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Nicholas Dale James Johnson v State of Alaska (11/13/2020) ap-2685

Nicholas Dale James Johnson v State of Alaska (11/13/2020) ap-2685

                                                                                     NOTICE
  

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                          IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                             



NICHOLAS DALE JAMES JOHNSON,   

                                                                                                         Court of Appeals Nos. A-12911 &
  

                                                                                                                                                                               

                                                          Appellant,                                                                A-12912
  

                                                                                                    Trial Court Nos. 3PA-15-01451 CR &
                                                 

                                           v.                                                                             3PA-15-00260 CR
   



STATE OF ALASKA,                                                                                                               O P I N I O N  

                   

                                                                                                                                                         



                                                          Appellee.                                       No. 2685 - November 13, 2020  

                                                                                                                                                                      



                             Appeal from the District Court, Third Judicial District, Palmer,  

                                                                                                                                                

                             William L. Estelle, Judge.  

                                                                       



                             Appearances:  Rachel E. Cella, Assistant Public Defender, and  

                                                                                                                                                        

                             Beth Goldstein, Acting Public  Defender, Anchorage, for the  

                                                                                                                                                        

                             Appellant.                 Glenn  J.  Shidner,  Assistant  District  Attorney,  

                                                                                                 

                             Palmer, and Kevin G. Clarkson, Attorney General, Juneau, for  

                                                                                                                                                         

                             the Appellee.  

                                                           



                             Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                                                                                           

                             Judges.  

                                               



                             Judge WOLLENBERG.  

                                           



                             This consolidated appeal arises from probation revocation proceedings                                                               



in two separate cases.                               The district court found that Nicholas Dale James Johnson                                           



violated his                probation in both cases because he failed to comply with a probation                                                                      


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

                                                                                                                                     

condition requiring him to participate in an Alcohol Safety Action Program (ASAP).  



                                                                                                                     

After finding that Johnson violated his probation, thedistrictcourt extended Johnson's  



                                                                                                                         

term of probation from 3 years to 5 years in one of the cases, and imposed 5 days to  



                                                                          

serve and a fine of $1,000 in the second case.  



                                                                                                                                 

                    Johnson now appeals.  Johnson argues that the extension of his term of  



                                                                                                                            

probation in the first case was illegal.  He also argues that the court lacked good cause  



                                                                                                                          

to revoke his probation in the second case and that the court's imposition of 5 days of  



                                                                    

incarceration and a $1,000 fine was clearly mistaken.  



                                                                                                                                

                    For the reasons explained in this opinion, we agree with Johnson that the  



                                                                                                                                

governing law at the time of Johnson's probation revocation proceeding precluded the  



                                                                                                                                

district court from lengthening Johnson's term of probation in his first case.  But we  



                                                                                             

uphold the district court's disposition in Johnson's second case.  



                               

          Background facts  



                                                                                                                              

                    In March 2015, Johnson pleaded guilty to first-degree harassment in case  



                                                                                                                       

number 3PA-15-00260 CR.  For this conviction, the district court sentenced Johnson  



                                                                                                                      

to 100 days with 80 days suspended, and a 3-year term of probation.  As a condition  



                                                                                                                                

of probation, the court ordered Johnson to complete any treatment recommended by  



                                                                      

an Alcohol Safety Action Program (ASAP).  



                                                                                                              

                    Several  months  later,  the  State  charged  Johnson  with  misdemeanor  



                                                                                                                        

driving under the influence (DUI) and driving while license revoked in case number  



                                                                                                                               

3PA-15-01451 CR.  In November 2015, Johnson pleaded guilty to both charges.  For  



                                                                                                           

the DUI conviction, the court sentenced Johnson to 130 days with 100 days suspended,  



                                                                                                                            

a  fine  of  $6,000  with  $3,000  suspended,  and  a  5-year  term  of  probation.                                         As  a  



                                                                                                                         

condition of probation, the court ordered Johnson to complete ASAP. For the driving  



                                                              - 2 -                                                          2685
  


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

                                                                                                                            

while license revoked conviction, the court sentenced Johnson to 90 days with 80 days  



                                                                                                               

suspended, a fine of $2,000 with $500 suspended, and a 1-year term of probation.  



