949, 951 (Alaska 1979) (citing Ferguson v. State, 590 P.2d 43, 45 (Alaska 1979), and Wilson v. State, 582 P.2d 154, 157 n.3 (Alaska 1978)).

FN10. Saganna v. State, 594 P.2d 69, 70–71 (Alaska 1979);  Waters v. State, 483 P.2d 199, 201–02 (Alaska 1971)..  FN10. Saganna v. State, 594 P.2d 69, 70–71 (Alaska 1979);  Waters v. State, 483 P.2d 199, 201–02 (Alaska 1971).

FN11. See Harrison v. State, 687 P.2d 332, 339 (Alaska App.1984) (“The threat posed to society by widespread alcohol abuse is enormous.   We believe that enactment of Alaska's local option law bears a close and substantial relationship to the legitimate legislative goal of protecting the public health and welfare by curbing the level of alcohol abuse in our state.”)..  FN11. See Harrison v. State, 687 P.2d 332, 339 (Alaska App.1984) (“The threat posed to society by widespread alcohol abuse is enormous.   We believe that enactment of Alaska's local option law bears a close and substantial relationship to the legitimate legislative goal of protecting the public health and welfare by curbing the level of alcohol abuse in our state.”).

FN12. See Graybill, 695 P.2d at 731;  Pointer, 812 P.2d at 234..  FN12. See Graybill, 695 P.2d at 731;  Pointer, 812 P.2d at 234.

FN13. Keyser v. State, 856 P.2d 1170, 1177 (Alaska App.1993)..  FN13. Keyser v. State, 856 P.2d 1170, 1177 (Alaska App.1993).

FN14. Id..  FN14. Id.

FN15. See State v. Chaney, 477 P.2d 441, 443–44 (Alaska 1970)..  FN15. See State v. Chaney, 477 P.2d 441, 443–44 (Alaska 1970).

FN16. Evans v. State, 574 P.2d 24, 26 (Alaska 1978)..  FN16. Evans v. State, 574 P.2d 24, 26 (Alaska 1978).

FN17. See McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974)..  FN17. See McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974).

COATS, Chief Judge.