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Judicial panel sends Perez case back to Superior Court

Deportation not inevitable, judges hint

Posted: April 23, 2012 - 3:05am
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Defendant Jose Perez, right, talks with Public Defender David Seid during his hearing in front of a three-judge panel on cocaine and assault charges on Friday.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Defendant Jose Perez, right, talks with Public Defender David Seid during his hearing in front of a three-judge panel on cocaine and assault charges on Friday.

A statewide three-judge panel ruled Friday that the state of Alaska does not have to adjust a Juneau resident’s presumptive prison sentence so that he avoids deportation.

The panel found it would not be manifestly unjust, given the facts of the case, to fail to adjust Jose Perez’s prison sentence outside the normal constraints of the presumptive sentencing law, so that he receives a sentence below the one-year minimum.

If Perez, who is convicted of drug misconduct, assault and interfering with official proceedings, is sentenced to one year or more in prison, he will be deported to his native Dominican Republic. Perez has been in custody for about 16 months awaiting his sentence.

The panel also suggested, however, deportation may not be inevitable in this case if certain requirements in the plea agreement were not there. They remanded the case back to Juneau Superior Court Judge Philip Pallenberg for sentencing.

The three trial court judges convened in the Dimond Courthouse in Juneau to hear the case of Jose Manuel Perez, a 37-year-old Dominican Republic citizen who has been living lawfully in the United States for about 27 years and in Alaska since 2000.

Perez pleaded guilty to fourth-degree drug misconduct last year when prosecutors alleged he sold heroin out of his Switzer Village trailer. He originally faced more serious charges of possessing heroin with intent to distribute, but a jury deadlocked on that charge in August.

But before that case ever went to trial, Perez got into further legal trouble when he attacked a drug dealer who testified against him as they were both being held at Lemon Creek Correctional Center. Perez was slapped with fourth-degree assault and interference with official proceedings charges.

The jury convicted Perez on those charges.

During a sentencing hearing with Judge Pallenberg in January, Perez’s attorney David Seid asked the judge to refer the case to the three-judge panel to consider whether a certain non-statuary mitigator would apply in this case in light of the possibility of deportation.

The mitigator would allow Perez to serve less than the presumptive sentencing range, which is one to three years. Seid requested Perez serve one day less, 364 days, to keep him from being deported.

If mitigator didn’t apply, Seid argued, Perez would be deported since any sentence that is more than one year automatically becomes an aggravated felony under federal law, which is a deportable offense.

Alaska statutes do not list deportation as a sentencing mitigator. Only the panel of three can find the existence of a non-statutory mitigator, which meant Pallenberg was unable to consider it.

The three judges — Judges Eric Smith of Palmer Superior Court, Randy Olsen of Fairbanks Superior Court and John Suddock of Anchorage Superior Court — were asked by the Court of Appeals to consider whether Perez would, in fact, face deportation for the drug and interference conviction.

After hearing testimony from an immigration attorney, the panel ruled Perez would certainly be deported for the interference conviction, but not the drug conviction. (The drug conviction has a one-time waiver he can apply for to avoid being deported. The interference conviction does not have that option.)

The second question was less straightforward: Since he will be deported, would it be “manifestly unjust” to fail to adjust Perez’s sentence outside of the normal constraints of the presumptive sentencing law, so that he received a sentence below the one-year minimum?

“This was a complicated issue for the panel,” Smith said. “Our overall answer to that question was no, but the answer was complex.”

Smith explained that because there was a plea agreement in place that required sentences for the two convictions to run concurrently, less than the presumptive one year would not be a great enough sentence for the two composite felonies.

“Framed in that way, we find that it would not be manifestly unjust not to go below the year,” Smith said.

A concurrent sentence means that the period of imprisonment equals the length of the longest sentence, in contrast to a consecutive sentence wherein the period of imprisonment is the sum of all the sentences added together.

But without the concurrent sentences, Smith said, the panel would have probably offered a different ruling.

“And under those circumstances, the panel believes that it would be quite possible to find by clear and convincing evidence that it would be that it would be manifestly unjust not to structure a sentence that enables him to avoid deportation but still puts him in jail for the approximate three year period,” Smith said.

A timeline for when Pallenberg will take up the case for sentencing was not provided, but attorneys are still able to file motions to appeal the ruling.

Pallenberg could always reject the plea agreement in place, or the attorneys could rework the agreement. It’s unclear at this point if that will happen.

Before the ruling was issued, Perez testified before the judges that he lawfully immigrated to the U.S. when he was 8 1/2 years old. His grandparents were already living in New Jersey. He soon established legal permanent residence. He moved to Alaska in 2000 and has renewed his U.S. Green Card every 10 years, he said.

The only time he went back to the Dominican Republic was when he was 11 years old to visit his father for a couple of months, he said. His father has since died, and Perez said he has “no clue” whether he has family there or not.

Perez, a construction worker who is bilingual, is married to a U.S. citizen. His mother, who lives in Miami, just became a U.S. citizen recently, he said.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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