Wentz v. State

777 P.2d 213, 1989 Alas. App. LEXIS 56, 1989 WL 78086
CourtCourt of Appeals of Alaska
DecidedJuly 14, 1989
DocketA-2593
StatusPublished
Cited by5 cases

This text of 777 P.2d 213 (Wentz 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
Wentz v. State, 777 P.2d 213, 1989 Alas. App. LEXIS 56, 1989 WL 78086 (Ala. Ct. App. 1989).

Opinion

OPINION

BRYNER, Chief Judge.

Michael Alan Wentz was convicted after pleading no contest to a single count of assault in the first degree, in violation of AS 11.41.200(a)(1) (recklessly causing serious physical injury by means of a dangerous instrument). The offense is a class A felony, punishable by a maximum term of twenty years’ imprisonment. AS 12.55.-125(c). The presumptive term for a first felony offender is five years’ imprisonment. AS 12.55.125(c)(1); New v. State, 714 P.2d 378 (Alaska App.1986). After finding two aggravating factors applicable to the case, Superior Court Judge Karl S. Johnstone sentenced Wentz, a first felony offender, to an adjusted presumptive term of fifteen years with three years suspended. Wentz appeals, contending that the sentence is excessive. We reverse.

Wentz was convicted for injuries that he inflicted on his wife, F.S. Wentz apparently became angry at F.S. because he believed that she had had sexual intercourse with another man. Wentz was intoxicated and severely beat F.S., breaking her skull and causing other serious physical injuries. Wentz did not secure medical assistance for F.S. until approximately seven hours after the beating.

As a result of the assault, F.S. required protracted hospitalization and suffered permanent brain damage. The injuries to F.S. were particularly dangerous because she suffered from a serious heart condition that made her vulnerable to infection. F.S. had been scheduled to undergo open heart surgery in January of 1988 to replace a faulty heart valve. The surgery was postponed as a result of her injuries. In addition to her heart condition, F.S. was deaf and mute.

At the time of Wentz’ sentencing, approximately six months after the assault, F.S. was still confined to a nursing home. Although she had made some progress in recovering from her injuries, F.S. still had no definite prospect of recovering sufficiently to allow her to be discharged in the immediate future.

Wentz was thirty-two years old when he committed the offense. Although he had never been convicted of a felony, Wentz had twelve prior misdemeanor convictions. Apparently, three of the convictions were for assaultive crimes, one of which was a misdemeanor assault on F.S. All of Wentz’ prior offenses appear to have been alcohol related, reflecting his long-standing problem with alcohol abuse. On four prior occasions, Wentz had completed alcohol rehabilitation programs. He had also participated in and completed the Male Awareness program. Despite his numerous misdemeanor convictions, however, Wentz had *215 never served any significant period of time in jail. He was on informal probation for his most recent misdemeanor conviction, a fourth-degree assault, when he committed the current offense.

A psychiatric evaluation prepared for use in sentencing confirmed that Wentz has a serious problem with alcohol abuse, but found no evidence of any serious personality disorder. The report noted that Wentz appeared to be remorseful and was determined to address his problem with alcoholism. However, the report concluded that Wentz’ prognosis for successfully dealing with alcoholism was difficult to predict.

Prior to sentencing, Judge Johnstone found two aggravating factors applicable to Wentz’ case: first, that Wentz committed the offense upon his spouse, AS 12.55.-155(c)(18); second, that Wentz committed the offense knowing that F.S. was particularly vulnerable by virtue of her heart condition and deafness, AS 12.55.155(c)(5). Judge Johnstone rejected one aggravating factor proposed by the state: that Wentz’ conduct was among the most serious within the definition of the offense, AS 12.55.-155(c)(10). The judge concluded that F.S.’s injuries were not sufficient to establish this aggravating factor by clear and convincing evidence.

In imposing sentence, Judge Johnstone relied on Wentz’ prior misdemeanor record and his continued problems with alcohol abuse in concluding that Wentz was a dangerous offender and that his prospects for rehabilitation were poor. Based on this conclusion and upon the seriousness of Wentz’ current case, Judge Johnstone expressed the view that Wentz was a worst offender and that a sentence significantly exceeding the five-year presumptive term was necessary for the protection of the community. Accordingly, the judge sentenced Wentz to a term of fifteen years with three years suspended.

On appeal, Wentz’ initial contention is that Judge Johnstone erred in finding, as an aggravating factor, that F.S. was particularly vulnerable. We are satisfied, however, that the sentencing court’s reliance on this aggravating factor was not clearly erroneous. There is substantial evidence in the sentencing record to support a finding that, because of her heart condition and deafness, F.S. was particularly vulnerable and incapable of resisting Wentz’ assault.

Wentz’ second contention is that his unsuspended term of twelve years to serve is excessive. We conclude that this argument has merit.

In our prior decisions, we have observed that the primary objectives of Alaska’s presumptive sentencing statutes are uniformity and the elimination of disparity in sentencing. See, e.g., DeGross v. State, 768 P.2d 134 (Alaska App.1989); Juneby v. State, 641 P.2d 823 (Alaska App.1982), modified in part, 665 P.2d 30 (Alaska App.1983). In recognition of these objectives, we have consistently urged moderation in the adjustment of presumptive terms:

[Ujnless a measured and restrained approach is taken to the adjustment of presumptive sentences for both aggravating and mitigating factors, then the prospect of attaining the statutory goal of uniform treatment for similarly situated offenders would quickly be eroded, the potential for irrational disparity in sentencing would threaten to become reality, and the revised code’s carefully fashioned system of escalating penalties for repeat offenders would be rendered utterly ineffective.

Juneby v. State, 641 P.2d at 833.

Wentz was subject to a five-year presumptive term. See AS 12.55.125(c)(1); New, 714 P.2d at 384. Based on two aggravating factors, the sentencing court imposed an adjusted presumptive term of fifteen years with three years suspended, a term substantially exceeding not only the applicable five-year presumptive term, but also the ten-year presumptive term that would have applied had Wentz previously been convicted of another felony.

The significant enhancement of Wentz’ presumptive term is problematic in light of our past decisions dealing with first offenders convicted of class A and class B felonies. In Holtzheimer v. State, 766 P.2d *216 1177, 1180 (Alaska App.1989) (citations omitted), we said:

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Related

Phelps v. State
236 P.3d 381 (Court of Appeals of Alaska, 2010)
Williams v. State
859 P.2d 720 (Court of Appeals of Alaska, 1993)
State v. Wentz
805 P.2d 962 (Alaska Supreme Court, 1991)

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Bluebook (online)
777 P.2d 213, 1989 Alas. App. LEXIS 56, 1989 WL 78086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wentz-v-state-alaskactapp-1989.