Koteles v. State , 1983 Alas. App. LEXIS 295 ( 1983 )

OPINION

COATS, Judge.

James Koteles entered a guilty plea to the offense of second-degree burglary, AS 11.46.310(a). Koteles had prior felony convictions for robbery in 1973 and burglary in 1977 which subjected him to presumptive sentencing as a third-felony offender. AS 12.55.145. Koteles was sentenced to the three-year presumptive sentence for a third-felony offender.

On appeal Koteles argues that the presumptive sentencing provisions unduly restrict judicial discretion because they prevent the court from giving less than the presumptive sentence unless the court finds statutory mitigating factors under AS 12.-55.155 or extraordinary circumstances under AS 12.55.165. He contends that this restriction violates the separation of powers doctrine and article I, § 12 of the Alaska Constitution.¹ In particular, Koteles objects that AS 12.55.155(g) prevented the court from considering as a mitigating factor his problems with alcohol abuse as they related to his rehabilitation.² We do not find that the presumptive sentencing provisions which were applied in Koteles’ sentencing violated article I, § 12 or infringed upon the separation of powers. We decided these issues in Wright v. State, 656 P.2d 1226 (Alaska App., 1983), and Nell v. State, 642 P.2d 1361, 1367-70 (Alaska App.1982).

Koteles also argues that the legislature acted irrationally in discriminating between first offenders and repeat offenders for purposes of presumptive sentencing. Koteles concludes that this irrational discrimination violates his right to equal protection under the state and federal constitutions ³ and deprives him of substantive due process. He relies on Griffith v. State, 641 P.2d 228 (Alaska App.1982). We reject this frivolous argument.

Koteles raises three objections to his sentencing. First, he contends that the trial court deprived him of his right to allocution. The record reflects that Koteles testified at the hearing. The court heard his testimony, the arguments of his counsel and then imposed sentence. The trial judge belatedly realized that he had failed to give Koteles a right of allocution. He then offered Koteles the right, candidly pointing out that Koteles was subject to presumptive sentencing and that there was nothing that Koteles could say that could affect the outcome. Koteles then waived allocution, mentioning that had the court given him timely allocution, he would have had something to say in addition to his former testimony. The trial court then offered to re-cuse and allow sentencing to proceed before another judge. Koteles declined this offer. The judge then vacated the sentence and postponed sentencing to a later time. At the later hearing Koteles made allocution and the court reimposed the same sentence. Koteles contends that this procedure denied him effective allocution. He asks that the sentence be vacated and remanded, apparently to the same judge, for resentencing. We decline to order this pointless operation. When through oversight the trial court denied Koteles allocution, the court had few options: it could hear allocution at that time, which Koteles declined; it could vacate the sentence and continue sentencing to a future time and hear allocution at that time; or it could apologize and ignore allo-cution. The trial court chose the second alternative, which seems reasonable under the circumstances. Koteles was not prejudiced, since he was subject to presumptive sentencing and the court had rejected his proposed mitigating factors prior to the time that it would have heard allocution. We note that the court also offered to re-cuse and permit sentencing to proceed before another judge, but Koteles rejected this option. Under the circumstances, we find no error.

Finally, Koteles argues that the court erred in failing to find two mitigating factors: that the conduct involved in the offense was among the least serious included in the definition of the offense, AS 12.-55.155(d)(9); and, the defendant’s crimes were insignificant and inconsistent with the imposition of a substantial period of imprisonment, AS 12.55.155(d)(13). The record reflects that Koteles’ present offense occurred when he and his brother broke into a business establishment at night to steal money. Koteles was intoxicated at the time. The record reflects that Koteles’ other two felonies, a robbery and another burglary, were committed at night while Ko-teles was intoxicated. Under these circumstances the trial court could find a pattern of potentially serious conduct when Koteles is intoxicated, and did not err therefore in finding that Koteles had failed to establish by clear and convincing evidence either of the mitigating factors. See Wright v. State, 656 P.2d 1226 (Alaska App., 1983).

The judgment of the superior court is AFFIRMED.

1 . Article I, § 12 of the Alaska Constitution states in part: “Penal administration shall be based on the principle of reformation and upon the need for protecting the public.”

2 . AS 12.55.155(g) states: “Voluntary alcohol or other drug intoxication or chronic alcoholism or other drug addiction may not be considered an aggravating or mitigating factor.”

3 .U.S. Const, amend. XIV; Alaska Const, art. I, § 1-