                                                                                                                        

                    One  month  later,  in  December  2015,  the  State  petitioned  to  revoke  



                                                                                                                                    

Johnson's probation in both cases for failure to comply with the ASAP requirement.  



                                                                                                                            

In January 2016, Johnson admitted to the probation violation in the harassment case,  



                                                                                                                       

and the court reassigned him to ASAP.  The State withdrew the petition to  revoke  



                                            

probation in the DUI case.  



                                                                                                              

                    Through  ASAP,  Johnson  selected  Set  Free  Alaska  as  his  treatment  



                                                                                                                              

provider.  Following a substance abuse evaluation, Set Free Alaska recommended that  



                                                              

Johnson engage in intensive outpatient treatment.  



                                                                                                   

                    Later, in April 2016, the State petitioned to revoke Johnson's probation  



                                                                                                                              

in the DUI case, alleging that he had committed a new criminal offense.  (The State did  



                                                                                                                         

not petition at that time to revoke Johnson's probation in the harassment case.) During  



                                                                                                                         

thependencyof these probation revocation proceedings, in June 2016, Set Free Alaska  



                                                                               

reported that Johnson was not in compliance with treatment.  



                                                                                                                              

                    In August 2016, after Johnson admitted to the probation violation, the  



                                                                                                                             

court imposed 10 days of previously suspended jail time in Johnson's DUI case, and  



                                                                                                                              

reassigned him to ASAP.  (Johnson had also apparently contacted ASAP by then and  



                                                             

been reassigned to Set Free Alaska for treatment.)  



                                                                                                                               

                    In  September  2016,  Set  Free  Alaska  again  reported  Johnson  out  of  



                                                                                                                               

compliance.           ASAP  contacted  Johnson  and  referred  him  back  to  treatment.                                       In  



                                                                                                                             

November 2016, Set Free Alaska yet again reported Johnson out of compliance, and  



                                                            

ASAP was unsuccessful in contacting him.  



                                                              -  3 -                                                        2685
  


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

                                                                                                                    

                    Accordingly, in December 2016, the State petitioned to revoke Johnson's  



                                                                                                                          

probation  in  both  cases  for  non-compliance with  the ASAP  requirement.                                             These  



                                                                        

revocation proceedings are the subject of this appeal.  



                                                                                                                         

                    The courtheld a contested adjudication hearing on the petitions to revoke  



                                                                                                                             

Johnson's probation.   Following the presentation of evidence, the court found that  



                                                                                                                             

Johnson had violated the ASAP condition in both cases.  The court also found that  



                                                                                    

there was good cause to revoke Johnson's probation.  



                                                                                                                                

                    In  the harassment case, the district court extended Johnson's term of  



                                                                                                                              

probation from 3 years to 5 years, and then reassigned him to ASAP.  The court did  



                                                 

not impose any time to serve.  



                                                                                                                                

                    In the DUI case, the court imposed 5 days to serve, ordered Johnson to  



                                                                                                                                    

pay $1,000 of the previously suspended DUI fine, and then reassigned him to ASAP.  



                                                                                                                                

(The court permitted Johnson to do 40 hours of community work service in lieu of  



                                                    

serving 5 days of incarceration.)  



                                        

                    This appeal followed.  



                                                                                                               

           Why we conclude that the district court lacked the authority to extend  

                                                             

          Johnson's term of probation in his harassment case  



                                                                                                                    

                    Johnson challenges the district court's extension of his term of probation  



                                                                                                           

in  his  first-degree  harassment  case.                    Johnson  notes  that,  prior  to  his  disposition  



                                                                                                                               

hearing, the legislature significantly reduced the maximum term of probation for all  



                                                                                                                             

misdemeanor  offenses  - and  he argues  that this  statutory change precluded  any  



                                                             

further extension of his 3-year term of probation.  



