Keyser v. State

856 P.2d 1170, 1993 Alas. App. LEXIS 33, 1993 WL 283527
CourtCourt of Appeals of Alaska
DecidedJuly 30, 1993
DocketA-4468
StatusPublished
Cited by2 cases

This text of 856 P.2d 1170 (Keyser 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
Keyser v. State, 856 P.2d 1170, 1993 Alas. App. LEXIS 33, 1993 WL 283527 (Ala. Ct. App. 1993).

Opinion

OPINION

BRYNER, Chief Judge.

In 1989, Carl R.T. Keyser, Jr., entered a plea of no contest to a charge of first-degree theft in violation of AS 11.46.120 (theft by deception of property valued at $25,000 or more). The offense is a class B felony, carrying a maximum term of ten years. AS 11.46.120(b); AS 12.55.125(d). Presumptive terms for second and subsequent felony offenders are four and six years. AS 12.55.125(d)(l)-(2). Keyser was a first felony offender and was not subject to a presumptive term. In accordance with a plea agreement between Keyser and the state, Superior Court Judge Thomas E. Schulz suspended the imposition of Key-ser’s sentence on condition that Keyser serve ninety days in jail, pay restitution of $17,354.67, and complete a seven-year period of probation.

Keyser completed his jail term and was released on probation in May of 1989. In February of 1991, the state petitioned to revoke Keyser’s probation. Over the next year the state filed several supplemental petitions. Ultimately, Keyser admitted the allegations of an amended and consolidated petition dated February 18, 1992. Following an evidentiary hearing, Judge Schulz revoked probation, rescinded the suspended imposition of sentence, and sentenced Key-ser to a maximum term of ten years. Key-ser appeals, contending that the sentence is excessive. We reverse.

KEYSER’S ORIGINAL OFFENSE .

In 1988, Keyser, relying on a fraudulent employment application, secured employment as the city manager for the village of Kake at an annual salary of $44,000. After Keyser had spent approximately two months in the position, Alaska State Troopers arrested him on a warrant from Kentucky, where he had been charged with theft by deception for obtaining $697 in connection with his fraudulent application for a position as city manager for the town of Pikesville. Keyser’s arrest on the Kentucky warrant led to the discovery that his application for the city manager position in Kake contained numerous false statements concerning his background and qualifications. By that time, Keyser had received a total of about $28,680 in moving costs, living expenses, salary, and other benefits from the village of Kake. As a result, he was charged with first-degree theft.

THE ORIGINAL PROCEEDINGS

1. The Plea Agreement

Keyser eventually entered into a plea bargain with the state, pursuant to which he would receive a seven-year suspended imposition of sentence in return for his plea of no contest. Under the terms of the bargain, the court would order Kaiser to pay restitution to the village of Kake and to the city of Pikesville, Kentucky, to write letters of apology to both cities, and to serve a seven-year period of probation. The parties apparently contemplated that, after sentencing, Keyser would move to Seattle, Washington, where he would begin *1172 his probationary term. According to the agreement, Keyser would be prohibited from securing any government employment with the exception of regular military service while on probation. 1

2. The Original Presentence Report

Before the superior court finally accepted Keyser’s negotiated no contest plea, it ordered a presentence report prepared. The report indicated that at the time of this offense, Keyser was thirty-four years old and was married, with four children. He had no prior felony convictions but had been convicted in 1987 of a misdemeanor perjury charge in Florida, for which he received one year of probation. In addition, in 1978, Keyser was convicted in Utah on a misdemeanor charge of issuing bad checks; he received a suspended imposition of sentence, and the conviction was later expunged from his record. The report revealed nothing about the circumstances surrounding the Florida or Utah misdemeanor convictions.

According to the presentence report, Keyser had served in the army for five years, receiving an honorable discharge as a first lieutenant in 1978. After that, Key-ser’s employment history consisted of sporadic jobs in various small towns, initially as a police officer or as police chief, but more recently as a city manager or administrator. Keyser’s presentence report questioned his qualifications for such work, however, noting that, although Keyser claimed to have made substantial progress toward a college degree in public administration at a correspondence school in Illinois, the school was apparently unaccredited and had recently been closed, so Key-ser's claim could not be verified; in addition, although Keyser had evidently participated in several months of police training in California, he had never been certified to work as a police officer.

Based on his investigation, the author of the presentence report recommended against the court’s acceptance of the plea agreement. Although noting that Keyser “is an intelligent, personable individual” and that “[h]e has been described as a sincere family man, who cares about his wife and children, and values their presence in his life,” the author emphasized the serious nature of Keyser’s offense, pointing out that Keyser was not a youthful offender, that he had been misrepresenting his qualifications to employers for at least three years, and that, by his own admission, he needed psychological counseling to address his problems. Given these factors, the author of the report believed a suspended imposition of sentence to be inappropriate and found no reason to treat Key-ser differently than other offenders convicted of first-degree theft.

More specifically, the report’s author sounded the following, prophetic warning against a suspended imposition of sentence that would restrict Keyser from government jobs and place him on probation in Seattle:

Mr. Keyser is going to have to obtain employment and pay back a sizeable amount of restitution. He is also responsible for the financial support of his wife and four young daughters. I do not believe it is appropriate to require Mr. Keyser to avoid all government jobs, but do believe it is appropriate to assure that he is both qualified and able to perform the duties of whatever job he does obtain. That can be done while he is on supervised probation by requiring him to report to his probation officer for approval of jobs before he accepts them. Mr. Keyser has a track record of being “found out” in communities where he has talked himself into employment that he is not qualified for, and then leaving town, sometimes travelling clear across the country. Without measures being taken to correct that behavior, Mr. Key-ser is likely to reoffend. However, by requiring him to remain in a community where he can be supervised by a probation officer, confer with his probation *1173 officer prior to accepting any employment position, and requiring that he participate in psychological counseling and furthering his employment eligibility through education and training, the predicament that Mr. Keyser finds himself in at this time need never reoccur.
The [Criminal] Rule 11 [plea] Agreement requires that Mr. Keyser not be employed in any government jobs, and that he be supervised for seven years.

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Bluebook (online)
856 P.2d 1170, 1993 Alas. App. LEXIS 33, 1993 WL 283527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keyser-v-state-alaskactapp-1993.