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Hall v. State (10/13/2006) ap-2066

Hall v. State (10/13/2006) ap-2066

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     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-9437
Appellant, ) Trial Court No. 3AN-05-525 Cr
v. )
) O P I N I O N
Appellee. ) No. 2066 October 13, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          Appearances:   Judy  M.  Scherger,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  John
          Skidmore,  Assistant District  Attorney,  and
          Leonard  M.  Linton  Jr., District  Attorney,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          In   early  2004,  Christopher  Michael  Hall  and  his
girlfriend tried to pass five checks, totaling almost  $8000,  on
bank  accounts that Hall knew were either closed or frozen.   For
this conduct, Hall was charged with five counts of issuing a  bad
check, AS 11.46.280(a).
          While  Hall  was awaiting trial on these charges,  Hall
wrote a new series of more than 100 bad checks  checks backed  by
insufficient  funds,  or  drawn  on  closed  accounts    totaling
approximately  $65,000.  These checks involved  eleven  different
accounts at eight financial institutions, and Hall defrauded more
than two dozen victims.
          For  this new conduct, Hall was charged with scheme  to
defraud,  AS 11.46.600(a)(2).  He was also charged with violating
the  conditions  of his release in the pending  bad  check  case,
AS 11.56.757(a).
          Scheme  to defraud is a class B felony.1  Halls act  of
violating the conditions of his release was a class A misdemeanor
because he was on release from felony charges.2
          To  resolve these charges, Hall reached a plea  bargain
with  the State.  Under the terms of this agreement, Hall pleaded
no  contest  to  the  two  new charges  (scheme  to  defraud  and
violation of conditions of release), and the State dismissed  the
pending  2004 bad check case.  There was no agreement  concerning
the  sentences  that Hall should receive for the  two  crimes  of
scheme to defraud and violating the conditions of his release.
          Hall  was a first felony offender.  Hall had one  prior
misdemeanor  conviction,  a 2001 conviction  for  issuing  a  bad
check,  but Hall received a suspended imposition of sentence  for
this  crime,  and his conviction was set aside at the  end  of  a
years probation.
          Hall  served  in the Army for a year and a  half  (from
August  2001  until March 2003), and he then received  a  general
discharge  for  unsatisfactory performance  in part,  because  he
wrote bad checks during his military service.
          (While  Hall was awaiting trial on the 2004  bad  check
charges,  he  attempted  to  obtain  a  continuance  of  a  court
proceeding by submitting a forged document.  This forged document
purported to be a memorandum from the Army stating that Hall  was
about to be deployed to Japan.  In fact, as noted above, Hall had
been discharged from the Army at the end of March 2003.)
          At  Halls  sentencing hearing in the present case,  his
attorney argued that Hall was an immature, youthful offender  who
deserved another chance.  The defense attorney urged the superior
court to suspend imposition of Halls sentence, conditioned on his
serving 1 year in jail.  See AS 12.55.085  086.
          Superior   Court  Judge  Larry  D.  Card  concluded   a
suspended imposition of sentence would be inconsistent  with  the
Chaney   sentencing  criteria   the  sentencing  criteria   first
announced  by  the  supreme court in State v. Chaney3  and  later
codified in AS 12.55.005.
          Judge  Card noted that Hall did not simply write a  bad
check  or  two, involving a small amount of money.  Rather,  Hall
engaged  in  a lengthy scheme to defraud  a scheme that  involved
numerous  victims,  and that involved bad  checks  totaling  over
$60,000.   Judge Card further noted that, because of the  greater
societal  harm caused by such schemes to defraud, the legislature
has  classified  this  type of behavior as  a  higher  degree  of
felony,  and sentencing courts are obliged to view this  type  of
behavior as a serious offense.
          Judge  Card  acknowledged  that  Hall  was  a  youthful
offender and that, for this reason, Halls rehabilitation  was  an
important  sentencing goal.  However, Judge Card  concluded  that
          Halls sentence had to adequately express the communitys
condemnation of this type of criminal behavior.
          Judge Card also concluded that another important aim of
Halls  sentence  should  be to deter Hall  from  future  criminal
behavior.   The  judge noted that it was not good that  Hall  had
previously  been  convicted of writing a bad check,  even  though
that  prior  conviction  was  ultimately  set  aside  after  Hall
completed his probation.
          For these reasons, Judge Card sentenced Hall to 4 years
imprisonment with 2 years suspended  i.e., 2 years to serve   for
the offense of scheme to defraud.  For Halls separate offense  of
violating  the  conditions of his release from the  now-dismissed
2004 bad check case, Judge Card imposed a consecutive 6 months to
serve  (1  years  imprisonment with 6 months  suspended).   Thus,
Halls composite sentence is 5 years with 2 years suspended.
          In this appeal, Hall argues that Judge Card was clearly
mistaken   when  he  rejected  Halls  request  for  a   suspended
imposition  of  sentence.  Hall relies primarily  on  the  Alaska
Supreme  Courts decision in Leuch v. State, 633 P.2d 1006 (Alaska
1981).  In Leuch, the supreme court declared:
          [When]  an  offense is against only property,
          involving  no  physical threats or  violence;
          [when]  it  is  the  offenders  first  felony
          conviction;  [and when the offender  has]  no
          background   of   unsuccessful   paroles   or
          probations   which   would   indicate    that
          probation is unsuitable to protect the public
          [and]  to  deter the offender, ... probation,
          coupled  with restitution, is the appropriate
          sentence   unless   other  factors   militate
          against it.
          Leuch,   633   P.2d  at  1013-14   (footnotes
          omitted).   Hall argues that he  fits  within
          this  description and that, for this  reason,
          Judge  Card  was  clearly  mistaken  when  he
          declined  to give Hall a suspended imposition
          of sentence.
                    Halls  argument  misapprehends  the
          Leuch decision on several levels.
          First,   Leuch  does  not   counsel
giving  all  property offenders  a  suspended
imposition  of  sentence.   For  purposes  of
Leuch,   a  sentence  of  probation  is   any
sentence that involves less than 90  days  of
imprisonment.  See Leuch, 633 P.2d at 1014 n.
22;  State v. Monk, 886 P.2d 1315, 1317 n.  4
(Alaska  App.  1994); State v.  Jackson,  776
P.2d 320, 326-27 (Alaska App. 1989).
          Second,  Leuch does  not  create  a
hard-and-fast rule that defendants  who  meet
the  above-quoted description should  receive
probationary sentences.
          The   Leuch  decision  itself  says
that,  even when a defendant has committed  a
non-violent property offense, and  even  when
the   defendant  has  no  record  of   failed
probations   or   paroles,  a   sentence   of
incarceration will nevertheless be  justified
by  a  finding that a [probationary] sentence
would fail to deter the defendant ... to  the
requisite degree.  Leuch, 633 P.2d at 1011.
          Even    though   Hall    apparently
satisfactorily  completed the probation  from
his   2001  bad  check  case,  Halls  history
justifies  Judge  Cards  conclusion  that   a
probationary  sentence would  not  adequately
deter Hall.  After being convicted of issuing
a  bad check in 2001, and after completing  a
years  probation, Hall returned to this  same
criminal behavior in early 2004; he  and  his
girlfriend  uttered five bad checks  totaling
almost  $8000.  Then, after Hall was indicted
for these crimes, and while Hall was released
on  bail,  he  returned to the same  criminal
behavior   engaging  in a scheme  to  defraud
that  involved  dozens  of  victims  and  bad
checks totaling approximately $65,000.  Based
on  Halls renewed criminal behavior while  on
bail  release,  Judge Card  could  reasonably
conclude  that giving Hall another  suspended
imposition  of sentence would fail  to  deter
[Hall] ... to the requisite degree.
          Moreover,  the Leuch decision  also
declares  that even when the goal of  special
deterrence   that  is,  deterrence   of   the
defendant personally  would be satisfied by a
probationary  sentence, [t]he preference  for
[probationary  sentences] may  be  overridden
...  by  the  ... Chaney considerations  [of]
general   deterrence  [i.e.,  deterrence   of
others]  and community condemnation.   Leuch,
633  P.2d at 1011.  In other words,  even  in
cases where a first offender has committed  a
non-violent  property crime,  the  defendants
criminal  behavior may be so serious  that  a
probationary  sentence would be  inconsistent
with  the  sentencing  goals  of   expressing
community  condemnation for the behavior  and
deterring  others  from engaging  in  similar
          This   Court  addressed  this  same
concept  in  State v. Jackson, 776  P.2d  320
(Alaska   App.   1989).    In   Jackson,   we
established a benchmark sentencing range of 1
to  4  years  imprisonment for  first  felony
offenders convicted of class B felonies.4  We
acknowledged  that the category  of  class  B
felonies  included some non-violent  property
          offenses.  We nevertheless concluded that the
Jackson  benchmark range of 1 to 4  years  to
serve was fully consistent with Leuch:

