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Lenz v. State (7/2/2015) ap-2460

Lenz v. State (7/2/2015) ap-2460

                                                              NOTICE
  

           The text of this opinion can be corrected before the opinion is published in the  

          Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

           errors to the attention of the Clerk of the Appellate Courts:   



                                         303 K Street, Anchorage, Alaska  99501
  

                                                      Fax:  (907) 264-0878
  

                                            E-mail:  corrections @ akcourts.us
  



                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ANTHONY JAMES LENZ,  

                                                                                Court of Appeals No. A-11545  

                                          Appellant,                          Trial Court No. 3AN-12-4450 CR  



                                v.  

                                                                                          O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                          Appellee.                                  No. 2460 - July 2, 2015  



                          peal   from   the   Superior   Court,   Third   Judicial   District,  

                     Ap                                                                  

                     Anchorage, Michael R. Spaan, Judge.  



                     Appearances:      Anthony   James   Lenz,   in   propria   persona,  

                     Wasilla,  for  the  Appellant.    Terisia  K.  Chleborad,  Assistant  

                     Attorney General, Office of Special Prosecutions and Appeals,  

                                                                              

                     Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                     for the Appellee.  



                     Before:  Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                     Senior Judge. *  

                                              



                     Judge MANNHEIMER.  



                     Anthony James Lenz and another man, Glenn Anderkay, burglarized and                          



vandalized an Anchorage laundromat in May 2012.  They smashed the laundromat's     



     *     Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11  of  the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

glass door, they sprayed the windows with black paint, and they were using crowbars to       



break  into  a  change  dispenser  when  the  police  arrived  and  apprehended  them.  The  



damage to the laundromat totaled over $6000.  



                        For this conduct, both Lenz and Anderkay were initially charged with two  

                                                                                                                                           



class C felonies - second-degree burglary and third-degree criminal mischief - and  

           

with misdemeanor theft. 1  

                                                 



                                                                                                                              

                        Before trial, the State offered plea bargains to both men, but the bargains  



were different.  



                                                      

                        With respect to  Anderkay, the State did not pursue the felony charges.  



Instead,  Anderkay  pleaded  guilty  to  a  reduced  charge  of  attempted  second-degree  



burglary (a class A misdemeanor) and to the misdemeanor theft.  Anderkay ultimately  

                                                                      



received a composite sentence of 90 days to serve plus 365 days suspended, coupled with  

                                                                                                                



3 years' probation.   



                        But the State insisted that Lenz plead guilty to one of the felony charges.  



(The  State  offered  to  dismiss  one  of  the  two  felony  charges,  and  to  dismiss  the  



misdemeanor theft charge, if Lenz would plead guilty to the other felony.)   



                        Because  Lenz  was  a  third  felony  offender  for  presumptive  sentencing  



purposes, he faced a presumptive sentencing range of 3 to 5 years' imprisonment if he  

                                                                                                 

pleaded guilty to either felony. 2 

                                                          However, the State offered to stipulate that Lenz would  



receive a sentence at the bottom of this presumptive range (i.e., 3 years to serve).   



                                                                                

                        Lenz declined the State's offer, so the State took his case to trial.  Lenz was  



                                                                                                                       

ultimately convicted of the two felony charges of second-degree burglary and third- 



      1     AS 11.46.310(a), AS 11.46.482(a), and AS 11.46.150(a), respectively.  



      2     AS 12.55.125(e)(3).   



                                                                         - 2 -                                                                   2460
  


----------------------- Page 3-----------------------

degree  criminal  mischief.    (The  misdemeanor  assault  charge  was  dismissed.)    After  



rejecting probation, Lenz received a composite sentence of 4 years to serve.   



                   In this appeal, Lenz argues that the State violated his constitutional right to  



equal protection of the law when the State declined to offer him the same plea bargain  

                                                                                                            



that it offered to his co-defendant Anderkay.  



                   For the reasons explained in this opinion, we find no violation of the equal  

                                                                                           



protection clause, and we therefore affirm Lenz's convictions.  



          The litigation of this issue in the superior court, and the superior court's  

          ruling  



                   As we have explained, Anderkay's case was resolved with a guilty plea to  

                                                                                                                    



two misdemeanors, but the State's offer to Lenz required that he plead guilty to one  



felony.  



                   Lenz (who was representing himself) filed a motion asking the superior  



court to set aside his indictment.  Lenz argued that the State had violated his right to  

                                                                                  



equal protection by failing to offer him the same resolution of the  case  that his co- 

                                                                                               



defendant Anderkay received.   



                   In its opposition to this motion, the State acknowledged that Lenz  and  

                                                                                                               



Anderkay played equal roles in the burglary and vandalism of the laundromat, but the  

                                                                                           



State argued that it was fair for Lenz to be offered a less favorable plea bargain because  

                                                         



Lenz's criminal record was substantially worse than Anderkay's.   



                   Lenz  was  a  40-year-old  repeat  felony  offender  whose  criminal  history  

                                   



spanned his entire adulthood.  He had three prior felony convictions:  second-degree  



burglary, attempted second-degree sexual abuse of a minor, and third-degree assault.  In  

                                                                                                                          



addition to these felonies, Lenz had four prior convictions for misdemeanor assault, and  



he also had convictions for misdemeanor theft, trespass, and driving under the influence.  



