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Parson v. State (9/22/2017) ap-2569

Parson v. State (9/22/2017) ap-2569

                                                    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
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



EDWIN FRANCIS PARSON,  

                                                                   Court of Appeals No. A-12024  

                                   Appellant,                    Trial Court No. 4FA-13-3054 CR  



                           v.  

                                                                           O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Appellee.                      No. 2569 - September 22, 2017  



                                     

                  Appeal  from  the  District  Court,  Fourth  Judicial  District,  

                  Fairbanks, Benjamin Seekins, Judge.  



                  Appearances:   Olena   Kalytiak   Davis,   Anchorage,   for   the  

                  Appellant.    Patricia  L.  Haines,  Assistant  District  Attorney,  

                  Fairbanks, and Craig W. Richards, Attorney General, Juneau,  

                                                                             

                  for the Appellee.  



                  Before: Mannheimer, Chief Judge, Coats, Senior Judge,*  and  

                                                                                              

                  Suddock, Superior Court Judge.**  



                  Senior Judge COATS.  



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



Constitution and Administrative Rule 23(a).  



    **  

                                                                                                     

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

Constitution and Administrative Rule 24(d).  


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

                                                                                                                                                                                              1  

                                   Edwin Francis Parson was convicted of fourth-degree assault                                                                                                  for striking   



 and injuring his wife.                                  Parson requested a suspended imposition of sentence (SIS), but                                                                                              



 he was instead sentenced to 60 days with 60 days suspended. He now appeals the district                                                                                                                    



 court's denial of his request for an SIS.                                                



                                   The State asserts that Parson has no right to appeal the denial of his request                                                                                          



 for an SIS, and that this Court does not have jurisdiction to hear Parson's appeal, because                                                                                                              

 Parson's active (                         i.e., unsuspended) term of imprisonment does not exceed 120 days.                                                                                                               2  



                                                                                                                                                                                                                

                                   For  the  reasons  explained  in  this  decision,  we  conclude  that  we  have  



                                                                                                                                                                                                            

jurisdiction to hear this appeal.  We also conclude that the district court was not clearly  



                                                                                                                                                                                                       

 mistaken when it denied Parson's request for an SIS.   We therefore affirm Parson's  



 sentence.  



                                                                                                                                     

                  This Court has jurisdiction to hear Parson's appeal  



                                                                                                                                                                                                                                

                                   As just explained, Parson was sentenced to 60 days with all 60 suspended.  



                                                                                                                                                                                                   

 The State argues that under AS 12.55.120(a) and Alaska Appellate Rule 215(a)(1),  



                                                                                                                                                                                                                     

 Parson  has  no  right  to  appeal  his  misdemeanor  sentence,  and  this  Court  has  no  



                                                                                                                                                                                                                         

jurisdiction to resolve his appeal, because Parson was sentenced to less than 120 days to  



                                                                                                                                                                                

 serve.  In fact, Parson was not sentenced to serve any time, because all of his imposed  



                                   

jail time was suspended.  



                                                                                                                                                                                                                       

                                   Our jurisdiction to hear misdemeanor sentence appeals is established by  



                                                                                                                                                                                                                        

 AS 22.07.020(c).  This statute provides in pertinent part that we have jurisdiction to  



         1        AS 11.41.230(a)(1).
  



         2        See Alaska Appellate Rule 215(a)(1).
  



                                                                                                         - 2 -                                                                                                  2569
  


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

review "the final decision of the district court on a sentence imposed by it if the sentence                                                                              



exceeds 120 days of unsuspended incarceration for a misdemeanor offense."                                                                           



                             But recently, in                  Maguire v. State                    , we reaffirmed the position we earlier had                                       



taken in          Allen v. Anchorage                       : we have jurisdiction to review "non-term-of-imprisonment              



 sentence appeals (                    e.g., appeals challenging probation conditions, fines, forfeitures, and                                                                       



license revocations)" regardless of whether the defendant's active term                                                                                  of imprisonment   



                                       3  

exceeds 120 days.                                                                                                                                                                    

                                          We conclude that a challenge to a sentencing court's denial of an SIS  



                                                 

falls within this same category.  



