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Richards v. State (3/4/2011) ap-2297

Richards v. State (3/4/2011) ap-2297

        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: 

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                                                            Court of Appeals No. A-10570 
                                Appellant,                  Trial Court No. 1JU-09-360 Cr 

                                                                    O   P  I  N  I  O  N 

                                Appellee.                    No. 2297    -   March 4, 2011 

                Appeal from the Superior Court, First Judicial District, Juneau, 
                Patricia A. Collins, Judge. 

                Appearances:     Jane B. Martinez, Anchorage, for the Appellant. 
                Diane    L.   Wendlandt,   Assistant   Attorney   General,   Office   of 
                Special Prosecutions and   Appeals, Anchorage, and Daniel S. 
                Sullivan, Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                Todd E. Richards appeals his convictions for third-degree assault (placing 

another person in fear of imminent serious injury by means of a dangerous instrument) 

and fourth-degree criminal mischief (unlawfully damaging the property of another in an 

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amount of at least $50). 1         Richards asserts that the evidence presented at his trial is 

insufficient   to   support   the   jury's   verdicts.   Richards   also   asserts   that   the   18-month 

composite sentence he received for these two crimes is excessive. 

                 With     regard    to  Richards's      merit   appeal    (that   is,  his  attack   on   his 

convictions), we conclude that the evidence is sufficient to support the jury's verdicts, 

and we therefore affirm Richards's convictions for third-degree assault and fourth-degree 

criminal mischief.  With regard to the sentence appeal, however, we conclude that we do 

not have jurisdiction to review Richards's sentence, and we therefore refer that issue to 

the supreme court. 

         The sufficiency of the evidence to support Richards's convictions for third- 
        degree assault and fourth-degree criminal mischief 

                 When   a   defendant   claims   that   the   evidence   is   insufficient   to   support   a 

criminal conviction, we must view the evidence (and all reasonable inferences to be 
drawn   from   that   evidence)   in   the   light   most   favorable   to   upholding       the   verdict. 2 

Accordingly, we now present the facts of Richards's case in that light: 

                 On October 12, 2008, Richards and his wife Lorinda got into a fight after 

an evening of heavy drinking.   Lorinda testified that Richards attacked her, wrestled her 

to   the   floor   of   their   RV,   and   punched   her   in   the   eye. At   some   point   during   this 

altercation, Lorinda offered to leave, and she started gathering her possessions.                    When 

she asked Richards's son Travis to help her, Richards became enraged. Richards shoved 

her out the door and proceeded to throw her belongings outside, onto the ground. 

    1   AS 11.41.220(a)(1)(A) and AS 11.46.484(a)(1), respectively. 

    2   See, e.g., Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009). 

                                                    - 2 -                                                2297 

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

                 Lorinda began loading her belongings into her car.  As she was putting the 

last of her things into the car, Richards stormed out of the RV and said, "I'll show you, 

you fucking bitch."  Lorinda threw the remainder of her possessions into the car, got into 

the driver's seat, and turned on the headlights.            In the light of the headlights, she saw 
Richards coming toward her, carrying a splitting maul. 3 

                 Richards threw the splitting maul at his wife's car.               The maul smashed 

completely through the windshield, landing in the passenger's seat next to Lorinda.  In 

a   panic,   and   believing   that   her   husband   was   trying   to   kill   her,   Lorinda   floored   the 

accelerator - even though she was barely able to see through the damaged windshield. 

The vehicle struck Richards, apparently with a glancing blow, and then Lorinda drove 

away from the property. 

                 Lorinda drove to the local Tesoro gas station and asked the store clerk to 

call the police for her. The Tesoro store clerk testified that Lorinda was crying and "very 

distraught".     He observed that her windshield had a large vertical crack in it, and that 

there was a maul on the passenger's seat.  When the store clerk asked Lorinda for more 

information before he called the police, she told him that her husband had thrown the 

maul through the windshield. 

                 The recording of the 911 call from the gas station was played into evidence 

at   Richards's   trial.   During   this   call,   a   hysterical   Lorinda   can   be   heard   saying   that 

Richards threw an axe through her windshield, that he tried to kill her, and that she had 

glass in her eye and in her boots.         Lorinda was also concerned that Richards might be 

injured, because she had hit him with her car. 

    3   A splitting maul is a hand tool used for splitting wood.   One side of its head is shaped 

like   an  axe  (for  penetrating    the  wood),   while    the  other   side  of  its  head  is  flat   like  a 

                                                   - 3 -                                                2297 

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

                While   this   911   call   was   in   progress,   one   of   the   911   operators   called 

Richards's cell phone number to determine if he was in need of medical assistance. 

Richards repeatedly told the 911 operator that he was fine and   that he did not need 

medical attention.      Specifically, Richards stated, "We're fine; me and Travis are fine. 

