TIMOTHY MYERS 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

Timothy Myers was convicted on his pleas of no contest to misdemeanor charges of assault in the fourth degree and criminal mischief in the fourth degree.   District Court Judge John W. Wolfe imposed a composite sentence of two years' imprisonment with one year suspended.   Myers now appeals, contending that this sentence is excessive.

Myers was romantically involved with Jayme Spires.   On October 31, 2010, Myers and Spires went out to a party in Talkeetna, where they lived.   They both drank while there, and after they left Myers became upset with Spires.   Myers stopped their vehicle, and attacked Spires, punching her in the face multiple times, biting her, strangling her, and kicking her in the body and face.   He told her he was going to kill her.   Spires eventually forced Myers to stop the assault by repeatedly kicking him in the midsection.

Spires left the area and locked the vehicle's doors using her remote key.   As she left, Myers started beating on the vehicle, breaking the window and mirrors.   He again said he was going to kill Spires.   Spires reported the incident to the Alaska State Troopers and called for medical assistance.

Spires suffered three cracked ribs, her two front teeth were knocked out, and she had two black eyes, abrasions and contusions from her shoulders to her knuckles on both arms, her face was swollen and bruised, both knees were bruised, she had blood caked inside of her nose, and multiple bruises and large contusions on her back and shoulders.

Medical technicians responded to Myers's location before the troopers arrived.   When the EMT's approached, Myers got out of the vehicle, screamed at them, picked up a knife from the ground, and climbed back in the Blazer.   When the troopers arrived, they had to pepper-spray Myers to convince him to get out of the vehicle.

At the sentencing hearing, Spires told the court the damage to her vehicle would cost over $1900 to repair.   Her medical bills from the emergency room were over $10,000, and she estimated that it would cost $10,000 to replace her front teeth.   Spires also reported that Myers had harassed her since the incident, sending letters to the town of Talkeetna to post in a public place, sending a letter to the Department of Environmental Conservation asserting there was a fuel spill on Spires's property, and making a claim to the Department of Labor that Spires had fired him without cause.

Myers had a misdemeanor drug conviction in 1989, a felony burglary conviction in 1991, and a misdemeanor conviction for attempted breaking and entering in 2006.   All of these prior offenses were from out of state.

The sentencing judge concluded Myers's misconduct was among the most serious examples of misdemeanor assault because it involved felony level misconduct.   This conclusion was based on the judge's review of the photographs and the statements describing the strangulation, Spires's cracked ribs and broken teeth, and Myers's statement that he was going to kill her.   The judge concluded that a substantial sentence was necessary to promote the sentencing goals of community condemnation, rehabilitation, deterrence of other offenders, individual deterrence, and isolation to protect the community.   The judge imposed a sentence of 365 days' imprisonment with 65 days suspended for the assault conviction and 365 days with 300 days suspended for the criminal mischief conviction.   The sentences were consecutive, giving Myers 365 days to serve.   The judge also ordered Myers to pay restitution, to complete a domestic violence intervention program, to complete any required alcohol treatment, and to have no contact with Spires.

On appeal, Myers argues that his composite sentence is excessive.   He argues that he has a moderate criminal history, that his acts were not charged as a felony, and that it was reasonable for him to break out the window and mirrors on the vehicle so that he could get out of the cold weather.

As noted above, Judge Wolfe found Myers's assault was among the worst within the definition of fourth-degree assault.   Myers does not challenge this finding on appeal, and the record supports Judge Wolfe's reasoning.   Myers punched Spires in the mouth so hard he knocked out two of her front teeth;  he kicked her in the midsection, cracking three ribs;  and he strangled her until she was able to kick him loose.   The judge could reasonably conclude that Myers's statements that he intended to kill Spires were consistent with the level of violence he employed.

Based on the worst-offender finding, the judge could have sentenced Myers to the maximum sentence for his assault conviction—a year to serve.¹  But the judge did not impose a maximum sentence for either offense.   The judge explicitly weighed the Chaney criteria and fashioned a sentence addressing appropriate sentencing factors, including a substantial period of rehabilitative treatment and probation.   Myers does not point to any factors that Judge Wolfe over-emphasized or neglected.   We conclude that Myers's sentence was not clearly mistaken.²

We AFFIRM the district court's judgment and sentence.

FOOTNOTES

FN1. AS 11.41.230(a)(1) & (b);  AS 12.55.135(a);  Collins v. State, 778 P.2d 1171, 1175 (Alaska App.1989) (a maximum sentence is justified by a worst-offender finding, which can be based on the defendant's background, the seriousness of the present offense, or both)..  FN1. AS 11.41.230(a)(1) & (b);  AS 12.55.135(a);  Collins v. State, 778 P.2d 1171, 1175 (Alaska App.1989) (a maximum sentence is justified by a worst-offender finding, which can be based on the defendant's background, the seriousness of the present offense, or both).

FN2. See McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken)..  FN2. See McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).

BOLGER, Judge.