                                                           - 3 -                                                     2460
  


----------------------- Page 4-----------------------

                     One of Lenz's prior felonies - the second-degree burglary - was based  

                                                                                                    



on conduct that was similar to the laundromat break-in in the present case:  Lenz broke  

                                                                                                                     



into  the  storage  area  of  a  local  Fred  Meyer  store  and  stole  property  from  it.    Lenz  



committed this burglary and theft just one year before he committed the offenses in the  

                                                                          



present case, and he received a sentence of 2 years to serve for those earlier crimes.  The  

                                



State explained that it was following a policy of "progressive sentencing" for defendants  

                                                                      



who committed subsequent crimes - which is why the State's proposed plea bargain to  

                                                                         



Lenz would have required Lenz to serve 3 years in prison.   



                     The State explained that it offered a more lenient plea bargain to Anderkay  

                                                              



because  he  apparently  had  only  one  prior  felony  conviction  from  Iowa,  and  this  

                                                                       



conviction was from 1990 (i.e., it was more than 20 years old).  Anderkay also had two  

                                                     



misdemeanor convictions, but they too were more remote than Lenz's burglary and theft  

                                                                              



from the Fred Meyer store.  



                     In response to the State's pleading, Lenz asserted that the State was wrong  

                                                                                    



about Anderkay's prior criminal record.  According to documents that Lenz supplied to  

                                                                                                      



the superior court, Anderkay had actually been convicted of four felonies in Iowa in  

                                                      



1990, not just one.  Thus, Lenz argued, Anderkay was a "third felony offender" for  



presumptive sentencing purposes, just like himself, so the State should have offered the  

                                                                                          



two men equivalent plea bargains.   



                     Based on the parties' presentations, the superior court ruled that the State  

                                                                                   



had not violated the equal protection clause when it offered different plea bargains to  



Lenz and Anderkay.  Although the superior court did not take evidence on the question  

                                                                             



of precisely how many felony convictions had been entered against Anderkay in Iowa  

                                                                   



in 1990, the court declared that it would assume that Lenz was correct in his portrayal  



of Anderkay's criminal history. Nevertheless, the court concluded that even if Anderkay  

                                                                                                            



                                                               - 4 -                                                          2460
  


----------------------- Page 5-----------------------

had several felony convictions from 1990, the State still had valid reasons for offering     



Lenz a less favorable plea bargain than the one it offered to Anderkay.   



           Why we agree with the superior court's ruling  



                    In the present case, Lenz and his co-defendant Anderkay engaged in the  



same criminal behavior, but the State offered them different plea bargains.  The State  

                                                                                                                      



allowed  Anderkay  to  plead  guilty  to  two  misdemeanors,  and  Anderkay  ultimately  



received a sentence of 455 days' imprisonment with 365 days suspended (90 days to  

                                                                                                  



serve).  The State's offer to Lenz was less favorable:  the State insisted that Lenz plead  

                                                                                   



guilty to one felony charge, with the understanding that Lenz would receive a sentence  



of 3 years to serve.  



                    In  assessing  whether  the  State's  differing  treatment  of  these  two  co- 

                                                                                                                        



defendants was improper, we begin with the premise that the State has broad discretion  

                                                                                                       



to decide what charges (if any) to bring against a criminal defendant, and to decide the  

                                                                                                           



terms on which it is willing to resolve those charges short of trial.  As this Court noted  

                             



in  State  v.  District  Court,  53  P.3d  629,  631  (Alaska  App.  2002),  "Both  the  Alaska  

              



Supreme Court and this Court have declared that charging decisions are committed to the  

                                                                                                            



discretion  of  the  executive  branch;  so  long  as  these  decisions  are  exercised  within  



constitutional bounds, they are not subject to judicial control or review."  



                    When a defendant asserts that the charges against them were the result of  

                                                                                      



unlawful selective prosecution, the defendant bears the burden of proving that they were  

                                                                      



"singled  out  ...  based  upon  an  arbitrary,  invidious,  or  impermissible  consideration".  

Closson v. State, 784 P.2d 661, 669-70 (Alaska App. 1989). 3  



     3    Reversed on other grounds by Closson v. State, 812 P.2d 966 (Alaska 1991).  



                                                              - 5 -                                                          2460
  


----------------------- Page 6-----------------------

                    Here, even if we accept Lenz's assertion that Anderkay was convicted of  

                                                                                        



several felonies (not just one) in Iowa two decades ago, this still leaves the question of  

                                                                                                 



whether the prosecutor who formulated the plea bargain offers to Lenz and Anderkay  



was aware that Anderkay had more than one prior felony.  Based on the existing record,  

                                                      



it appears that the prosecutor was only aware of one prior felony - although this issue  

                                                                                                      



was never resolved in the superior court.  



                    But even if we assume that the prosecutor who offered the plea bargains to  

                                                                                  



Lenz and Anderkay was aware that Anderkay had more than one prior felony from 1990,  

                                                                                               



the record shows that there were articulable reasons for offering different plea bargains  



to Lenz and Anderkay.   



                    Compared to Anderkay's criminal history, Lenz's criminal history was  



more continuous, the number of his prior offenses was greater, and Lenz had committed  

                                                                                             



significant offenses more recently.  In particular, Lenz committed another burglary and  

                                                                                  



theft (the Fred Meyer incident) only one year before the break-in and vandalism in the  

                                                                                



the present case.  For this prior burglary and theft, Lenz received a 2-year sentence -  



which did not deter him from committing the crimes in the present case.   



                    These  factors  gave  the  State  articulable  grounds  for  treating  Lenz  and  

                                                                                                      



Anderkay  differently,  and  there  is  nothing  in  the  record  to  indicate  that  the  State's  

                                                                             



disparate offer to Lenz was the product of invidious discrimination (i.e., discrimination  



against a protected class).  



                    For these reasons, we agree with the superior court that the State did not  

                                                                       



violate Lenz's rights under the equal protection clause.  The judgement of the superior  

                                                                                   



court is AFFIRMED.  



                                                            - 6 -                                                        2460
  

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