                                                                                                                               

                    When  Johnson  was  first  sentenced  in  2015,  the  maximum  term  of  



                                                                                                                              

probation for all misdemeanor and felony offenses (with the exception of felony sex  



                                                              - 4 -                                                         2685
  


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

                                                     1  

offenses)   was  10 years.                                Pursuant to                  a plea agreement with                              the State,            the court   



imposed a 3-year term of probation for Johnson's first-degree harassment conviction.                                                                        



                            But in 2016, the legislature revised the maximum terms of probation set                                                                           

                                                2   Under the revised statute, which took effect on July 12, 2016,  

out in AS 12.55.090(c).                                                                                                                                                  

the legislature reduced the maximum term of probation for all misdemeanor offenses.3  

                                                                                                                                                                                      



Depending on the offense, the maximum term of probation for a misdemeanor under  

                                                                                                                                                                        

the revised statute ranged from 1 year to 3 years.4                                                          Despite this change, at Johnson's  

                                                                                                                                                              



probation  revocation  proceeding  in  2017,  the  court  increased  Johnson's  term  of  

                                                                                                                                                                               



probation from 3 to 5 years.  

                                                



                            The question before us is which version  of  the law applied when the  

                                                                                                                                                                             



districtcourt extended Johnson's term of probation. TheStatecontends thatJohnson's  

                                                                                                                                                               



disposition hearing was governed by the version of AS 12.55.090(c) that was in effect  

                                                                                                                                                                        



when  Johnson  was  sentenced  in  2015.                                                     In  contrast,  Johnson  contends  that  his  

                                                                                                                                                                             



disposition hearing was governed by the law in effect at the time the district court  

                                                                                                                                                                         



extended his probation.  

                                                    



       1      Former AS 12.55.090(c) (2015).                                      The maximum term of probation for a felony sex                                             



offense was 25 years.                         Id.  



       2      SLA 2016, ch. 36,  79.  

                                                         



       3      Id.  at  79, 188; see Jonas v. State, 2018 WL 3769174, at *3 n.13 (Alaska App.  

                                                                                                                                                                          

Aug. 8, 2018) (unpublished) (explaining the  July 12, 2016 effective date of the revised  

                                                                                                                                                                     

AS 12.55.090(c)).  



       4  

                                                                                                                                                                        

              Former AS 12.55.090(c)(4)-(6) (version effective July 12, 2016).  The statute set out  

                                                                                                                                                                   

maximum  probation  terms  for  felony  offenses,  ranging  from  5  to  15  years.                                                                                 Former  

                                                                                                                      

AS 12.55.090(c)(1)-(3) (version effective July 12, 2016).  



                                                                                     -  5 -                                                                               2685
  


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

                      In interpreting a statute, we examine the plain                                 meaning, the legislative     

                                                                                5  Based on this examination, we agree  

history, and the legislative purpose of the statute.                                                                                  



with Johnson that the trial court was precluded from extending his probation beyond  

                                                                                                                                  



its  original 3-year  term.                 There is  no  question  that when  Johnson  was  originally  

                                                                                                                              



sentenced in 2015, the trial court had the authority to impose a probation term of up  

                                                                                                                                          



to 10 years.  But when the legislature revised AS 12.55.090(c), it expressly stated that  

                                                                                                                                         



the revised statute "applie[d] to probation ordered on or after the effective date . . . for  

                                                                                                                                          

offenses committed before, on, or after the effective date."6  

                                                                                                       When the district court  

                                                                                                                                      



extended Johnson's probation term from 3 to 5 years, it was ordering an additional  

                                                                                                                              



period of probation.  

                  



                      Moreover, thestatuteitself stated that "[t]he period of probation, together  

                                                                                                                                 

with any extension, may not exceed" the relevant maximum term.7  Reading the statute  

                                                                                                                                    



and the applicability provision together, we conclude that the legislature intended that  

                                                                                                                                         



any new periods of probation - as well as any extensions of the original probation  

                                                                                                                               



period - ordered on or after the effective date of the revised statute would not exceed  

                                                                                                                                   



the maximum terms of probation set out in that statute.  

