in determining whether a non-presumptive, first offense sentence exceeds the presumptive sentence applicable to a second offender, our primary focus is on the amount of unsuspended time to serve
How later courts described this case
- in determining whether a non-presumptive, first offense sentence exceeds the presumptive sentence applicable to a second offender, our primary focus is on the amount of unsuspended time to serve
- in determining whether a nonpre-sumptive first offense sentence exceeds the presumptive sentence for a second offender, our primary focus should be on the unsuspended portion of the sentence
- in applying the Austin rule, we look primarily to time actually imposed and give lesser consideration to suspended time
Written by the judges who cited it.
The opinion
OPINION
COATS, Judge.
Lazarus Tazruk was convicted in a jury trial of attempted sexual assault in the first degree, AS 11.41.410. He was sentenced by Judge Jay Hodges to eight years with five years suspended. He appeals this sentence as excessive. We affirm.
Tazruk is fifty-seven years old and has no prior felony convictions. He argues on appeal that his sentence exceeds the presumptive sentence which a second offender would receive.
Austin v. State,
627 P.2d 657 (Alaska App.1981). Attempted sexual assault in the first degree is a class B felony, and the presumptive sentence which a second offender would receive is four years. AS 11.41.410; AS 11.31.100(d)(2); AS 12.55.125(d)(1).
We conclude that a sentence of eight years with five suspended is not greater than the presumptive sentence of four years for purposes of applying the
Austin
rule. When we evaluate a sentence we consider the whole sentence including suspended time. However, in evaluating whether a sentence is in excess of the presumptive sentence which a second felony offender would receive, our primary focus should be on that portion of the sentence which imposes a period of incarceration. By that standard, the three years of imprisonment to which Tazruk is sentenced is less than the four years which a second felony offender would receive. In the event that the suspended portion of Tazruk’s sentence is later imposed, he would be entitled to bring a sentence appeal at that time. We conclude that Tazruk’s sentence does not violate the
Austin
rule.
We also conclude that Tazruk’s sentence is not clearly mistaken under the standards set forth in AS 12.55.005, which codifies the
Chaney
sentencing criteria.
1
The evidence indicates that Tazruk attacked his victim, C.K., with the intent to rape her. C.K. was cut and bruised in an apparently violent attack. The attack was apparently ended when some people came out from a nearby home and Tazruk ran away. There was testimony that Tazruk used a knife in the attack, although we note that the trial judge specifically did not resolve the dispute as to whether a knife was used. Given the nature of the offense, we find that Judge Hodges was not clearly mistaken in imposing the sentence of eight years with five years suspended.
The sentence is AFFIRMED.
1
.
State v. Chaney,
477 P.2d 441 (Alaska 1970).