                                                                                                                                                                                

                             One important reason why an SIS is a "non-term-of-imprisonment" aspect  



                                                                                                                                                                       

of a defendant's sentence is that an SIS gives the defendant the opportunity, regardless  



                                                                                                                                                                       

of the length of the sentence imposed, to have the conviction set aside if the defendant  



                                                                                                 4  

                                                                                                                                                                                    

                                                                                                       As we have observed, because of this  

 successfully completes their SIS probation. 



                                                                                                    5 

                                                                                                        We have also observed that in appeals  

opportunity, an SIS is "a unique disposition." 



                                                                                                                                                                                     

challenging probation conditions, fines, forfeitures, and license revocations, we are  



                                                                                                                                                                                        

"more likely [than the supreme court] to be familiar with the sentences imposed in  



                                                                                                                                                                                   

criminal cases across the State" and to recognize when a sentencing court has erred with  



                                                  6  

                                                                                                                                                                                          

regard to those issues.                               We are similarly more likely to be able to recognize when a  



                                                                                                                                                                                               

 sentencing court has erroneously denied or granted a suspended imposition of sentence.  



        3      Maguire  v.  State ,  390  P.3d  1175,  1177  (Alaska  App.  2017)  (quoting  Allen  v.  



Anchorage , 168 P.3d 890, 894 (Alaska App. 2007)).  



        4      AS 12.55.085(d).  



        5      State v. Huletz, 838 P.2d 1257, 1259 (Alaska App. 1992) ("A suspended imposition  



                                                                                                                                                                  

of sentence is a unique disposition:  by providing for the eventual set-aside of a conviction,  

                                                                                                                                                                              

a  suspended  imposition  of  sentence  offers  the  offender  an  incentive  for  reform  and  an  

opportunity to start anew with a clean slate.").  See also AS 12.55.085(d).  



        6      Maguire , 390 P.3d at 1178.  



                                                                                         -  3 -                                                                                  2569
  


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

                    We therefore conclude that we have jurisdiction over appeals challenging  

                                                                                                                    



a sentencing court's decision to deny a request for an SIS, regardless of the length of the  

                                                                                                                                 



imprisonment imposed.  

                       



  



          Background of Parson's assault on his wife  

                                                                        



                    Ann Parson, Parson's wife and the victim in this case, testified that at the  

                                                                                                                                 



time of the assault, she and Parson had been married for 26 years and had three children.  

                                                                                                                        



According to Ms. Parson, in October 2013, Parson left home for about a week without  

                                                                                                                          



telling his family his whereabouts.  When he returned home, he was "extremely angry"  

                                                                                                                           



and "just radiating tenseness." The couple's eighteen-year-old son (one of two children  

                                                                                                                         



still living at home) testified that his father's anger on the day of the assault was a "ten"  

                                                                                                                              



on a scale of one to ten.  

                                



                    Just before the assault, Parson was in the couple's bedroom.  When Ms.  

                                                                                                                                



Parson came into the bedroom to ask for the remote control to the family's television,  

                                                                                                                      



Parson angrily threw the remote at her.  The remote just missed Ms. Parson's head, so  

                                                              



close that it passed through her hair.  Parson then jumped off the bed where he had been  

                                                                                                                               



lying, grabbed a game console, and threw the console, "cords and all," down the hall  

                                                                                                                                



toward the living room.  The couple's son was in the living room at the time, and he  

                                                                                                                                  



testified that the console almost hit him.  