                                                                                               



                      This interpretation comports with the purpose of the statutory change at  

                                                                                                                                            

the time, which was to focus supervision resources on "high-needs" probationers.8   It  

                                                                                                                                             



      5    Alaska   Trustee,  LLC  v.  Bachmeier ,  332  P.3d   1,  7  (Alaska  2014).  



      6    SLA  2016,  ch.  36,     79,   185.  



      7    Former AS 12.55.090(c) (version effective July  12, 2016) (emphasis added).  

                                                                                                                           



      8    Senator John Coghill, Sponsor Statement for Senate Bill 91, Version N at 2 (Mar. 28,  

                                                                                                                                          

2016) (stating that the intent of the revision was to strengthen probation supervision in part  

                                                                                                                                         

by  focusing treatment resources  on "high-needs  offenders"); see  also  Alaska  Criminal  

                                                                                                                                

Justice Commission, Justice Reinvestment Report, at 13, 24-25 (Dec. 2015) (recommending  

                                                                                                                       

                                                                                                                         (continued...)  



                                                                   - 6 -                                                               2685
  


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

makes little sense that the legislature would have intended to cap the term of probation                                                                  



imposed at new sentencing hearings for misdemeanor convictions, but continue to                                                                                          



allow judges at disposition hearings to extend probation for those same offenses up to                                                                                   



 10 years.          

                                                                                                                       9   In Grim, we held that -  

                           We addressed a similar issue in                                 Grim v. State              .                                                 



when the legislature reduced the applicable sentencing ranges between the time of  

                                                                                                                                                                        



Grim's original sentencing hearing and his re-sentencing following a remand from this  

                                                                                                                                                                      



Court - Grim's case was governed by the reduced sentencing ranges in effect at the  

                                                                                                                                                                       



time of Grim's re-sentencing hearing.   We noted that the legislature had expressly  

                                                                                                                                                          



provided that the reduced presumptive sentencing ranges would "apply to sentences  

                                                                                                                                                          



imposed on or after the effective date of those sections for conduct occurring before,  

                                                                                                                                                               

on, or after the effective date of  those sections."10                                                      (The effective date for the new  

                                                                                                                                                                    



sentencing ranges, like the effective date for the revised maximum probation terms,  

                                                                                                                                                                

was July 12, 2016.11)  We therefore concluded that the new sentencing ranges applied  

                                                                                                                                                



even to re-sentencing hearings - and in particular, to sentences imposed on or after  

                                                                                                                                                                    



       8     (...continued)  



                                                                                                                                                                       

reduced maximum probation terms in order to "more effectively focus scarce probation and  

                                                                                                                                                                       

parole resources on offenders at the time they are most likely to re-offend or fail," in the  

                                                                                 

first few months after initial release from incarceration).  



       9      Grim v. State, 2019 WL 3814432, at *1 (Alaska App. Aug. 14, 2019) (unpublished).  

                                                                                                                                                  



       10  

                                                                                         

             Id.  at *2 (quoting SLA 2016, ch. 36,  185(u)).  



       11     SLA 2016, ch. 36,  88-90, 188; see Jonas v. State, 2018 WL 3769174, at *3 n.13  

                                                                                                                                                                     

(Alaska App. Aug. 8, 2018) (unpublished).  

                                                                                      



                                                                                  -  7 -                                                                            2685
  


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

July 12, 2016 "when the judge is either required to, or discretionarily decides to, hold                                                                              

a sentencing hearing in order to resentence a defendant."                                                             12  



                           The reasoning in our decision in Grim applies equally to Johnson's case.  

                                                                                                                                                                                 



Johnson was ordered to spend additional time on probation after July 12, 2016 for an  

                                                                                                                                                                           



offense he had committed before that date.  Under the version of AS 12.55.090(c) in  

                                                                                                                                                                           



effect at the time of Johnson's disposition hearing in June 2017, the court had no  

                                                                                                                                                                         



authority to further extend Johnson's period of probation.  

