Smith v. State, A-13577

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD JUDGE
PartiesKEEN SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Docket NumberA-13577
Decision Date10 August 2022

KEEN SMITH, Appellant,


No. A-13577

Court of Appeals of Alaska

August 10, 2022

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-19-07062 CR Peter R. Ramgren, Judge.

Jay A. Hochberg, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.



Keen Smith was convicted, following a jury trial, of one count of fourth-degree criminal mischief and two counts of fourth-degree assault for damaging property at an accounting firm and placing two people who worked there in fear of imminent


physical injury.[1] At sentencing, the superior court imposed the maximum sentence (365 days) on each assault conviction and ran both sentences consecutively. The court then imposed 1 additional year - entirely suspended - on the criminal mischief conviction, for a composite sentence of 3 years with 1 year suspended (2 years to serve). The court also imposed $21,743.75 in restitution.

Smith now appeals his sentence and the restitution award.[2]

Smith argues first that his sentence is excessive and that the superior court erred in multiple ways during his sentencing, including: (1) imposing maximum sentences on the assault convictions despite declining to find Smith a worst offender;[3](2) imposing maximum sentences in a misdemeanor case based on a statutory aggravated that applies to felony presumptive sentencing;[4] (3) imposing a composite term of imprisonment that was greater than the maximum sentence for the most serious offense without providing any justification for doing so in violation of the Neal-Mutschler rule;[5]


and (4) engaging in inappropriate stacking with regard to the assault convictions.[6] Smith also points out that the judgment erroneously states that he was to be placed on probation for 5 years as part of his sentence for the assault convictions even though he did not receive any suspended time on either of those convictions.

In response, the State concedes that the superior court made multiple errors, including imposing a maximum sentence without a worst offender finding, misusing a felony statutory aggravator in a misdemeanor case, and failing to make the necessary findings under Neal-Mutschler.

When the State concedes error in a criminal case, we are required to independently review the trial court proceedings to ensure that the concession of error is supported by the record and has legal foundation.[7] We have independently reviewed the record in this case, and we agree that the State's concessions of error are well-founded and that a remand for resentencing is required.[8]


Smith also appeals the restitution order in his case, asserting that the superior court erroneously ordered restitution for losses that were unsupported or not proximately caused by his conduct. Smith also argues that the superior court failed to make the requisite findings to support its restitution award. The State again concedes error.

Initially, the State requested $1,500 in restitution, which it asserted represented the amount that the accounting firm had paid to repair the damage caused by Smith. At sentencing, however, the superior court commented that the requested restitution amount did not appear to reflect all of the losses the accounting firm experienced as a result of Smith's actions. The superior court therefore deferred the issue of restitution until the State had a chance to consult further with the victims.

The State returned with a request for $25,546.87 in restitution, which included $4,625 in repairs and security enhancements and $20,343.75 in alleged lost income and profits.[9]

At the restitution hearing, Smith's attorney agreed that the accounting firm was entitled to restitution for the damage caused by Smith, but he argued that the accounting firm was not entitled to restitution for the enhanced security improvements because they were not proximately caused by Smith's actions.[10] The superior court


agreed and reduced the $4,625 restitution requested for repairs and security enhancements to $ 1,400, the cost of the repairs without the security enhancements. The court issued a written order explaining its reasoning.[11]

Smith's attorney also challenged the accounting firm's restitution request for $20,343.75 in alleged lost income and profits. The defense attorney argued that the accounting firm had failed to support its claim and had failed to show that mitigation efforts (such as allowing employees to work remotely) would not have been effective. The attorney also challenged the lost income and profits related to the time the employees spent in court proceedings. The court imposed the full $20,343.75 in alleged lost income and profits.

On appeal, Smith renews his challenges to the $20,343.75 restitution award for lost income and profits. Smith points out that the testimony was "muddled" regarding which days employees missed work and why, and the superior court did not make any findings regarding Smith's mitigation arguments.[12] Smith also argues that it is against public policy to award the accounting firm restitution for lost income related


to the time its employees spent in court proceedings. Smith points out that the accounting firm's owner decided to attend parts of the trial even though she was not subpoenaed to testify. And, according to Smith, for the employees that were subpoenaed, compensation for court time is limited to the witness fees provided under Alaska Administrative Rule 7(a).[13] The State agrees with this position on appeal, although it is contrary to the position the State took in the superior court proceedings.

This Court has not previously been asked to rule on whether and under what circumstances a victim can receive restitution for time spent in court proceedings. This is therefore an open question under Alaska law. We note that many...

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