Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge MANNHEIMER.

James E. Hottenstein sexually abused his daughter over the course of two years. Hottenstein was initially indicted on four counts of second-degree sexual abuse of a minor (sexual contact with one's child who was under the age of 18),1 but he reached a plea agreement with the State. Under the terms of this agreement, Hottenstein pleaded guilty to a single reduced charge of attempted second-degree sexual abuse of a minor, with open sentencing.

This offense carried a presumptive sentencing range of 2 to 10 years to serve, with a mandatory additional 2 years suspended. The superior court ultimately sentenced Hottenstein to 12 years with 5 years suspended — i.e., 7 years to serve.

On appeal, Hottenstein contends that his sentence is excessive — that the sentencing judge failed to give sufficient weight to Hottenstein's remorse for his crimes and his potential for rehabilitation.

In his sentencing remarks, the judge noted that "rehabilitation [was] a relevant consideration", and the judge stated that he believed Hottenstein's apology to his daughter was "heartfelt". However, the judge also concluded that Hottenstein still did not fully understand what he had done, or why he had done it. The judge noted that Hottenstein's lengthy allocution at sentencing contained "a lot of excuses".

The judge stated that he had selected a sentence of 7 years to serve ("slightly up in the [presumptive] range") because, even though "the rehabilitation piece of this [was] important", the judge concluded that a substantial sentence was required in order to deter others from committing this crime and to re-affirm the societal values that Hottenstein had violated.

We have independently reviewed the record, and we conclude that the sentencing judge's decision is not clearly mistaken.2 We therefore uphold Hottenstein's sentence.

Hottenstein raises one more issue on appeal: he claims that he should have received credit against his sentence for the nearly three-and-a-half years that he spent on electronic monitoring while he awaited the disposition of his charges.

Hottenstein was released on electronic monitoring in late March 2012, and he was remanded to custody in mid-August 2015, the date on which he entered his guilty plea pursuant to the plea bargain. However, the superior court denied Hottenstein any credit for the time that he spent on electronic monitoring because the court found that Hottenstein committed a crime while he was on electronic monitoring. See AS 12.55.027(d), as interpreted in State v. Bell, 421 P.3d 128, 131-34 (Alaska App. 2018).

Here are the underlying facts:

In March 2012, just before Hottenstein was charged with sexually abusing his daughter, he committed forgery by manufacturing a fraudulent document and then submitting ("uttering") this fraudulent document to the Child Support Services Division. The fraudulent document purported to be a court order reducing Hottenstein's child support from $1125 per month to $600 per month.

Hottenstein fabricated this document by piecing together two court orders so that they appeared to be one document, and by using white correction fluid so that he could insert a false, lower dollar amount for his child support obligation. In reliance on this fraudulent document, the Division reduced Hottenstein's child support to $600 per month. The Division did not discover Hottenstein's fraud until a few months later, when Hottenstein's former wife challenged the new, lower amount of child support.

Based on this criminal conduct, Hottenstein was charged with two counts of second-degree forgery in late 2014. He ultimately pleaded guilty to one count of forgery in exchange for a stipulated sentence of 24 months' imprisonment, with all 24 months suspended.

As we explained in State v. Bell, a defendant who is released on bail on electronic monitoring forfeits any credit against their sentence if they commit a crime while on electronic monitoring. 421 P.3d at 131-33. Here, however, Hottenstein was not on bail release when he made the fraudulent document and submitted it to the Child Support Services Division. Hottenstein was not charged with sexually abusing his daughter until later that month.

At Hottenstein's sentencing hearing in the sexual abuse case, the prosecutor argued that even though Hottenstein's acts of forgery pre-dated his bail release on electronic monitoring, the effects of Hottenstein's forgery continued while he was on electronic monitoring — because, from April until the end of July 2012, the Child Support Services Division was tricked into not demanding the full amount of Hottenstein's child support obligation. The prosecutor contended that Hottenstein's forgery "was clearly an ongoing offense", in that Hottenstein "reap[ed] the benefits of [the forgery] every month that he [paid] less child support."

Hottenstein's attorney argued that Hottenstein had not committed a crime while on electronic monitoring because Hottenstein's forgery pre-dated his release on electronic monitoring. The defense attorney conceded that Hottenstein had temporarily reaped the benefits of that forgery for a few months, when the Child Support Services Division reduced the amount of Hottenstein's monthly child support payment. But the defense attorney pointed out that Hottenstein's fraud was discovered by the end of July, and Hottenstein was quickly ordered to pay the child support arrears.

Hottenstein's attorney also argued that, after Hottenstein submitted the forged court order to the Division in March 2012, Hottenstein had not done anything more to affirmatively promote or advance his fraud. Hottenstein had simply failed to reveal the fraud to the Division — thus passively accepting the benefits of his fraudulent act.

After hearing these arguments, the sentencing judge adopted yet a third view of this matter. The judge acknowledged that Hottenstein's act of forgery was committed before Hottenstein was arraigned and released on electronic monitoring. But the judge ruled that Hottenstein's act of forging the court order was a preparatory criminal act that enabled Hottenstein to engage in an ongoing scheme to defraud for several months while Hottenstein was on electronic monitoring.

The judge acknowledged that the State had not charged Hottenstein with scheme to defraud under AS 11.46.600(a). But the judge concluded that Hottenstein had in fact engaged in an ongoing scheme to defraud — and that this scheme was a distinct offense from the forgery charge that Hottenstein had pleaded guilty to. The judge found that Hottenstein had engaged in this uncharged scheme to defraud for several months while he was on electronic monitoring — each of the months where Hottenstein "was relying on [his earlier] fraudulent act to pay less than he was supposed to." The judge therefore ruled that Hottenstein was not entitled to any credit against his sentence for the time he spent on electronic monitoring.

On appeal, Hottenstein argues that the judge committed error by focusing on the continuing effects of Hottenstein's acts of forgery (which lasted until the end of July 2012), rather than focusing on the dates in March 2012 when Hottenstein made the forged court order and submitted it to the Child Support Services Division. But this argument misses the essential aspects of the sentencing judge's ruling.

The sentencing judge expressly acknowledged that Hottenstein's acts of forgery pre-dated his release on electronic monitoring. And the judge did not rule that forgery was a continuing crime simply because an act of forgery might have long-term effects. Rather, the judge ruled that Hottenstein's particular act of forgery (i.e., his forgery of a court order) allowed him to pursue another crime — an ongoing, uncharged scheme to defraud. The Child Support Services Division, duped by Hottenstein's forged court order, lowered Hottenstein's monthly child support payments to $600 per month (down from $1125 per month), and Hottenstein fraudulently took advantage of this lowered payment amount for several months while he was on electronic monitoring.

The sentencing judge ruled that, each time Hottenstein paid $600 instead of $1125, Hottenstein affirmatively engaged in this uncharged scheme to defraud.

(It was on this basis that the judge distinguished Hottenstein's case from situations where a person simply takes someone else's money or property — i.e., situations where the person's failure to return the stolen money or property does not constitute a separate crime. See State v. Saathoff, 29 P.3d 236 (Alaska 2001) (holding that theft by receiving is not a continuing offense).

Although Hottenstein now claims that the sentencing judge's analysis was incorrect, Hottenstein's briefing is inadequate to preserve this issue. Hottenstein fails to address the core elements of the judge's ruling — in particular, the trial judge's analysis that Hottenstein engaged in a new crime (an uncharged scheme to defraud) every time he made an illegally small payment toward his child support. Because Hottenstein fails to meaningfully brief this issue, we uphold the judge's ruling without expressly endorsing it.

The judgement of the superior court is AFFIRMED.