                                                                                                                           

                           The legislature has since repealed the 2016 version of AS 12.55.090(c).13  

                                                                                                                                          

                                                                                                                                                                                 



Under the current version of AS 12.55.090(c), enacted in 2019, the maximum term of  

                                                                                                                                                                           



probation that can be imposed for Johnson's first-degree harassment conviction is  

                                                                                                                                                                            



again 10 years.   But this change applies only "to conduct occurring on or after the  

                                                                                                                                                       

effective date" of this change.14                                    Thus, on remand,  the district court cannot extend  

                                                                                                                                                                 



Johnson's  probation  beyond  3  years  because  the  conduct  at  issue  in  this  appeal  

                                                                                                                                                       



occurred prior to the effective date of the current version of AS 12.55.090(c).  

                                                                                                                              



                           Accordingly, wevacatethe 5-year term of probation in case number 3PA- 

                                                                                                                                                                     



 15-00260 CR.  On remand, the district court is directed to reinstate the original 3-year  

                                                                                                                                                                  



term of probation in that case.  

                                       



              Why we uphold the district court's disposition in Johnson's DUI case  

                                                                                                                                                       



                           Johnson  argues that the district court lacked good cause to revoke his  

                                                                                                                                                                         



probation in his DUI case. In the alternative, Johnson argues that the court was clearly  

                                                                                                                                                         



       12     Grim, 2019 WL 3814432, at *2.                       



       13     FSSLA 2019, ch. 4,  68 (House Bill 49).  

                                                                                



       14    Id.  at  142(d) (emphasis added).  

                                                                 



                                                                                   -  8 -                                                                             2685
  


----------------------- Page 9-----------------------

mistaken in imposing 5 days of his previously suspended sentence (or 40 hours of                                                                         



community work service) and $1,000 of his previously suspended fine.                                                                   



                          Probation revocation proceedings involve a two-step process.                                                                  The first  

                                                                                                                                               15    If the trial  

question is whether the probationer violated a condition of probation.                                                                                            



court finds a violation, the court then proceeds to the second stage of the proceedings  

                                                                                                                                                  

                                                                               16   The trial court's determination of whether  

and determines the proper disposition.                                                                                                                    

                                                       



there is "good cause" to revoke probation and impose a term of incarceration is part  

                                                                                                                                                              

of this second stage.17  

                              



                          In order to find "good cause" to revokeadefendant's probation, the court  

                                                                                                                                                                



must conclude that "continuation of [the current] probationary status would be at odds  

                                                                                                                                                                 



with   the   need   to   protect  society  and   society's   interest  in   the   probationer's  

                                                                                                                                            

rehabilitation."18   In other words, a violation of a condition of probation should result  

                                                                                                                                                               



in revocation only "when that violation indicates that the corrective aims of probation  

                                                                                                                                                       

cannot be achieved" without returning the probationer to prison.19  

                                                                                                                     



                          Here, the district court found, and Johnson concedes, that he violated the  

                                                                                                                                                                     



terms of his probation by failing to comply with the ASAP requirement.  But Johnson  

                                                                                                                                                         



       15    Trumbly v. State                , 515 P.2d 707, 709-10 (Alaska 1973).                         



       16    State  v.  Pulusila, 467  P.3d  211, 218  (Alaska  2020) (discussing and  reaffirming  

                                                                                                                                                    

Trumbly, 515 P.2d at 709-710).  

                                      



       17    Id. (citing Holton v. State , 602 P.2d 1228, 1239 (Alaska 1979)); Trumbly, 515 P.2d  

                                                                                                                                                                  

709; see also  AS 12.55.110(a) ("When [a] sentence has been suspended, it may not be  

                                                                                                                                                              

revoked except for good cause shown.").  

