State v. Brueggeman

24 P.3d 583, 2001 Alas. App. LEXIS 90, 2001 WL 470027
CourtCourt of Appeals of Alaska
DecidedMay 4, 2001
DocketA-7621
StatusPublished
Cited by2 cases

This text of 24 P.3d 583 (State v. Brueggeman) 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
State v. Brueggeman, 24 P.3d 583, 2001 Alas. App. LEXIS 90, 2001 WL 470027 (Ala. Ct. App. 2001).

Opinions

OPINION

STEWART, Judge.

This is a sentence appeal brought by the State. Aaron L. Brueggeman received a suspended imposition of sentence for the class B felony of perjury. The sentencing judge did not require Brueggeman to serve any time in jail as a condition of this sentence, although he did order Brueggeman to perform 500 hours of community work. The State contends that this sentence improperly fails to reflect the seriousness of Brueggeman's [584]*584crime-that it fails to satisfy the sentencing goals of deterrence and reaffirmation of societal values. We agree with the State, and we therefore disapprove the sentence.1

Facts of the case

In March 1996, a young woman gave birth to a daughter. Brueggeman was the father of this child. Initially, Brueggeman acknowledged the child as his, but he later developed doubts about his paternity and stopped supporting his child.

In May 1996, the mother of the child applied for public assistance. She identified Brueggeman as her child's father, and she assigned her child support rights to the State. In August 1996, the Child Support Enforcement Division (CSED) filed a paternity action against Brueggeman.

Brueggeman privately arranged for genetic testing at the Valley Phlebotomy Service in Wasilla. On October 28, 1996, he directed the mother and child to go there so that the service could obtain genetic samples from them. The next day, Brueggeman had his friend (and later co-defendant) David Hood go to Valley Phlebotomy and pose as Brueggeman. Hood identified himself as Brueggeman, presented the service with Brueggeman's Alaska State identification card, signed his name as Brueggeman, and provided a sample for paternity testing.

Not surprisingly, genetic testing of this sample excluded "Brueggeman" (ie, Hood) as the father of Brueggeman's child. Brueggeman filed the test results with the court and asked the court to dismiss the paternity case. But the State was not satisfied that Brueggeman was in fact the person who provided the sample, so the State asked the court to order another paternity test. Brueggeman opposed the motion and claimed that he was being harassed because he had already taken a paternity test.

Over Brueggeman's objection, the superior court granted the State's motion for another test. Brueggeman missed two scheduled appointments for this second test, the second on advice of counsel. Finally, the court granted the State's motion to compel Brueggeman to appear for testing.

While this litigation was proceeding, Brueggeman condoned and participated in a letter-writing campaign conducted by a woman who was a friend of his family. The aim of this campaign apparently was to convince various state legislators that the CSED was harassing an innocent citizen, so that these legislators would pressure the CSED and the Attorney General's Office to drop the paternity suit against Brueggeman. These letters contained language and assertions personally approved by Brueggeman. The letters accused the CSED of harassing Brueggeman by requesting a second paternity test. The letters also asserted that the child's mother was a promiscuous woman who had falsely accused Brueggeman of being the father of her child because she was poor and needed money.

Ultimately, Brueggeman (now represented by counsel) notified the court that he would submit to the additional paternity test under protest. However, Brueggeman once more conspired with Hood to defraud the court, the State, and the child's mother. On September 25, 1997, Hood appeared for the court-ordered test and onee again identified himself as Brueggeman. He presented Brueggeman's identification and signed his name as Brueggeman. Hood then provided a sample for genetic testing. And again, the genetic testing of Hood's body sample showed that "Brueggeman" (i.e., Hood) was not the father of Brueggeman's daughter.

This time, however, the people who administered the test took Hood's photograph and thumb print. When the State showed this photograph to the mother of the child, she identified the person in the photograph as Hood, not Brueggeman.

Meanwhile, Brueggeman moved for summary judgment in the paternity case based on the result of the second genetic test. The State opposed Brueggeman's motion, offering [585]*585an affidavit from the mother in which she identified Hood as the person in the photograph taken at the court-ordered test.

Rather than admitting his fraud, Bruegge-man answered with his own affidavit in which he falsely claimed that he had twice appeared and been tested, both at the original genetic test in October 1996 and at the second, court-ordered test in September 1997. To further bolster his position, Brueggeman induced Hood to sign a false supporting affidavit. In his supporting affidavit, Hood falsely claimed that he had never taken a paternity test and, more specifically, that he had never done so for Brueggeman.

In the face of these competing affidavits, the court ordered both Brueggeman and Hood to provide genetic samples and fingerprints. This third round of genetic testing confirmed that the genetic samples from the two prior tests could not have come from Brueggeman (and had probably come from Hood). The testing also showed that Brueggeman was the father of the child. Finally, the court-ordered fingerprinting showed that the thumb print taken at the time of the second test (September 1997) was Hood's.

Based on these facts, a grand jury indicted Brueggeman on one count of scheme to defraud,2 two counts of tampering with physical evidence,3 and four counts of perjury.4 The State also filed an information charging Brueggeman with attempted criminal nonsupport.5

Brueggeman ultimately reached a plea agreement with the State in which he pleaded no contest to one count of perjury and to attempted criminal non-support. The plea agreement called for open sentencing on the perjury charge and for a sentence of 90 days' imprisonment, all suspended, on the attempted criminal non-support charge. The State dismissed the other charges.

The sentencing

Perjury is a class B felony, punishable by a maximum term of 10 years' imprisonment and by a fine of up to $50,000.6 Because Brueggeman was a first felony offender, he was not subject to a presumptive term.7 However, his sentence was governed by the guidelines established by this court in State v. Jackson.8

In Jackson, this court reviewed sentencing decisions for first felony offenders convicted of class B felonies. Based on our review of past sentences, and relying on the rule we announced in Austin v. State9 (that a first felony offender should normally receive a more favorable sentence than the applicable presumptive term for a second felony offender 10), we declared in Jackson that a typical first felony offender committing a typical to moderately aggravated class B felony should receive between 1 year and 4 years to serve.11 Sentences of between 90 days and 1 year to serve should be imposed only in a case "that is less serious than the norm for the offense, either because it involves mitigated conduct or [because it involves] an offender whose background indicates particularly favorable prospects for rehabilitation." 12

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Related

Soundara v. State
107 P.3d 290 (Court of Appeals of Alaska, 2005)
State v. Brueggeman
24 P.3d 583 (Court of Appeals of Alaska, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
24 P.3d 583, 2001 Alas. App. LEXIS 90, 2001 WL 470027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brueggeman-alaskactapp-2001.