Dodge v. Municipality of Anchorage (7/8/94) ap-1355
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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Courts, 303 K Street, Anchorage, Alaska
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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL DODGE, )
)
Appellant, ) Court of
Appeals No. A-4904
) Trial
Court No. 3AN-M93-1752CR
v. )
) O P I N I
O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1355 - July 8, 1994]
______________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Stephanie
Rhoades, Judge.
Appearances: Brent Cole, Brena, McLaughlin &
Cole, P.C., Anchorage, for Appellant. Tracy
Gellert, Assistant Municipal Prosecutor, and
Richard L. McVeigh, Municipal Attorney,
Anchorage, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
COATS, Judge.
Michael Dodge was convicted of driving while
intoxicated (DWI)1 and sentenced to serve one year in prison and
pay a fine of $5000. The sentencing court revoked Dodge's
driver's license for the rest of his life. The original judgment
against Dodge contains no order that Dodge be screened for
alcohol treatment or participate in a treatment program.
Dodge moved for correction of his sentence, arguing
that the sentence was illegal because it contained no requirement
of alcohol screening or treatment.2 In response to Dodge's
motion District Court Judge Stephanie Rhoades issued an order
amending the judgment as follows:
The court hereby imposes the condition that
the defendant complete treatment recommended
by alcohol screening which may include up to
90 days required aftercare in addition to any
jail time ordered. The defendant shall
report to the Alcohol Safety Action Program
within five days of his release from jail.
The defendant shall not be released to serve
any part of his sentence in a treatment
facility for the strong reasons of
deterrence, community condemnation and
reaffirmation of societal norms expressed on
the record at sentencing in this case. This
condition will be enforced through the
court's contempt powers. All other terms of
the sentence remain the same.
Dodge appeals the judgment as amended. He argues that the
amended judgment was issued in violation of his constitutional
right against double jeopardy, and that the sentence imposed
exceeds the maximum allowable sentence for DWI. He also
challenges the original terms of the sentence on several grounds.
We agree with Dodge that if Judge Rhoades' amended
sentence is interpreted to authorize Dodge's placement in a
residential treatment facility, the sentence violates Dodge's
double jeopardy rights. Custodial confinement in a residential
alcohol treatment program is the functional equivalent of jail
time and therefore constitutes a sentence of imprisonment. Lock
v. State, 609 P.2d 539 (Alaska 1980); Hester v. State, 777 P.2d
217 (Alaska App. 1989). Having once imposed sentence, Judge
Rhoades could not later increase that sentence by requiring Dodge
to undergo additional residential treatment. Sonnier v. State,
483 P.2d 1003 (Alaska 1971); Hester, 777 P.2d at 219. Upon
remand the district court shall strike that portion of the
amended judgment requiring Dodge to participate in residential
alcohol treatment.
Dodge challenges his sentence of one year to serve on
the ground that the court erred in finding him to be a "worst
offender" for DWI offenses. Generally, the maximum sentence
should not be imposed "without some foundation for characterizing
a defendant as the worst type of offender." State v. Wortham,
537 P.2d 1117, 1120 (Alaska 1975). A worst offender finding may
be based on the defendant's background, the seriousness of the
current offense, or both. Collins v. State, 778 P.2d 1171, 1175
(Alaska App. 1989). In this case Judge Rhoades found Dodge to be
a worst offender based on his record of convictions for DWI and
related offenses.
Dodge's criminal record is sufficient to support the
trial judge's finding that he is a worst offender. Dodge has
four prior convictions for DWI, one in 1973, two in 1976 and one
in 1977. In 1984 Dodge was convicted of manslaughter as a result
of having crashed an airplane that he was operating while
intoxicated. The crash killed Dodge's passenger.
Notwithstanding Dodge's nine years without a criminal conviction
following the manslaughter, the court's finding that he is a
worst offender for DWI-type offenses is not clearly mistaken.
Dodge also argues that the imposition of a $5000 fine
without an inquiry into his ability to pay it was illegal. Dodge
concedes that no provision of the Anchorage Municipal Code
requires the sentencing court to inquire into the defendant's
financial resources before imposing a fine. He asks us to apply
AS 12.55.035(a) to this case. According to Dodge, that statute
provides in part:
In determining the amount and method of
payment of a fine, the court shall take into
account the financial resources of the
defendant and the nature of the burden its
payment will impose.