                                                             



       18    Pulusila , 467 P.3d at 217-18 (quoting Trumbly, 515 P.3d at 709).  

                                                                                                                            



       19    Id.  (quoting Trumbly, 515 P.3d at 709).  

                                                                          



                                                                                -  9 -                                                                           2685
  


----------------------- Page 10-----------------------

                                                                                                                   

disagrees  that  this  finding,  in  light  of  the  circumstances  surrounding  Johnson's  



                                                                                            

violation, established good cause to revoke his probation.  



                                                                                                                     

                    At  the  contested  adjudication  hearing,  the  ASAP  program  manager  



                                                                                                                               

testified that, following Johnson's last reassignment to ASAP in  October 2016, he  



                                                                                                                           

failed  to  contact Set Free Alaska,  the  outpatient  provider  to  whom  he had  been  



                                                                                                          

referred.  The program manager also testified to Johnson's multiple reassignments to  



                                                                     

Set Free Alaska from June 2016 to October 2016.  



                                                                                                                    

                    Johnson  -  who  worked  in  construction  -  testified  that  his  work  



                                                                                                                      

schedule interfered with his  ability to comply with ASAP.   In particular, Johnson  



                                                                                                                  

testified that in the summer of 2016, his work involved long hours, and he was unable  



                                                                                                                     

to  meet  the  attendance  requirements  of  the  treatment  program.                                         But  Johnson  



                                                                                                                               

acknowledged that since construction work is seasonaland primarilyoccurs during the  



                                                                                                                            

summer,  the  hours  he  worked  varied  depending  on  the  time  of  year.                                          He  also  



                                                                                                                                

acknowledged that he was out of compliance with treatment in the fall of 2016, but he  



                                                                                                                     

claimed that staff at Set Free Alaska advised him that they would contact ASAP to  



                                                                                                                          

report  his  non-compliance  and  that,  after  a  ninety-day  waiting  period,  he  could  



                       

continue with his treatment.  



                                                                                                                   

                    The district court found that there was good cause to revoke Johnson's  



                                                                                                                    

probation.  The court noted that Johnson had "been through a couple of rounds of  



                                                                                                                            

PTRs and reassignments to ASAP." The court appreciated the conflict that might arise  



                                                                                                                        

between attending treatment and working construction during the heightof the season.  



                                                                                                                            

But the court found  that Johnson  had  made a choice to  prioritize  working  over  



                                                                                                                             

complying  with  treatment,  despite  the  legal  obligation  that  he  had  to  fulfill  this  



                                                                                                                            

condition of probation in two unrelated cases.   The district court also found  that  



                                                                                                                 

Johnson had failed to take responsibility for complying with ASAP and was instead  



                                                             -  10 -                                                        2685
  


----------------------- Page 11-----------------------

blaming the treatment provider for failing to inform ASAP staff about the delays he                                                                                                                                                                                                                                                         



was experiencing in treatment due to his job.                                                                                                                        



                                                          The district court reviewed Johnson's extensive criminal history, which                                                                                                                                                                                                                         



included multiple convictions for assault and violating domestic violence restraining                                                                                                                                                                                                                                                 



orders.    The court noted that Johnson had                                                                                                                                                      two DUI convictions - both with high                                                                                                                            



blood alcohol levels - as well as prior petitions to revoke probation. The court found                                                                                                                                                                                                                                                                     



that in light of Johnson's criminalhistory, "compliance with probation [was] not a new                                                                                                                                                                                                                                                                         



experience" for him.   