     Our  conclusion that a significant  term
of  incarceration  will  be  appropriate  for
typical  first offenders who commit  class  B
felonies is not inconsistent with the supreme
courts  decision in Leuch v. State, 633  P.2d
1006  (Alaska  1981).  In  Leuch,  the  court
indicated that, for first offenders convicted
of   crimes   against  property,   probation,
coupled  with restitution, is the appropriate
sentence   unless   other  factors   militate
against  it.   633  P.2d at 1013-14.   Leuch,
however,  dealt  with convictions  for  grand
theft  under our former criminal  code.   The
convictions involved conduct that would  have
amounted  to  theft in the second  degree,  a
class  C  felony  under our current  criminal
code.   See  AS 11.46.130.  The  decision  in
Leuch  expressly recognized that,  even  with
property crimes, the seriousness of any given
offense  is  a  legitimate  consideration  in
determining   the   appropriateness   of    a
probationary term.  In fact, in Leuchs  case,
the court declined to apply the rule favoring
imposition of a probationary term.  The court
concluded   that,   because   Leuch   had   a
misdemeanor record and because one of the two
felony  thefts  for which  he  was  convicted
involved  large-scale crime and had a  severe
impact  on the uninsured victim, 633 P.2d  at
1014,   a   period   of   incarceration   was
appropriate.  Under Alaskas revised  criminal
code,  only  aggravated property  crimes  are
designated as class B felonies.  In  contrast
to  Leuch,  in  which the most serious  theft
involved  property  valued  at  approximately
$12,500, under the current code theft in  the
first degree, a class B felony, is restricted
to cases involving property valued at $25,000
or  more.  See AS 11.46.130.  Thus,  in  most
cases,  the inherent seriousness of  property
offenses  that  qualify as class  B  felonies
will  justify  an exception to  the  rule  in
Leuch  and  call  for  the  imposition  of  a
nonprobationary term.  See Karr v. State, 686
P.2d 1192, 1195-96 (Alaska 1984).

