Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981). · Go Syfert
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Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981). Cases Citing This Book View Copy Cite
269 citation events (43 in the last 25 years) across 2 distinct courts.
Strongest positive: Smith v. State (alaskactapp, 2008-07-03)
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discussed Cited as authority (rule) Smith v. State
Alaska Ct. App. · 2008 · confidence medium
Id. at 1301-02 . *528 (See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), where we held that a defendant convicted of a first felony offense for which no presumptive term of imprisonment is specified should ordinarily receive a sentence more favorable than the presumptive term enacted by the legislature for a second felony offender convicted of the same offense.
discussed Cited as authority (rule) Oyoumick v. State
Alaska Ct. App. · 2008 · confidence medium
Because no presumptive term was prescribed for first felony offenders convicted of class C felonies under the pre-2005 Alaska sentencing law, Oyoumick's sentencing was governed by former AS 12.55.125(k)(2)-the legislature's codification of the first-offender sentencing rule that was first announced by this Court in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Surrells v. State
Alaska Ct. App. · 2006 · confidence medium
In Austin , this Court recognized that there would be instances where a first felony offender should properly receive a more severe sentence than a second felony offender convicted of the same crime. “[I]t is ... clear that the legislature did not intend ... that a first offender could never receive more time to serve than the presumptive [term] for a second offender, since the statute[s] easily could have been written to accomplish that result.” Austin, 627 P.2d at 658 (emphasis added).
discussed Cited as authority (rule) Dayton v. State
Alaska Ct. App. · 2005 · confidence medium
This case requires us to resolve the slight inconsistency between the "Austin" rule-the sentencing rule first established by this Court in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981)-and the later legislative codification of that rule in former AS 12.55.125(k)(2).
discussed Cited as authority (rule) Custer v. State
Alaska Ct. App. · 2004 · confidence medium
Given Custer’s two underlying felony offenses, his lengthy list of other offenses, and his repeated failures to cope with his alcohol problem during his felony probation, Judge Saveli was not clearly mistaken when he imposed half of Custer’s remaining suspended time — 3 years, 5 months. *551 Conclusion The sentencing decision of the superior court is AFFIRMED. 1 . 627 P.2d 657, 657-58 (Alaska App. 1981). 2 .
discussed Cited as authority (rule) Copeland v. State
Alaska Ct. App. · 2003 · confidence medium
Under Jackson, a typical offender who has committed a typical to moderately aggravated offense should receive an unsuspended term of 1 year or more. 15 " The upper limit in this category is 4 years' imprisonment, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981)" 16 For an offense that is exceptionally aggravated-i.e., one that involves the existence of significant statutorily specified aggravating factors or other extraordinarily aggravated cireum-stances-a judge may impose up to 6 years to serve. 17 For the nine counts of sexual abuse, Judge Murphy sentenced …
discussed Cited as authority (rule) Tuttle v. State (2×)
Alaska Ct. App. · 2003 · confidence medium
Our decision in Buoy was a follow-up to our decisions in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), and Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983).
examined Cited as authority (rule) Beasley v. State (3×) also: Cited "see"
Alaska Ct. App. · 2002 · confidence medium
NOTES [1] AS 11.41.220(a), (b). [2] See Wylie v. State, 797 P.2d 651, 663 (Alaska App.1990). [3] See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) (A first felony offender should ordinarily receive a more favorable sentence than the presumptive term for a second felony offender convicted of the same class of crime). [4] AS 12.55.125(e)(2). [5] See Wylie v. State, 797 P.2d 651, 663 (Alaska App.1990). [6] Millman v. State, 841 P.2d 190, 194 (Alaska App.1992). [7] See Progressive Ins.
cited Cited as authority (rule) Pitka v. State
Alaska Ct. App. · 2001 · confidence medium
AS 11.71.040(d). 10 . 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Brown v. State (2×) also: Cited "see"
Alaska Ct. App. · 2000 · confidence medium
AS 12.55.125(e), (k); Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981). 5 .
discussed Cited as authority (rule) Pickard v. State
Alaska Ct. App. · 1998 · confidence medium
AS 12.55.125(e). 5 .See AS 12.55.125(k); Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App.1983); Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) (in the absence of statutory aggravating factors or extraordinary circumstances, a first felony offender must receive a sentence more favorable than the presumptive term established by the legislature for a second felony offender convicted of the same crime). 6 . 537 P.2d 1117 (Alaska 1975). 7 .
discussed Cited as authority (rule) Rozkydal v. State
Alaska Ct. App. · 1997 · confidence medium
When a court sentences a defendant for a C felony, this 2-year presumptive term is the dividing line under Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) — the case in which this court held that a first felony offender’s sentence should be more favorable than the presumptive term established for second felony offenders unless the State proves aggravating factors under AS 12.55.155(c) or extraordinary circumstances under AS 12.55.165.