                                                          We conclude that, based on this history and evidence of Johnson's past                                                                                                                                                                                   



alcohol abuse, the district court could reasonably find that compliance with ASAP was                                                                                                                                                                                                                                                  



aprimary aspect of Johnson's rehabilitation and thatJohnson's repeated failureto meet                                                                                                                                                                                                                                                                            



this condition constituted good cause to revoke his probation.                                                                                                                                                      



                                                          In the alternative, Johnson argues that the district court gave inadequate                                                                                                                                                                                                 



consideration to the                                                                     Chaney  factors and imposed a sentence that is inconsistent with                                                                                                                                                                                                        

Johnson's rehabilitation.20  



                                                          Although the district court did not expressly discuss the Chaney factors,  

                                                                                                                                                                                                                                                                                                                                                    

the court generally addressed the important circumstances of Johnson's cases.21                                                                                                                                                                                                                                                                                       For  

                                                                                                                                                                                                                                                                                                                                                                   



instance, the court considered the seriousness of Johnson's offenses, his extensive  

                                                                                                                                                                                                                                                                                                                           



criminal history, his prior failures to comply with ASAP, and his prior revocations  

                                                                                                                                                                                                                                                                                                                                 



where he was given additional chances to comply with probation.  

                                                                                                                                                                                                                                                     



                                                          Johnson agrees that the court considered these aspects of the case, but he  

                                                                                                                                                                                                                                                                                                                                                                           



contends that the court was required to discuss therelativeseriousness of the probation  

                                                                                                                                                                                                                                                                                                                                           



               20            See State v. Chaney                                                                  , 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005.                                                                                                                                                                                   



               21            See Evans v. State, 574 P.2d 24, 26 (Alaska 1978) ("The trial court need not recite  

                                                                                                                                                                                                                                                                                                                                               

the goals of sentencing as long as it is clear that it has considered those goals.").  

                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                              -  11 -                                                                                                                                                                              2685
  


----------------------- Page 12-----------------------

violation and Johnson's rehabilitative potential.                                                                          But the core of the court's remarks               



focused on Johnson's repeated decisions to give ASAP a low priority, despite the role                                                                                                                       



alcohol had played in his underlying offenses.                                                                        The district court expressly noted that                                               



Johnson's DUI in this case was aggravated due to his high breath alcohol level (.197                                                                                                                     



percent) - and the record shows both that Johnson's breath alcohol level in his prior                                                                                                           



DUI was even higher (.264 percent), and that the harassment offense also involved                                                                                                              



alcohol.  



                                                                                                                                                                                             

                                 Given this record, it is clear that the district court considered substance  



                                                                                                                                                                                                      

abuse  treatment  an  important  part  of  Johnson's  rehabilitation.                                                                                                      The  court  could  



                                                                                                                                                                                            

reasonably find that Johnson's repeated failure to complete ASAP was an important  



                                                             

factor in the sentencing decision.  



                                                                                                                                                                            

                                 Wereview excessivesentenceclaims under a deferential clearly-mistaken  

                       22       This  test is  "founded  on  two  concepts:   first,  that reasonable judges,  

standard.                                                                                                                                                                                         



confronted with identical facts, can and will differ on what constitutes an appropriate  

                                                                                                                                                                                        



sentence;[and] second, that society is willing to accept these sentencing discrepancies,  

                                                                                                                                                                                  



so long as a judge's sentencing decision falls within a permissible range of reasonable  

                                                                                                                                                                                           

sentences."23  

                                  



                                 Having reviewed therecord, weconclude that the sentence imposed upon  

                                                                                                                                                                                                         



the revocation of Johnson's probation in the DUI case was not clearly mistaken.  

                                                                                                                                                                                   



                 Conclusion  



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



        23      Erickson v. State , 950 P.2d 580, 586 (Alaska App. 1997) (internal quotation marks  

                                                                                                                                                                                                       

and citations omitted).  

                                



                                                                                                   -  12 -                                                                                                2685
  


----------------------- Page 13-----------------------

                                                                                                                     

                   With respect to case number 3PA-15-01451 CR, we AFFIRM the district  



court's judgment.  



                                                                                                                     

                   With respect to case number 3PA-15-00260 CR, we VACATEthe district  



                                                                                                                          

court's order extending Johnson's term of probation to 5 years, and we REMAND this  



                                                                                                                            

case for the district court to correct the judgment to reflect the original 3-year term of  



                                                                     

probation.  With that exception, we AFFIRM the judgment.  



                                                           -  13 -                                                      2685
  

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