Jackson, 776 P.2d at 326 n. 4.
          Because  Hall  was a  first  felony
offender  convicted  of  a  class  B   felony
(scheme  to  defraud),  his  sentencing   was
governed  by  the  Jackson  benchmark  range.
Judge Card sentenced Hall to serve 2 years in
prison  a term of imprisonment that falls  in
the middle of the benchmark range.
          As  we recently reiterated in State
v.  Brueggeman,  24  P.3d  583  (Alaska  App.
2001), Jackson stands for the principle  that
when  the legislature has determined  that  a
particular  crime  is serious  enough  to  be
classified  as  a B felony, a first  offender
convicted of that crime should not receive  a
probationary  sentence  i.e., a  sentence  of
less  than  90  days  to  serve   unless  the
defendants case is significantly mitigated in
terms of both the offender and the offense.5
          Judge  Card  concluded  that  Halls
offense  was  of at least typical seriousness
within  the range of schemes to defraud,  and
the  judge further concluded that Halls prior
conviction for writing a bad check  suggested
that it might be difficult to deter Hall from
future      criminal     conduct.      Having
independently  reviewed the record  in  Halls
case,  we  conclude that Judge Card  was  not
clearly  mistaken  when  he  rejected   Halls
request   for   a  suspended  imposition   of
sentence  and,  instead,  sentenced  Hall  to
serve a term of imprisonment in the middle of
the Jackson benchmark sentencing range.
          Hall also argues that, even if  his
sentence   for   scheme   to   defraud    was
reasonable,   Judge  Card  should  not   have
imposed  a  consecutive 6 months imprisonment
for  Halls  other offense, violation  of  the
conditions  of  release.  Hall contends  that
his  sentence  for this other offense  should
have  been  imposed concurrently rather  than
          When   we   review  the   composite
sentence  that a defendant has  received  for
two or more criminal convictions, our duty is
to  assess whether the composite sentence  is
clearly  mistaken, given  the  whole  of  the
defendants  conduct and  history.6   We  note
that   Hall   did  not  simply  violate   the
conditions of his release from the  2004  bad
check  charges.   Rather,  he  continued   to
engage  in exactly the same type of  criminal
behavior that led to those bad check charges.
Moreover,  Halls  criminal behavior  did  not
simply    continue.    Rather,   it    became
significantly  worse, both in  terms  of  the
amount  of  money involved and the number  of
victims  defrauded.  Given  the  totality  of
Halls   conduct,  we  conclude   that   Halls
composite sentence of 2 years to serve is not
          clearly mistaken.
          The   superior  courts   sentencing
decision is AFFIRMED.
     1AS 11.46.600(b).

     2AS 11.56.757(b)(1).

     3477 P.2d 441, 443-44 (Alaska 1970).

4Jackson, 776 P.2d at 326.

5Brueggeman, 24 P.3d at 590, quoting Jackson, 776 P.2d at

6Brown  v. State, 12 P.3d 201, 210 (Alaska App.  2000);
Comegys  v.  State, 747 P.2d 554, 558-59  (Alaska  App.

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