discussed Cited as authority (rule) Sorenson v. State (2×)
Alaska Ct. App. · 1997 · confidence medium
Austin requires that a first offender ordinarily “should receive a more favorable sentence than the presumptive term for a second offender.” 627 P.2d at 657-58; see also Andrew v. State, 835 P.2d 1251,1252-53 (Alaska App.1992).
discussed Cited as authority (rule) Reese v. State
Alaska Ct. App. · 1996 · confidence medium
In his brief to this court, Reese argues that Judge Souter was constrained to sentence him to less than 4 years’ imprisonment — the normal ceiling under Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) — unless the judge found by “clear and convincing evidence” that a more severe sentence was necessary.
discussed Cited as authority (rule) Splain v. State
Alaska Ct. App. · 1996 · confidence medium
Splain argues that, for this reason, the composite sentence violates Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) (holding that a first offender should normally receive a sentence more favorable than the presumptive term for a second felony offender).
cited Cited as authority (rule) Cornwall v. State
Alaska Ct. App. · 1995 · confidence medium
See Wylie v. State, 797 P.2d 651, 662 (Alaska App.1990); Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Espinoza v. State
Alaska Ct. App. · 1995 · confidence medium
Citing Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), Espinoza argued that, absent a formal finding of statutory aggravating factors or extraordinary circumstances, he was entitled to receive a more favorable sentence than the two-year presumptive term specified for a second class C felony offender.
discussed Cited as authority (rule) Turpin v. State
Alaska Ct. App. · 1995 · confidence medium
Under this court’s decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), Turpin was entitled to receive a sentence more favorable than the 4-year presumptive term enacted by the legislature for *1132 second-felony offenders convicted of the same offense, see AS 12.55.125(d)(1), unless the State proved that his ease was exceptional.
cited Cited as authority (rule) Nagasiak v. State
Alaska Ct. App. · 1995 · confidence medium
See Wylie v. State, 797 P.2d 651, 662 (Alaska App.1990); Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981).
cited Cited as authority (rule) Carroll v. State
Alaska Ct. App. · 1993 · confidence medium
Austin v. State, 627 P.2d 657, 657-58 (Alaska App.l98l).
discussed Cited as authority (rule) Lewis v. State (2×)
Alaska Ct. App. · 1993 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we held that “[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.” We indicated that this rule should be deviated from only in exceptional cases.
cited Cited as authority (rule) Sirilo v. State
Alaska Ct. App. · 1992 · confidence medium
Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Andrew v. State (2×)
Alaska Ct. App. · 1992 · confidence medium
This sentence appeal requires us to consider the extent to which the rule of Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), applies when a first felony offender is sentenced for a probation violation that has been proven by a mere preponderance of the evidence, and not by clear and convincing evidence.
discussed Cited as authority (rule) Looney v. State
Alaska Ct. App. · 1992 · confidence medium
Arguing that his sentence for first-degree assault is too severe, Looney first contends that his sentence violates the rule announced in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), that first felony offenders should normally serve a lesser term of imprisonment than the presumptive term specified for second felony offenders.
cited Cited as authority (rule) Buoy v. State
Alaska Ct. App. · 1991 · confidence medium
This sentence appeal requires us to determine what standard of proof applies to the resolution of factual issues arising under the rule in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) State v. Wentz (2×)
Alaska · 1991 · confidence medium
Accordingly, the ten-year rule applied by the court of appeals in the instant case is disapproved. [5] In so ruling, we do not mean to suggest that the court of appeals may not adopt any standards in order to guide the trial courts in the exercise of their discretion in sentencing. [6] On the contrary, in Karr v. *967 State, 686 P.2d 1192, 1195 (Alaska 1984), we applied, without disapproval, the court of appeals' longstanding " Austin rule," which provides that "[n]ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender." Austin v. …
discussed Cited as authority (rule) In the Disciplinary Matter Involving West (2×)
Alaska · 1991 · confidence medium
Normally, however, "a first offender should receive a more favorable sentence than the presumptive sentence for a second offender." Austin v. State, 627 P.2d 657, 658 (Alaska App. 1981).
discussed Cited as authority (rule) Vasques-Villegas v. State
Alaska Ct. App. · 1990 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we held that first felony offenders should normally receive a sentence more favorable than the presumptive term for a second offender convicted of the same crime.
cited Cited as authority (rule) Kriner v. State
Alaska Ct. App. · 1990 · confidence medium
Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Major v. State
Alaska Ct. App. · 1990 · confidence medium
