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655 P.2d 788

Tazruk v. State

Court of Appeals of Alaska

Decided December 30, 1982

Court of Appeals of Alaska · decided 1982-12-30

Key passage — most relied on by later courts

“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 sentencel,] 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 [the unsuspended] portion of the sentence.... 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. [But wel conclude that Tazruk's sentence does not violate the Austin rule.”

quoted by 1 later decision, including Dayton v. State

“[I]n evaluating whether a sentence is in excess of the presumptive [term] which a second felony offender would receive, our primary focus [is] on [the unsuspended] portion of the sentence.... 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 [presumptively] receive.... Tazruk’s sentence does not violate the Austin rule.”

quoted by 1 later decision, including Surrells v. State

Relies on State v. Chaney · Austin v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1982-12-30

How this case has been cited

Cited by 29 later decisions — most recently December 2006 · most notably Brezenoff v. State (1983), Van Hatten v. State (1983)

29 state decisions

210198219902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1 OPINION

COATS, Judge.

¶2 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.

¶3 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).

¶4 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.

¶5 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.

¶6 The sentence is AFFIRMED.

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