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Court of Appeals upholds jail sentence for foiled bank robber

Posted: February 15, 2013 - 2:50pm  |  Updated: February 17, 2013 - 1:20am

The Alaska Court of Appeals issued a memorandum opinion on Friday upholding the jail sentence for a Juneau man convicted of robbery with a plastic toy gun.

Kenneth A. Montoya, now 67, had received an eight year jail sentence with four suspended for the May 31, 2011, stunt.

He appealed, saying the sentence was excessive, and that the judge ignored his mental illness and potential for rehabilitation.

Court of Appeals Judge Joel H. Bolger disagreed and wrote in the memorandum opinion that the sentence is “well-supported” by the record and “falls within the permissible range of reasonable sentences” for the offense. Bolger also found the trial court judge, Juneau Superior Court Judge Philip Pallenberg, did not ignore Montoya’s mental health problems.

“The fact that an offender suffers from a chronic mental illness does not necessarily mean that the offender should receive a mitigated sentence,” Bolger wrote. “In this case, the judge specifically recognized both the mitigating and the aggravating aspects of Montoya’s persistent mental health problems. The judge found that Montoya’s illness raised the troubling potential that he could commit another dangerous crime unless he was confined to protect the public. And the judge recognized that this crime had caused a great deal of trauma to the bank teller who was the victim of this offense.”

Prosecutors said Montoya had purchased a toy gun at Benjamin Franklin general store then walked across the street to First National Bank. He handed the bank teller a note saying, “This is a stickup; give me all your money. I have a gun.” The teller handed over $8,750 from the register, but then Montoya requested that she call police. He waited for police to arrive and was arrested.

Montoya told the judge during sentencing that he had concocted the scheme so that he could go to prison and receive cancer treatment. He had a history of prostate cancer. Montoya’s attorney, Public Defender David Seid, said that his client has schizophrenia and refuses to be medicated.

Montoya was originally indicted on first-degree robbery, but he entered into a plea bargain and admitted the reduced charge of second-degree robbery. The reduced charge deleted the allegation that Montoya had used or threatened to use a deadly weapon.

The presumptive sentencing range for Montoya was one to three years in prison, but Pallenberg found that state had proved an aggravating factor — that the crime was among the “most serious” conduct included in the definition of the offense. That finding allowed the presumptive range to be higher, and as Bolger noted in the memo, Pallenberg could have imposed a maximum sentence of 10 years in jail for the offense.

“Based on his sentencing findings, the judge imposed a sentence of four years active imprisonment — a sentence that was exactly halfway between the high end of the presumptive range for second-degree robbery and the low end of the range for first- degree robbery,” Bolger wrote.

Memorandum Opinions and Judgement (MOJ) issued by the Court of Appeals are different from slip opinions in that they are without precedential effect and may not be cited in the courts of the state of Alaska.

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

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