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3-judge panel rules in Juneau heroin, assault case

Posted: August 1, 2012 - 11:06pm
Jose M. Perez, left, and Public Defender David Seid listen to the state's case against him in front of a three-judge panel on Wednesday. Perez, convicted of drug misconduct and interference with official proceedings, was facing possible deportation to his native Dominican Republic.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Jose M. Perez, left, and Public Defender David Seid listen to the state's case against him in front of a three-judge panel on Wednesday. Perez, convicted of drug misconduct and interference with official proceedings, was facing possible deportation to his native Dominican Republic.

A statewide three-judge panel ruled Wednesday it would be manifestly unjust if a trial court failed to adjust a Juneau man’s prison sentence by one day below the presumptive sentencing range in light of deportation.

“The court did the right thing,” said Jose Manuel Perez’s attorney David Seid after the hearing at the Juneau Dimond Courthouse. “Good result.”

The panel of judges referred the case back up to the Court of Appeals for further proceedings after announcing its unanimous decision.

This was the second time the panel heard the case of Perez, a 37-year-old Dominican Republic citizen who has been living lawfully in the United States for about 27 years and in Alaska for the past 12.

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 home country.

This ruling allows the sentencing judge to impose 364 days in prison for the drug and interference convictions, instead of the sentencing law minimum of 365. Seid says that will be enough to keep Perez in the United States, where Perez lawfully immigrated to as a child.

Judge Eric Smith of Palmer Superior Court announced the decision after deliberating with the two other jurists for about an hour. Smith said it was the composite 3-year sentence that mattered the most — not how it is divided up — especially since the two crimes were closely linked in circumstance.

“We find that the key is the overall composite sentence,” Smith said.

Smith said the panel would recommend the sentence originally proposed by Juneau Superior Court Judge Philip Pallenberg in January. That called for Perez to serve 364 days on the interference charge and 364 days on the drug charge, as well as impose 437 days in suspended time from an earlier case in 2010.

Pallenberg noted at the time that fits within the presumptive range of one to three years.

Perez, who did construction work in Juneau, pleaded guilty to fourth-degree drug misconduct for possessing heroin last year. A jury also convicted him of assault and interference with official proceedings for attacking a drug dealer who testified against him as they were both being held at Lemon Creek Correctional Center.

During Perez’s sentencing hearing in January, Seid asked Pallenberg 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 deportation.

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-judge panel previously ruled the opposite when it first heard the case in April. But they hinted at the time that was primarily due to constraints in the plea agreement.

The agreement had been fashioned so the two 364-day proposed sentences run concurrently, instead of consecutively. That would have meant Perez would have been required to serve only one 364-day term instead of two.

Seid said he was no longer asking for that, even if it meant his client had to serve more time in prison.

“If that’s what it takes to keep him here, OK,” Seid said.

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

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