Gardner v. State, 120518 AKCA, A-12217

Docket Nº:A-12217
Opinion Judge:SUDDOCK, JUDGE.
Party Name:MICHAEL EMILIO GARDNER, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.
Case Date:December 05, 2018
Court:Court of Appeals of Alaska
 
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MICHAEL EMILIO GARDNER, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12217

Court of Appeals of Alaska

December 5, 2018

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court No. 3AN-12-13653 CR, Third Judicial District, Anchorage, Jack W. Smith, Judge.

Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

MEMORANDUM OPINION

SUDDOCK, JUDGE.

Michael Emilio Gardner, age sixteen, was charged with two counts of first-degree sexual abuse of his five-year-old half-sister K.M. Gardner also admitted that he abused his three-year-old half-sister K.K., but the State did not charge Gardner with this abuse.

Pursuant to a plea agreement, Gardner pleaded guilty to one consolidated count of second-degree sexual abuse of a minor for abusing K.M. The plea agreement called for open sentencing, and the superior court ultimately sentenced Gardner to 11 years' imprisonment with 5 years suspended (6 years to serve).

Before Gardner was sentenced, his attorney asked the sentencing judge to refer Gardner's case to the statewide three-judge sentencing panel. The judge denied this request, and Gardner now appeals the judge's decision. For the reasons we explain here, we affirm the judge's decision not to refer Gardner's case to the three-judge panel.

Gardner also appeals several conditions of his probation. He did not object to these conditions during his sentencing, so he must show plain error. We find that some of the conditions are plainly erroneous, and we vacate them. We also direct the superior court to reconsider two of Gardner's conditions of probation.

Background facts and proceedings

On December 24, 2012, Gardner's grandmother reported to the Anchorage police that K.M. and her younger sister K.K. had told her that Gardner touched them sexually. The girls were Gardner's half-sisters. At the time alleged, Gardner was sixteen years old, K.M. was five, and K.K. was three.

Gardner at first denied molesting the children, but after the police informed him of what the girls had said during their interviews, Gardner admitted that he had touched K.K. inappropriately, and that he had touched K.M. on her buttocks and vagina, and had induced her to fellate him.

Pursuant to a plea agreement, Gardner pleaded guilty to one consolidated count of second-degree sexual abuse of a minor for his conduct with K.M.1

Gardner faced a presumptive sentencing range of 5 to 15 years' imprisonment for this crime, but the plea agreement allowed Gardner to ask the sentencing judge to refer Gardner's case to the statewide three-judge sentencing panel - a panel that is authorized to impose sentences outside the applicable presumptive range.2

The terms of the plea agreement required Gardner to admit all the facts alleged in the original charging document. Thus, Gardner admitted that he had repeatedly sexually abused K.M. over a period of time, and that this sexual abuse included at least two acts of sexual penetration. Further, Gardner did not dispute that he had also engaged in repeated acts of sexual contact with his other half-sister, K.K.

At sentencing, Gardner's attorney presented two witnesses in an attempt to support the arguments that Gardner had exceptional prospects for rehabilitation, and also that it would be manifestly unjust to sentence Gardner within the applicable 5- to 15-year presumptive range. These witnesses were Dr. Mark Zelig, a forensic psychologist specializing in juvenile sex offenders, and Katrina Curry, the fiancée of Gardner's father.

Curry testified that K.M. had seen a counselor for a year, and that she no longer required treatment. Curry stated that K.M. and K.K. missed Gardner and had written him letters.

Dr...

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