In contrast, the prosecution urged the court to impose a sentence exceeding the four-year Austin limit, see Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), arguing that Major’s case was aggravated because of the length of time during which she had been selling drugs, the fact that she did so for commercial gain and as her primary means of support, and the fact that she employed several other people in her illegal enterprise.
discussed Cited as authority (rule) Marzak v. State
Alaska Ct. App. · 1990 · confidence medium
Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981) In Pruett v. State, 742 P.2d 257, 264 (Alaska App.1987) (citations omitted), we stated: Sentences of ten years or more for conduct equivalent in seriousness to class A felonies under current law have generally been based on isolation as a goal of sentencing and have been reserved for those with a proven record of recidivism, or those whose conduct involved premeditated attempts to kill or seriously injure.
discussed Cited as authority (rule) Wylie v. State
Alaska Ct. App. · 1990 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we held that ordinarily a first felony offender convicted of an offense should receive a more favorable sentence than the presumptive term for a second felony offender.
cited Cited as authority (rule) Davis v. State
Alaska Ct. App. · 1990 · confidence medium
The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
cited Cited as authority (rule) Osterback v. State
Alaska Ct. App. · 1990 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated: Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.
cited Cited as authority (rule) Gantner v. State
Alaska Ct. App. · 1990 · confidence medium
Gantner contends that under Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), his sentence should not have exceeded two years of imprisonment.
discussed Cited as authority (rule) Chrisman v. State
Alaska Ct. App. · 1990 · confidence medium
She notes that under Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), a sentence more favorable than the two-year presumptive term for a second felony offender would normally be required in the absence of substantial aggravating factors or extraordinary circumstances.
cited Cited as authority (rule) Hayes v. State
Alaska Ct. App. · 1990 · confidence medium
Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
cited Cited as authority (rule) Weiss v. State
Alaska Ct. App. · 1989 · confidence medium
The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
cited Cited as authority (rule) State v. Clark
Alaska Ct. App. · 1989 · confidence medium
The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) Brogdon v. State
Alaska Ct. App. · 1989 · confidence medium
The three-year unsuspended portion of the sentence is well below the presumptive term for a second felony offender, and so does not violate the rule of Austin v. State, 627 P.2d 657, 658 (Alaska App.1981).
cited Cited as authority (rule) Kirlin v. State
Alaska Ct. App. · 1989 · confidence medium
Austin v. State, 627 P.2d 657, 658 (Alaska *1253 App.1981).
discussed Cited as authority (rule) Charles v. State
Alaska Ct. App. · 1989 · confidence medium
In arguing that his sentence is excessive, Charles points to Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), where this court stated that, “Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.
cited Cited as authority (rule) Geer v. State
Alaska Ct. App. · 1989 · confidence medium
The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
discussed Cited as authority (rule) State v. Jackson
Alaska Ct. App. · 1989 · confidence medium
A typical offender committing a typical or moderately aggravated offense should receive an unsuspended term of a year or more to serve. 4 The upper limit in such cases should be four years, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).
cited Cited as authority (rule) Lewis v. State
Alaska Ct. App. · 1989 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated: “Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.
discussed Cited as authority (rule) Smith v. State
Alaska Ct. App. · 1989 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we held that a first felony offender should ordinarily receive a sentence more favorable than the presumptive term for a second felony offender convicted of a like class of offense.
discussed Cited as authority (rule) Sandelin v. State
Alaska Ct. App. · 1989 · confidence medium
Sandelin cites Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), where we stated: Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.
discussed Cited as authority (rule) Luepke v. State
Alaska Ct. App. · 1988 · confidence medium
Leuch v. State, 633 P.2d 1006 , 1013-14 & n. 22 (Alaska 1981). 1 In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we considered an aggravated case for which probation, without incarceration, would be inappropriate.
cited Cited as authority (rule) Lawrence v. State
Alaska Ct. App. · 1988 · confidence medium
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated, “Normally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender.
cited Cited as authority (rule) Jansen v. State
Alaska Ct. App. · 1988 · confidence medium
Under Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), a first offender should usually receive a more favorable sentence than the presumptive term reserved for a second felony offender.
Evans AUSTIN, Appellant,
v.
STATE of Alaska, Appellee
5341.
Court of Appeals of Alaska.
May 7, 1981.
627 P.2d 657
Michael O’Brien, Asst. Public Defender, Juneau, Brian Shortell, Public Defender, Anchorage, for appellant., Michael J. Stark, Asst. Atty. Gen., and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Bryner, Coats, Singleton.
Cited by 191 opinions  |  Published

