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Maguire v. State (1/27/2017) ap-2532

Maguire v. State (1/27/2017) ap-2532

                                                      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  



KEVIN PATRICK MAGUIRE,  

                                                                      Court of Appeals No. A-12392  

                                     Appellant,                    Trial Court No. 3AN-12-11692 CR  



                            v.  

                                                                                 O P I N I O N  

STATE OF ALASKA,  



                                     Appellee.                        No. 2532 - January 27, 2017  



                  Appeal  from  the   Superior  Court,  Third  Judicial  District,  

                                             

                  Anchorage, Michael Spaan, Judge.  



                  Appearances:   Claire F. DeWitte, Assistant Public Advocate,  

                                        

                   and Richard Allen, Public Advocate, for the Appellant. Charles  

                                                                                             

                  D.  Agerter,  Assistant  Attorney  General,  Office  of  Special  

                                                                                            

                  Prosecution  (brief),  and  Michal  Stryszak,  Assistant  Attorney  

                                    

                   General, Office of Criminal Appeals, Anchorage (supplemental  

                                            

                  brief), and Craig W. Richards, Attorney General, Juneau, for the  

                                                                        

                  Appellee.  Renee  McFarland,  Assistant  Public  Defender,  and  

                   Quinlan   Steiner,   Public   Defender,   for   the   Alaska   Public  

                  Defender Agency as amicus curiae.  



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

                                                         

                                                *  

                   Superior Court Judge.   



                  Judge ALLARD.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                       Pursuant to a plea agreement, Kevin Patrick Maguire pleaded guilty to                                          



                                                                                                                 1  

misdemeanor criminal contempt for nonpayment of child support.                                                                      

                                                                                                                   The plea agreement  



                                                                                                                                                  

 specified that Maguire would receive a wholly suspended sentence with the amount of  



                                                                                                                                              

 suspended  time  and  the  length  of  probation  to  be  determined  by  the  court.                                                        The  



                                                                                                                                               

 sentencing court accepted the plea agreement and imposed a suspended sentence of 240  



                                                                                                                                     

days and 5 years' probation. Maguire appeals, arguing that the 5-year term of probation  



     

is excessive.  



                                                                                                                                      

                       For the reasons explained here, we find no merit to this claim. We therefore  



                                

affirm Maguire's sentence.  



                                                                                                            

            Why we conclude that we have jurisdiction to hear this appeal  



                                                                                                                                             

                       The  first  question  we  must  decide  in  this  appeal  is  whether  we  have  



                                                                                                                                                    

jurisdiction to hear it.  Under AS 12.55.120(a) and Alaska Appellate Rule 215(a)(1), a  



                                                                                                                                     

defendant has no right to appeal a misdemeanor sentence of imprisonment as excessive  



                                                                                                                                                

unless the sentence exceeds 120 days to serve. The defendant is entitled, however, to file  



                                                                        

a petition for discretionary review to the Alaska Supreme Court so long as the term of  



                                                     2  

                              

imprisonment is unsuspended. 



                                                                                                                                                 

                       In the current case, Maguire received a fully suspended sentence and he  



                                                                                                                                           

acknowledges  that  he  cannot  appeal  this  suspended  sentence  as  excessive  under  



                                                                                                                                   

AS 12.55.120(a) and Appellate Rule 215(a)(1).   But he argues that he is entitled to  



      1     AS 09.50.010(5) & AS 09.50.020(a).  



      2     See Alaska R. App. P. 215(a)(5).  



                                                                       - 2 -                                                                2532
  


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

appeal   his   term   of   probation   as   excessive   under   our   prior   decision   in   Allen   v.  

Anchorage .3  



                                                                                                                    

                     Almost  ten  years  ago,  in  Allen ,  this  Court  declared  (by  a  two-to-one  



                                                                                                                     

majority)   that   the   statutory   bar   against   excessive   sentence   appeals   involving  



                                                                                                                

misdemeanor sentences of less than 120 days to serve did not apply to "non-term-of- 



                                                                                                                             

imprisonment sentence appeals (e.g., appeals challenging probation conditions, fines,  



                                                          4  

                                     

forfeitures, and license revocations)." 



                                                                                                5  

                                                                                                                            

                     Judge Mannheimer dissented from this holding.                                  In his dissent, Judge  



                                                                                                                        

Mannheimer noted that this Court had been inconsistent in its approach to this question,  



                                                                                                    

and that the Court's only prior published decision on this issue, Haggren v. State, 829  



                                                                                                                            6  

                                                                                                                    

P.2d 842, 845 (Alaska App. 1992), was directly contrary to the holding in Allen . 



