Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Maguire v. State

Court of Appeals of Alaska

January 27, 2017

KEVIN PATRICK MAGUIRE, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, CR Third Judicial District, Anchorage, Trial Court No. 3AN-12-11692 Michael Spaan, Judge.

          Claire F. DeWitte, Assistant Public Advocate, and Richard Allen, Public Advocate, for the Appellant.

          Charles D. Agerter, Assistant Attorney General, Office of Special Prosecution (brief), and Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage (supplemental brief), and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, for the Alaska Public Defender Agency as amicus curiae.

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

          OPINION

          ALLARD, Judge

         Pursuant to a plea agreement, Kevin Patrick Maguire pleaded guilty to misdemeanor criminal contempt for nonpayment of child support.[1] The plea agreement specified that Maguire would receive a wholly suspended sentence with the amount of suspended time and the length of probation to be determined by the court. The sentencing court accepted the plea agreement and imposed a suspended sentence of 240 days and 5 years' probation. Maguire appeals, arguing that the 5-year term of probation is excessive.

         For the reasons explained here, we find no merit to this claim. We therefore affirm Maguire's sentence.

         Why we conclude that we have jurisdiction to hear this appeal

         The first question we must decide in this appeal is whether we have jurisdiction to hear it. Under AS 12.55.120(a) and Alaska Appellate Rule 215(a)(1), a defendant has no right to appeal a misdemeanor sentence of imprisonment as excessive unless the sentence exceeds 120 days to serve. The defendant is entitled, however, to file a petition for discretionary review to the Alaska Supreme Court so long as the term of imprisonment is unsuspended.[2]

         In the current case, Maguire received a fully suspended sentence and he acknowledges that he cannot appeal this suspended sentence as excessive under AS 12.55.120(a) and Appellate Rule 215(a)(1). But he argues that he is entitled to appeal his term of probation as excessive under our prior decision in Allen v. Anchorage[3]

         Almost ten years ago, in Allen, this Court declared (by a two-to-one majority) that the statutory bar against excessive sentence appeals involving misdemeanor sentences of less than 120 days to serve did not apply to "non-term-of-imprisonment sentence appeals (e.g., appeals challenging probation conditions, fines, forfeitures, and license revocations)."[4]

         Judge Mannheimer dissented from this holding.[5] In his dissent, Judge Mannheimer noted that this Court had been inconsistent in its approach to this question, and that the Court's only prior published decision on this issue, Haggren v. State, 829 P.2d 842, 845 (Alaska App. 1992), was directly contrary to the holding in Allen.[6]

         In recent years, we have issued unpublished decisions that are arguably inconsistent with Allen' s resolution of this jurisdictional question.[7] Given our own recent failure to adhere consistently to the rule in Allen, we invited the parties to this appeal, and the Alaska Public Defender Agency as amicus curiae, to submit briefing on whether Allen should be overturned in favor of the view adopted by the dissent in that case-the view that this Court has no jurisdiction to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.