Bumpus v. State

776 P.2d 329, 1989 Alas. App. LEXIS 50, 1989 WL 68196
CourtCourt of Appeals of Alaska
DecidedJune 23, 1989
DocketA-2606
StatusPublished
Cited by5 cases

This text of 776 P.2d 329 (Bumpus v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bumpus v. State, 776 P.2d 329, 1989 Alas. App. LEXIS 50, 1989 WL 68196 (Ala. Ct. App. 1989).

Opinions

OPINION

BRYNER, Chief Judge.

Donald L. Bumpus was convicted after pleading no contest to two counts of burglary in the first degree, in violation of AS 11.46.300(a)(1). The offenses are class B felonies, with maximum terms of ten years’ imprisonment. Bumpus had previously been convicted of three felonies and was therefore subject to presumptive terms of six years. AS 12.55.125(d). Superior Court Judge J. Justin Ripley sentenced Bumpus to adjusted presumptive terms of seven years for each count and made these sentences consecutive to each other and to a nine-year sentence Bumpus had received [332]*332in Fairbanks for related burglary and theft convictions. Judge Ripley further specified that Bumpus would be ineligible for parole. Bumpus’ total sentence is thus twenty-three years in prison without possibility of parole. Bumpus appeals this sentence as excessive. We reverse.

THE OFFENSES

Bumpus’ convictions in the current case stem from burglaries of resort cabins in the Matanuska/Susitna (Mat/Su) Valley. In committing the offenses, Bumpus acted as part of a group of burglars comprised of five men, four of whom (including Bumpus) burglarized cabins and one of whom acted as a fence for the stolen property. The burglary ring operated from May through September 1987 and was responsible for approximately fifty burglaries in the Mat/Su Valley and Fairbanks areas. Bum-pus did not become a member of the group until approximately July 7, however, and his participation thereafter was apparently to some extent limited.

On September 6,1987, Bumpus and three colleagues burglarized the Gary Olsen cabin in Willow; on September 12, 1987, the same group burglarized the Big Lake residence of Bill Scholten. The group stole approximately $9,324. Bumpus indicated that he committed the burglaries because he needed money to pay rent and purchase drugs, particularly heroin and cocaine. Following apprehension, Bumpus assisted the authorities in attempting to retrieve the property stolen in these and other burglaries.

THE OFFENDER

At the time of the offenses, Bumpus was twenty-nine years old. He had been honorably discharged from the United States military and had obtained his general education diploma while incarcerated for earlier offenses. Bumpus has been sporadically employed as an adult. His longest period of employment was between 1981 and 1982, as a drug counselor for the American Dependency and Abuse Program in Anchorage. He worked with the program until its federal funding was terminated. Bumpus has never been married and has no children. He has a serious substance abuse problem. He smokes marijuana and was using heroin and cocaine intravenously on a daily basis prior to arrest.

Bumpus has no juvenile record but has an extensive adult criminal record. In 1977 he was convicted of shoplifting and burglary not in a dwelling. For the burglary, Bumpus served 180 days in jail. In 1978 he was convicted of receiving stolen merchandise, a felony for which he received a suspended sentence. In 1984, Bumpus was convicted of second-degree burglary, his third felony conviction. He received a three-year presumptive sentence and was released in July 1987. Almost immediately thereafter, he became involved in the burglary ring whose activities resulted in Bumpus’ current convictions.

THE SENTENCING

In connection with burglaries committed in the Fairbanks area, Bumpus pled no contest to one count of burglary in the first degree, AS 11.46.300, one count of theft by receiving, AS 11.46.130, and three counts of burglary in the second degree, AS 11.-46.310. Superior Court Judge Jay Hodges sentenced Bumpus to a composite term of nine years’ imprisonment for these offenses. The nine-year sentence is not directly challenged in this appeal.

For the Mat/Su Valley crimes, Bumpus' separately pled no contest in Palmer to two counts of burglary in the first degree. He appeared for sentencing before Judge Ripley after having already been sentenced for the Fairbanks offenses.

By virtue of having previously been convicted of more than one felony, Bumpus was subject to presumptive terms of six years for each of his burglary convictions. At the sentencing hearing, the state established the applicability of three statutory aggravating factors: first, that Bumpus was a member of an organized group of five or more persons and that his offenses were committed to further the group’s criminal objectives (AS 12.55.155(c)(14)); second, that Bumpus had three prior felony [333]*333convictions (AS 12.55.155(c)(15)); and, third, that Bumpus had a criminal history of repeated instances of criminal misconduct similar to the offenses for which he was being sentenced (AS 12.55.155(c)(21)).

In imposing sentence, Judge Ripley noted Bumpus’ substantial criminal history. He found that Bumpus was a worst offender and that his conduct was among the worst included within the definition of the offense. Judge Ripley noted that Bumpus’ drug addiction indicated that he was not as culpable or guilty as a professional criminal committing the offenses for profit. Nonetheless, Judge Ripley found that Bumpus’ past efforts to address his drug problem had been unsuccessful and that the community could no longer tolerate Bumpus’ activities. Judge Ripley also found that Bumpus was sincerely remorseful. On balance, however, the judge emphasized deterrence of Bumpus, deterrence of others, and reaffirmation of societal norms. Judge Ripley reasoned that the community was entitled to protection against habitual burglars and that a message should be sent to those that steal to support a drug habit that their efforts will eventually lead to substantial prison terms.

These considerations led Judge Ripley to conclude that “a massively long sentence is appropriate.” Judge Ripley imposed aggravated presumptive sentences of seven years on each count. The sentences were imposed consecutively to each other. In addition, the judge made the sentences consecutive to the composite nine-year term Bumpus had received in Fairbanks. The judge specifically provided that no parole would apply to the aggravated portions of Bumpus’ sentence.

DISCUSSION

On appeal, Bumpus contends that his composite sentence is excessive. He initially challenges the sentencing court’s findings that he is a worst offender and a dangerous offender. The finding that a defendant is a worst offender may properly be based on the defendant’s criminal history, the circumstances of the current offense, or both. Hintz v. State, 627 P.2d 207, 210 (Alaska 1981). Here, the court’s conclusion that Bumpus was a worst offender is amply supported by both Bum-pus’ criminal history, which includes three prior convictions for felonies, as well as by the number and seriousness of Bumpus’ current offenses. The court did not err in making its worst offender finding.

The sentencing court further characterized Bumpus as a dangerous offender. This characterization also seems to have been well-founded. Because Bumpus had previously been convicted of more than two felonies and had served a period of more than one year in prison, he would appear to qualify as a dangerous offender.1 See, e.g., Williams v. State, 759 P.2d 575, 577 (Alaska App.1988); Skrepich v. State, 740 P.2d 950, 955-56 (Alaska App.1987).

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Related

Smith v. State
187 P.3d 511 (Court of Appeals of Alaska, 2008)
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9 P.3d 301 (Court of Appeals of Alaska, 2000)
State v. Bumpus
820 P.2d 298 (Alaska Supreme Court, 1991)
Bumpus v. State
776 P.2d 329 (Court of Appeals of Alaska, 1989)

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Bluebook (online)
776 P.2d 329, 1989 Alas. App. LEXIS 50, 1989 WL 68196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bumpus-v-state-alaskactapp-1989.