OPINION

PER CURIAM.

Evans Austin pled guilty to a charge of criminal mischief in the second degree in violation of AS 11.46.482(a)(4), [1] a class C felony. He was charged with unlawfully taking a car and causing damage to it in excess of $500. He was sentenced to serve three years and has appealed that sentence to this court.

Austin argues that since this conviction was his first felony offense, that his sentence was excessive because it was greater than the presumptive sentence for a person who had a prior felony. [2] Normally a1 first offender should receive a more favorable sentence than the presumptive sen[*658] tence for a second offender. It is clear this rule should be violated only in an exceptional case. However, it is also clear that the legislature did not intend to say that a first offender could never receive more time to serve than the presumptive sentence for a second offender, since the statute easily could have been written to accomplish that result.

We have concluded Austin’s case is one of those exceptional cases where a sentence for a first felony offender can exceed the presumptive sentence for a second offender. The most important factor which supports the sentence which was imposed is the extensive juvenile record of the defendant. Austin was only eighteen at the time of this incident and had not been convicted of a felony as an adult, but he had a long juvenile record which started in 1968 when he was seven years old. The presentence report outlines constant and numerous offenses and probation violations. [3] Also, the report, in its evaluation of Austin, was concerned with the “almost continuous” nature in which offenses were committed. [4] Many of these charges would have been felonies if the defendant had been an adult at the time of the offense.

The circumstances of the offense of unlawfully taking the car were also aggravated. Austin was driving the stolen car when a police officer in a police car attempted to stop him. He accelerated, trying to elude the officer. While attempting to turn a corner he crashed into a parked car. He did considerable damage to three vehicles, including the stolen car. After the collision Austin got out of the car and ran away from the scene on foot.

Given the aggravated nature of the offense and the long juvenile record of the defendant, we conclude the sentence imposed was not clearly mistaken. [5]

The decision of the superior court is therefore AFFIRMED.

1

. AS 11.46.482(a)(4) provides as follows:

(a) A person commits the crime of criminal mischief in the second degree if, having no right to do so or any reasonable ground to believe he has such a right,
(4) he drives, tows away, or takes the propelled vehicle of another and damages the vehicle in an amount of $500 or more or causes the owner to incur reasonable expenses of $500 or more as a result of the loss of the use of the vehicle.
2

. AS 12.55.125(e) provides as follows:

(e) A defendant convicted of a class C felony may be sentenced to a definite term of imprisonment of not more than five years, and shall be sentenced to the following presump[*658] tive terms, subject to adjustment as provided in AS 12.55.155-12.55.175:
(1) if the offense is a second felony conviction, two years;
(2) if the offense is a third felony conviction, three years.
3

.Austin’s record is so extensive and involves so many offenses that it is difficult to list them all. According to the presentence report, his record includes several burglaries and theft offenses. Significantly, Austin’s record includes five different incidents of joyriding. Austin has been placed in various juvenile institutions and programs as a result of his juvenile offenses. Upon release, his pattern of behavior has been to commit additional offenses. The record also shows Austin was convicted on a charge of criminal trespass in the second degree while he was released pending sentencing on the current charge.

4

. AS 12.55.015(b)(3) provides:

(b) The court, in exercising sentencing discretion as provided in this chapter, shall impose a sentence involving imprisonment when ...
(3)sentences of lesser severity have been repeatedly imposed for substantially similar offenses in the past and have proven ineffective in deterring the defendant from further criminal conduct.
5

. McClain v. State, 519 P.2d 811 (Alaska 1974).