Lorinda is gone, so it's all good." The 911 operator responded, "We're concerned about 

you being injured or something," to which Richards replied, "No, there's no - nothing 

like that.  ... [I'm] just cleaning up the place and getting ready for bed." 

                Sergeant Warren Bates, one of the police officers who responded to the 911 

call, described Lorinda as "very distraught" he testified that Lorinda told him that her 

husband had tried to kill her by throwing an axe through the windshield.                  Immediately 

after speaking to Lorinda, Sergeant Bates went to the Richards residence to investigate. 

Bates repeatedly knocked on the door of the RV, but no one answered. 

                Over     the  next   month,    Bates   made    several    attempts   to  contact   either 

Richards or his son Travis.        Bates finally succeeded in interviewing Richards about a 

month after the incident.        Richards told   Bates   that   he   was so drunk on the night in 

question that he had no memory of what happened. 

                This evidence, if believed, is sufficient to support the jury's verdicts on the 

assault and criminal mischief charges. 

                It is true that Richards and his son Travis took the stand at Richards's trial 

and offered a substantially different, exculpatory account of the events of that night. 

However, as explained above, when a defendant claims that the evidence is insufficient 

to support a criminal conviction, an appellate court must decide that claim by viewing 

the   evidence   in   the   light   most   favorable   to   the   jury's   verdict,   even   though   contrary 

evidence may have been presented at trial.            Viewing the trial evidence in that manner, 

it was sufficient to support Richards's convictions. 

                                                  - 4 -                                             2297

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        Richards's sentence appeal 

                Richards argues that his sentence for these two crimes is excessive. 

                As a first felony offender, Richards faced a presumptive sentencing range 
of 0 to 2 years' imprisonment for his third-degree assault conviction. 4               Superior Court 

Judge   Patricia   Collins   sentenced   Richards   to   a   term   of   24   months   with   12   months 

suspended   (i.e.,   12   months   to   serve).   Richards   faced   a   sentence   of   up   to   1   year's 
imprisonment   for       his  fourth-degree     criminal   mischief   conviction. 5     Judge     Collins 

sentenced Richards to a term of 12 months with 6 months suspended (i.e., 6 months to 

serve).    Judge   Collins   made   the   time-to-serve   components   of   these   two   sentences 

concurrent, and the suspended time consecutive.   Thus, Richards's composite sentence 

is 12 months to serve, with an additional 18 months suspended. 

                This Court has the authority to review a misdemeanor sentence that exceeds 

120 days to serve.  See AS 12.55.120(a) and AS 22.07.020(b).                   Thus, if Richards had 

been convicted of fourth-degree criminal mischief alone, and had been sentenced to the 

same 6 months to serve, we would have the authority to review his sentence. 

                But Richards's sentence for the felony offense of third-degree assault is 

only 12 months to serve.        Under AS 12.55.120(a), a defendant has no right to appeal a 

felony     sentence    unless    that  sentence     exceeds    2   years   to   serve   -    and,   under 

AS 22.07.020(b), this Court has no jurisdiction to review a felony sentence unless that 

sentence exceeds 2 years to serve.          Moreover, Richards's 12-month sentence is within 

the applicable presumptive sentencing range for a first felony offender convicted of 

    4   Third-degree   assault   is   a   class   C   felony;  see   AS   11.41.220(e). The   presumptive 

sentencing ranges for class C felonies are specified in AS 12.55.125(e). 

    5   Fourth-degree criminal mischief is a class A misdemeanor; see AS 11.46.484(b).  The 

maximum sentence for a class A misdemeanor is 1 year's imprisonment; AS 12.55.135(a). 

                                                  - 5 -                                               2297 

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

third-degree assault.        For   this additional reason, Richards has no right to appeal his 

felony sentence, and this Court has no jurisdiction to review it. See AS 12.55.120(e) and 

AS 22.07.020(b). 

                 It is true that the State has not opposed Richards's sentence appeal on these 

grounds (i.e., Richards's lack of entitlement to pursue an appeal, and this Court's lack 

of jurisdiction to entertain the appeal).  But when an appellate court perceives a potential 

flaw in its subject-matter jurisdiction, the court is required to address and resolve this 

jurisdictional issue before moving forward.  See Robertson v. Riplett, 194 P.3d 382, 386 

(Alaska 2008): "Subject matter jurisdiction ... may be raised at any stage of the litigation 

and[,] if noticed [by the court,] must be raised by the court if not raised by the parties." 

(Quoting Stone v. Stone, 647 P.2d 582, 584 n. 1 (Alaska 1982).)                     See also  O'Link v. 

O'Link, 632 P.2d 225, 226 n. 2 (Alaska 1981); Alaska Civil Rule 12(h)(3). 