What Dodge overlooks is that the legislature amended AS 12.55.035
in 1992, deleting the language upon which Dodge relies. This
amendment took effect on September 14, 1992, well before Dodge
committed the present offense. The law in effect at the time of
Dodge's sentencing imposed no duty upon the court to inquire into
Dodge's ability to pay the fine imposed. We note that Dodge
never objected in the trial court that he did not have the
ability to pay the fine.
Dodge contests the lifetime revocation of his driver's
license on several grounds. He contends that the ordinance and
statute authorizing the court to revoke a driver's license upon
conviction for DWI do not authorize lifetime revocations.
Anchorage Municipal Code 09.28.020C.4 provides that when a
defendant is convicted for DWI for driving a vehicle for which a
driver's license is required, "the person's driver's license
shall be revoked in accordance with AS 28.15.181." Alaska
Statute 28.15.181(c) directs a court convicting a person of DWI
to revoke the person's driver's license, privilege to drive or
privilege to obtain a license. The statute sets forth mandatory
minimum periods for the license revocation, but specifies no cap
on the permissible revocation period:
A court convicting a person of an
offense described in (a)(5) or (8) of this
section arising out of the operation of a
motor vehicle, commercial motor vehicle, or
aircraft shall revoke that person's driver's
license, privilege to drive, or privilege to
obtain a license. The revocation may be
concurrent with or consecutive to an
administrative revocation under AS 28.15.165.
The court may not, except as provided in AS
28.15.201, grant limited license privileges
during the minimum period of revocation. The
minimum periods of revocation are:
(1) not less than 90 days if the person
has not been previously convicted;
(2) not less than one year if the
person has been previously convicted once;
(3) not less than 3 years if the person
has been previously convicted twice;
(4) not less than 5 years if the person
has been previously convicted more than
twice.
The plain language of AS 28.15.181(c) appears to
authorize the sentencing court to revoke the defendant's driver's
license for any period not less than the applicable mandatory
minimum period. When a statute's meaning appears clear from its
plain language, the party asserting a different meaning bears the
burden of demonstrating contrary legislative intent. Stephan v.
State, 810 P.2d 564, 566 (Alaska App. 1991); Helton v. State, 778
P.2d 1156, 1158-59 (Alaska App. 1989). Dodge has not cited to
any authority which would lead us to question the apparent plain
meaning of the ordinance. Our independent research has not led
us to a different conclusion. We accordingly conclude that the
ordinance authorizes a court to revoke a driver's license for any
period of years, including a lifetime revocation.
Dodge argues that if interpreted to allow lifetime
license revocations, AS 28.15.181 is unconstitutionally vague.
As we have previously stated, the language of the statute seems
clear. We do not find the statute vague.
Finally, Dodge argues that the lifetime revocation is
excessive, and so disproportionate to his offense as to be cruel
and unusual punishment. We agree with Dodge that a court should
impose a lifetime revocation of a driver's license only in
extreme cases when the court concludes that such a revocation is
required to protect the public. However, as we have already
noted, Dodge has a twenty-year history of repeated offenses
involving the operation of motor vehicles while intoxicated.
Dodge caused a person's death during one of these offenses. The
present DWI was very serious and involved a traffic accident, a
blood-alcohol content of more than twice the legal limit, and the
endangerment of numerous people, including Dodge's fifteen-year-
old passenger. Having reviewed the entire record, we conclude
that the lifetime driver's license revocation is neither clearly
mistaken3 nor so disproportionate to Dodge's offense as to be
completely arbitrary and shocking to the sense of justice.4
The provisions of the judgment imposing a sentence of
one year to serve, a fine of $5000, and a lifetime driver's
license revocation are AFFIRMED. The case is REMANDED for the
excision of the portion of the court's order requiring Dodge to
spend time in residential treatment.
_______________________________
*Sitting by assignment made under article IV, section
16 of the Alaska Constitution.
1. Anchorage Municipal Code (AMC) 09.28.020.
2. In support of his motion, Dodge cited AMC
09.28.020C.4, which provides that a court sentencing a person for
DWI shall order the person to undertake that program of alcohol
education or rehabilitation that the court finds appropriate; and
AMC 09.28.020G, which directs the sentencing court to order the
defendant to satisfy the screening and program requirements of an
authorized alcohol screening agency.
3. McClain v. State, 519 P.2d 811 (Alaska 1974).
4. Green v. State, 390 P.2d 433, 435 (Alaska 1964);
Burnor v. State, 829 P.2d 837, 840 (Alaska App. 1992).