                                                                                                                        

                     In recent years, we have issued unpublished decisions that are arguably  



                                                                                                  7  

                                                                                                                             

inconsistentwith Allen 's resolution ofthis jurisdictional question.  Given our own recent  



                                                                                                                                

failure to adhere consistently to the rule in Allen , we invited the parties to this appeal, and  



                                                                                                                         

the Alaska Public Defender Agency as amicus curiae, to submit briefing on whether  



                                                                                                                                 

Allen should be overturned in favor of the view adopted by the dissent in that case - the  



                                                                                                                        

view that this Court has no jurisdiction to hear any aspect of a misdemeanor sentence  



     3     168 P.3d 890 (Alaska App. 2007).  



     4    Id. at 894.  



     5    Id. at 896-906 (Mannheimer, J., dissenting).  



     6    Id. at 897-900 (Mannheimer, J., dissenting).  



     7    See, e.g., Keeling v. State,  2016 WL   362742, at *1-2 (Alaska App. Jan.   27, 2016)  



(unpublished); Jorgens v. State , 2013 WL 6168561, at *7 (Alaska   App. Nov. 20, 2013)  

(unpublished).  



                                                               - 3 -                                                         2532
  


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

appeal unless the active imprisonment portion of the sentence exceeds the 120-day                                                    

threshold.8  



                                                                                                                                  9  

                                                                                                                                             

                       Appellate courts "do not lightly overrule [their] past decisions."                                            We will  



                                                                                                                                         

do so only if "clearly convinced the rule was originally erroneous or is no longer sound  



                                                                                                                                                 

because of changed conditions, and that more good than harm would result from a  



                                              10  

                            

departure from precedent." 



                                                                                                                                              

                       After  reviewing  the  supplemental  briefing  submitted  in  this  case,  we  



                                                                                                                                        

conclude that we should abide by the principle of stare decisis and continue to follow  



                                                                                                                                            

Allen .  We reach this conclusion, in large part, because we believe that more harm than  



                                                                                                          

good would come from departing from our prior precedent in Allen.  



                                                                                                                                  

                       For the last ten years, Allen has been the law in Alaska and the legislature  



                                                                                                                                    

has taken  no  action  to  suggest that it disagrees  with Allen  or  that it ever  intended  



                                                                                                                                                     

AS 12.55.120(a) to be interpreted to bar this Court from hearing these types of appeals.  



                                                                                                                                             

Moreover, with the exception of a few recent unpublished decisions, this Court has  



                                                                                                                                            

consistently applied Allen and its interpretation of AS 12.55.120(a) and Appellate Rule  



215(a)(1).  



                                                                                                                              

                       We believe that overruling Allen  at this juncture will create unnecessary  



                                                                                                                                   

confusion  among  litigants  and  lawyers  and  will  likely  result  in  further  litigation  



                                                                                                                                     

regarding whether a particular appeal is properly characterized as an excessive sentence  



                               

appeal or a merit appeal.  



      8    Allen , 168 P.3d at 898 (Mannheimer, J., dissenting).  



      9     State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986).  



      10   Id .  



                                                                     - 4 -                                                                2532
  


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

                     Moreover, as the            Allen  majority recognized, this Court is uniquely well-                        



                                                                       11  

 situated   to   handle   these   types   of   appeals.                                                                    

                                                                              As  a  court  of  exclusively  criminal  



                                                                                                                                      

jurisdiction,  the  Court  is  more  likely  to  be  familiar  with  the  sentences  imposed  in  



                                                                                                                                      

criminal cases across the State and to recognize when a particular fine, forfeiture, or  



                                                                                                                                     

probationary term falls outside the range of reasonable sentences.  We also note that the  



                                                                                                                                     

consequences  of  these  aspects  of  a  defendant's  sentence  can  be  quite  severe  -  



                                                                                                                               

particularly  with  regard  to  criminal  cases  involving  corporations  or  cases  where  



                                                                                                                                

forfeitures of large items such as airplanes are at stake. Acknowledging a right of appeal  



                                                                                                                                 

in these matters ensures that the litigants have the opportunity to fully litigate these issues  



                                                                                                                                    

and  that  they  will  receive  a  written  decision  in  response,  further  promoting  the  



                                                                                                                                    

transparency of the criminal justice system and overall confidence in the integrity of that  



 system.  