                                                        



                    Right after Parson threw the game console, he left the bedroom, went to the  

                                                                                                                                 



living room and attempted to destroy the family television, which he described as "the  

                                                                                                                               



source of evil" in the household. Ms. Parson followed Parson to the living room because  

                                                                                                                          



she was certain that Parson was "going to start smashing and throwing things."  When  

                                                                                                                             



Ms.  Parson  tried  to  prevent  Parson  from  destroying  the  television,  their  argument  

                                                                                                                       



escalated.  



                                                               - 4 -                                                         2569
  


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

                    Parson called her a bitch, he referred to her co-workers in derogatory terms,  

                                                                                                                            



and he then accused her of turning their children against him. (Ms. Parson worked in the  

                                                                                                                                



intake unit of the Office of Children's Services.)  

                                                            



                    During the struggle over the television, the couple's son stepped between  

                                                                                                                        



his parents. The son tried to calm Parson and to get him to move away from Ms. Parson.  

                                                                                                                                      



But when the son stepped away from his parents, Parson "slammed" Ms. Parson in the  

                                                                                                                                



chest, knocking her against the stone fireplace.  Ms. Parson hit the fireplace and fell to  

                                                                                                                                  



the floor.  The son testified that Parson's blow was "pretty hard," and that the son was  

                                                                                                      



concerned that Ms. Parson had been seriously hurt.  

                                                                        



                    As a result of this assault, Ms. Parson suffered a badly sprained ankle, an  

                                                                                                                                 



abrasion on her arm, and a cut on the little finger of her right hand.  

                                                                                               



                    When Ms. Parson and the couple's two children attempted to leave, they  

                                                                                                                    



discovered that Parson had disabled the family vehicles. Forced to leave the area on foot,  

                                                                                                                              



Ms.  Parson  and  the  children  went  to  a  neighbor's  house,  where  they  arranged  for  

                                                                                                                                



transportation to a place where they could spend the night.  

                                                                                  



                    Ms. Parson later testified that this was not the first time that Parson had  

                                                                                                                               



assaulted her - that it was normal for Parson to engage in physical altercations, and that  

                                                                                                                               



Parson had destroyed other property in the past.  This incident was, however, the first  

                                                                                                                               



time she reported an assault to law enforcement.  

                                                       



                    Ms. Parson told the sentencing judge that Parson had once been an easy- 

                                              



going person who got along well with her and their children.  But she explained that  

                                                                                                                               



Parson's personality had changed dramatically - that he had become an "unhappy,  

                                                                                                                     



mean, miserable person" who had quit work and had isolated himself.  According to his  

                                                                                                                                 



wife, Parson had become obsessed with the radio and TV news, and he did not want to  

                                                                                                                                  



go back to work "because of the evils in the world."  Ms. Parson also stated that Parson  

                                                                                                                           



blamed her "100 percent for everything that's happened."  

                                                                        



                                                              -  5 -                                                         2569
  


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

                    Ms. Parson also told the sentencing judge that Parson continued to be a  

                                                                                                                                   



threatening presence in her life despite her obtaining a restraining order. Parson had told  

                                                                                                                               



her that he was "finding it increasingly difficult to continue following the restraining  

                                                                                                                    



order." Parson declared that he "often thinks about violating it, and [that he] understands  

                                                                                                                   



why so many people break their orders."  

                                                   



                    At sentencing, Parson refused to take responsibility for the assault.  He  

                                                                                                                                



agreed that he and his wife had engaged in an argument on the evening in question, but  

                                                                                                                                



he told the judge that he believed his wife's injuries "occurred elsewhere."  It bothered  

                                                                                                                                      



Parson that "it didn't come to light where [his wife] received those injuries."  

                                                                                                        



                    The sentencing judge, District Court Judge Benjamin Seekins, rejected  

                                                                                                                        



Parson's request for an SIS.   Instead, the judge  imposed  a sentence of 60 days of  

                                                                                                                                 



imprisonment with all 60 days suspended, and 2 years of probation.  