                 (The corresponding federal law is the same:             if a court determines at any 

time that it lacks subject-matter jurisdiction, the court must dismiss the action, even if the 

parties have not raised this issue.       See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th 

Cir. 1979):     "[A] federal court, including a court of appeals, must raise the issue [of 

subject-matter jurisdiction] on its own motion where the parties fail to bring it to the 

court's attention.") 

                 The problem in the present case is that Richards   asks   us to review his 

composite sentence for excessiveness, but only one of his two sentences falls within our 

jurisdiction.      As     explained     above,    we    have    jurisdiction    to  review     Richards's 

misdemeanor sentence, but not his felony sentence.                Indeed, we would have no felony 

sentence appeal jurisdiction in   Richards's case even if we focused on the composite 

sentence that Richards received for both offenses. As we explained above, Judge Collins 

imposed      Richards's     active    terms   of  imprisonment       concurrently;     thus,   Richards's 

composite   sentence   is   the   same   12   months   to   serve   that   he   received   for   his   felony 

                                                   - 6 -                                              2297

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

conviction.     This   sentence   does   not   exceed   2   years   to   serve,   and   it   falls   within   the 

applicable presumptive range for Richards's felony offense (0 to 2 years). 

                 The    remaining     question    is   whether   we   should    proceed    to  decide    the 

misdemeanor portion of Richards's sentence appeal (i.e., the portion over which we have 

subject-matter jurisdiction).       We conclude that we should not. 

                 Both the Alaska Supreme Court and this Court have repeatedly held that 

when a defendant is sentenced for two or more offenses, Alaska law does not require that 

each of the defendant's separate sentences be individually justifiable under the Chaney 
sentencing   criteria, 6    as   if   that   sentence   had   been   imposed   in   isolation. Rather,   the 

question is whether the defendant's combined sentence is justified in light of the entirety 
of the defendant's conduct and history. 7 

                 Because of this rule, a defendant is not allowed to pursue a sentence appeal 

that attacks only a single sentence, or only isolated sentences, from among the entirety 

of the sentences imposed. An appellate court will not hear a defendant's sentence appeal 

in a case involving multiple offenses unless the defendant has appealed each of the 

sentences that contributes to the composite total - so that the court can meaningfully 
evaluate the whole. 8 

                 There is, moreover, a substantial possibility that our jurisdiction to review 

Richards's misdemeanor sentence arises from mere happenstance.                        As this Court has 

repeatedly observed, trial court judges who are sentencing offenders for multiple crimes 

    6   The sentencing goals were first enunciated in State v. Chaney, 477 P.2d 441, 443 

(Alaska 1970), and are now codified in AS 12.55.005. 

    7    Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Custer v. State, 88 P.3d 545, 549 

(Alaska   App. 2004); Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988);  Comegys v. 
State, 747 P.2d 554, 558-59 (Alaska App. 1987). 

    8   Custer, 88 P.3d at 549; Preston v. State, 583 P.2d 787, 788 (Alaska 1978). 

                                                   - 7 -                                              2297

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generally do not select particular individual sentences for the defendant's individual 

crimes.     Rather,   judges   select   a   composite   total,   and   then  they  impose   individual 
sentences that add up to that total, often in a fortuitous way. 9 

                In Richards's case, Judge Collins imposed a composite 12 months to serve 

- comprised of 12 months to serve for the felony and a concurrent 6 months to serve 

for the misdemeanor.       But Judge Collins might just as easily have given Richards only 

a concurrent 3 months to serve for the misdemeanor - in which case, we would clearly 

lack jurisdiction to review either of Richards's sentences. 

                Because Richards would not be entitled to appeal his misdemeanor sentence 

in isolation, and because the propriety of Richards's sentence must be assessed in light 

of the totality of his conduct and background, we conclude that we should not review 

Richards's      misdemeanor       sentence    when    we    have   no   jurisdiction   to  review    his 

accompanying felony sentence. Instead, we refer Richards's case to the Alaska Supreme 

Court under Appellate Rule 215(k). 

                That is, Richards's attack on his composite sentence must be deemed a 

petition   for   discretionary   sentence   review,   and   that   petition   must   be   decided   by   the 

supreme court under Appellate Rules 215(a) and 403(h). 


                Richards's convictions for third-degree assault and fourth-degree criminal 

mischief are AFFIRMED, but we lack jurisdiction to decide whether his sentence for 

these crimes is excessive.      That matter is referred to the supreme court. 

    9   See Billum v. State, 151 P.3d 507, 509-510 (Alaska App. 2006); Moore v. State, 123 

P.3d 1081, 1093-94 (Alaska App. 2005); Allain v. State , 810 P.2d 1019, 1022 (Alaska App. 

                                                 - 8 -                                              2297 
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