                                                                                                                                    

                     Given  that  neither  the  legislature  nor  the  Alaska  Supreme  Court  has  



                                                                                                                                    

disputed our interpretationsofAS12.55.120(a) or AppellateRule 215(a)(1) in Allen , and  



                                                                                                                                   

given the reliance of litigants on our prior precedent, we conclude that more harm than  



                                                                                                                        

good will come from overruling Allen . We therefore conclude that we have jurisdiction  



                                                                                                                                     

to hear Maguire's appeal of the length of his probationary term, and we now turn to the  



                       

merits of that claim.  



                                                                                                         

           Why we conclude that Maguire's probationary term is not excessive  



                                                                                                                             

                     Maguire argues that the 5 years of probation the sentencing court imposed  



                                                                                                                               

is excessive given his age (61), his lack of criminal history, and the sentencing court's  



                                                                                                                    

 skepticismthat it could structure a sentence that would advanceMaguire'srehabilitation.  



      11   Allen , 168 P.3d at 895.  



                                                                 -  5 -                                                          2532
  


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

                                                             At the sentencing hearing, the judge found that Maguire's failure to comply                                                                                                                                                                                                                               



with his child-support obligations had persisted for fifteen years.                                                                                                                                                                                                                                  The judge found that,                                                           



during this time, Maguire made a conscious decision not to pay child support "because                                                                                                                                                                                                                                                                           



 [he] didn't want to give [his ex-]wife the satisfaction." The judge rejected any assertion                                                                                                                                                                                                                                                                     



that Maguire, a medical doctor, was capable of paying only $35 a month in child support                                                                                                                                                                                                                                                                               



for his three children, as he had done in some of those years. Maguire has not challenged                                                                                                                                                                                                                                                               



these factual findings, and they are supported by the sentencing record.                                                                                                                                                                                                                           



                                                             Maguire argues instead that the 5 years of probation the court imposed "is                                                                                                                                                                                                                                                     



inconsistent with the court's conclusion that [his] prospect of rehabilitation would not                                                                                                                                                                                                                                                                                                 



be aided by [any] court[-]structured rehabilitation." We                                                                                                                                                                                                 disagree. Although                                                                        it is true that  



the judge was skeptical of the court's ability to                                                                                                                                                                 compel  Maguire to change his behavior,                                                                                                     



the judge expressed some optimism about Maguire's ability to reform himself - to "get                                                                                                                                                                                                                                                                                                 



a full-time job, make enough money to pay [child] support, make enough money where                                                                                                                                                                                                                                                                                           



 [you] could be proud of what [you] do professionally, and take care of [yourself].                                                                                                                                                                                                                                                                                                So I   



think you may do it.                                                                          I hope you do."                                        



                                                             The purpose of probation "is to provide                                                                                                                                        a programwhich offers an offender                                                                                      



                                                                                                                                                                                                                                                                                   12  

the opportunity to rehabilitate himself without confinement."                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                              It also serves the related  



                                                                                                                                                                                                                                                                                                                                                                             

purposes of affirming community values and protecting the public by deterring future  



                                                     13  

criminality.                                                                                                                                                                                                                                                                                                                                                                                 

                                                                    Here, the sentencing judge concluded that a sentence of 240 days of  



                                                                                                                                                                                                                                                                                                                                                                         

 suspended time and 5 years of probation was required to (1) motivate Maguire to change  



                                                                                                                                                                                                                                                                                                                                                                            

the long-standing attitudes that led to his refusal to pay child support, (2) deter others  



                12            Boyne v. State, 586 P.2d 1250, 1252 (Alaska 1978) (quoting People v. Ledford, 477   



P.2d 374, 375 (Colo. 1970) (en banc)); see also Roman v. State, 570 P.2d 1235, 1240 (Alaska   

 1977).  



                13            See, e.g., Leuch v. State , 633 P.2d 1006, 1013-14 (Alaska 1981); Edwards v. State, 34  

                                                                       

P.3d 962, 969 (Alaska App. 2001).  



                                                                                                                                                                                          -  6 -                                                                                                                                                                                 2532
  


----------------------- Page 7-----------------------

from similar conduct, and (3) affirm community values that "you've got to meet your                                                                                                                                                                                                                                             



obligations to your children, and [that] you have to work as hard as you can to do that."                                                                                                                                                                                                                                                            



                                                    We find no merit to Maguire's claim that 5 years of probation unduly                                                                                                                                                                                              



restricts his liberty.                                                            To   the contrary,                                                      we find                            that the                           probationary   term the court                                                                 

imposed is well supported by the sentencing record, and is not clearly mistaken.                                                                                                                                                                                                                                           14  



                           Conclusion  



                                                                                                                                                                                                                              

                                                    We AFFIRM the judgment of the superior court.  



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



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