                                                                                         



          Judge Seekins was not clearly mistaken to reject Parson's request for an  

                     

          SIS  



                    Parson claims that Judge Seekins provided only a "meager and insufficient  

                                                                                                                    



explanation" for his decision to deny Parson's request for an SIS, and that the judge was  

                                                                                                                               



clearly mistaken not to have given Parson an SIS.  Parson argues that his offense was  

                                                                                                                               



"decidedly less severe" than "typical" fourth-degree assaults, and he further argues that  

                                                                                                                               



he is a deserving offender who had never been in any legal trouble before this assault.  

                                                                                                                         



                    But Judge Seekins found, based on Parson's conduct as a whole, that the  

                                                                                                                                



facts  of  Parson's  case  were  "a  bit  more  severe  than  most  [assaults]."                                    The  judge  

                                                                                                                            



explained that Parson exhibited "the classic control cycle behaviors ... of a domestic  

                                                                                                                       



violence offense." He found that Parson's conduct in this assault was "a little bit above"  

                                                                                                                          



the more common conduct in domestic violence assaults. Consequently, Judge Seekins  

                                                                                                                         



ruled that an SIS was not appropriate under the facts of Parson's case.  

                                                                                                    



                                                              -  6 -                                                        2569
  


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

                       Whether to impose a suspended imposition of sentence in a given case is                                  



                                                                            7  

left to the discretion of the sentencing court.                                                                                 

                                                                               The pertinent portion of AS 12.55.085(a)  



                                                                                                                                 

declares that "if it appears that there are circumstances in mitigation of the punishment,  



                                                                                                                                                 

or that the ends of justice will be served, the court may, in its discretion, suspend the  



                         

imposition of sentence[.]"  



                                                                                                                                          

                       Although Parson had no prior convictions of any kind, he was a mature  



                                                                                                                                          

offender (47 years old when he committed this offense), and his offense was a violent  



                                                                                                                                                

crime - a physical assault that resulted in multiple injuries to his wife.  Moreover, Ms.  



                                                                                                                                                

Parson stated at sentencing that even though this was the first time she had reported one  



                                                                                                                                                   

of Parson's assaults to the police, this was not the first time Parson had assaulted her or  



                                               

had destroyed property in anger.  



                                                                                                                                                        

                       Parson physically assaulted his wife in the presence of their teenage son.  



                                                                                                                                                

And prior to the assault, Parson disabled both of the family vehicles - the vehicles that  



                                                                                                                                                  

his wife and children would try to use later that evening when they felt threatened by  



                                       

Parson and needed to leave.  



                                                                                                                                                    

                       Additionally,  Parson  continued  to  be  a  threatening  presence  despite  a  



                                                                                                                                                    

restraining order.  According to Ms. Parson, her husband told her that he was finding it  



                                                                                                                                             

"increasingly difficult" to adhere to the terms of the restraining order, that he often  



                                                                                                                                              

thought about violating it, and that he understood "why so many people break their  



orders."  



                                                                                                                               

                       Finally, both at trial and at sentencing, Parson refused to take responsibility  



                                                                                                                                                  

for the assault.  He asserted that his wife had received her injuries elsewhere, and he  



                                                                                                                     

essentially claimed that his wife was lying about the events of that evening.  



      7    Nattrass v. State, 554 P.2d 399, 401 (Alaska 1976) (citing AS 12.55.085(a)).  See also  



Parrott v. Anchorage, 69 P.3d 1, 6 (Alaska App. 2003).  



                                                                       -  7 -                                                                2569
  


----------------------- Page 8-----------------------

                              Based on these circumstances, we conclude that Judge Seekins was not                                                                                        



clearly   mistaken   when   he   denied  Parson's   request   for   a   suspended   imposition   of  



sentence.  



               Conclusion  



                              The judgment of the district court is AFFIRMED.  

                                                                                                                



                                                                                           -  8 -                                                                                    2569
  

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