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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5125
Appellant, ) Trial Court No. 3AN-S93-560CR
)
v. ) O P I N I O N
)
JUSTIN D. MONK, )
) [No. 1382 - December 16,
1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: Shannon D. Hanley,
Assistant District Attorney, Edward E.
McNally, District Attorney, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. Barbara K. Brink, Deputy
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
COATS, Judge, concurring.
After entering pleas of no contest to the offenses,
Justin D. Monk was convicted of driving while intoxicated (DWI),
a class A misdemeanor, AS 28.35.030(a)(1), and third-degree
assault, a class C felony, AS 11.41.220(a)(2) & (b) (recklessly
causing physical injury to another person by means of a dangerous
instrument). On the DWI charge, Superior Court Judge Karen L.
Hunt sentenced Monk, a first offender, to one year in jail, with
all but the mandatory minimum term of seventy-two hours
suspended. On the assault charge, Judge Hunt suspended the
imposition of Monk's sentence for three years, directing Monk to
complete three years of probation. As special conditions of
probation, Judge Hunt ordered Monk, among other things, to pay
restitution in the amount of $3,305.40 and to perform three
hundred hours of community work.1 Monk's composite sentence thus
provided for no unsuspended incarceration beyond the mandatory
minimum time specified for DWI. The state appeals, contending
that Monk's sentence is too lenient. We agree and disapprove the
sentence.2
Monk's convictions stemmed from a motor vehicle
collision that occurred while Monk was on a weekend ski trip with
friends in Girdwood. Driving with a blood-alcohol level almost
twice the legal limit, Monk lost control of his car and collided
with two pedestrians who were walking on the roadway. Both
pedestrians suffered substantial, albeit not serious, physical
injuries. At the time of the offense, Monk was twenty-two years
of age and a first offender. He was serving as a yeoman third-
class with the Coast Guard in Kodiak. Monk had a good
performance record in the Coast Guard and was highly regarded as
a diligent and reliable worker by his superiors.
Monk's involvement in this offense appears to have had
a significant effect on him. Following the collision, at the
direction of the Coast Guard, Monk underwent an evaluation for
potential alcohol abuse. He thereafter spent three weeks in
residential alcohol treatment at a naval facility. Upon
returning to Kodiak, he continued to comply with all aftercare
requirements of the treatment program. At the sentencing
hearing, Monk's commanding officer testified strongly in Monk's
behalf. Monk expressed sincere remorse and accepted
responsibility for his conduct.
In imposing sentence, Judge Hunt found nothing
particularly aggravated or mitigated in Monk's conduct,
concluding that, "[f]or a DWI-based criminal offense this is a
typical offense by a typical offender."3 Judge Hunt went on to
find Monk's prospects for rehabilitation to be very good. Given
the nature of the offenses, Judge Hunt acknowledged that the
sentencing goals of deterrence and community condemnation
deserved serious consideration. However, based on Monk's
favorable prospects and his status as a youthful first offender,
Judge Hunt believed it appropriate to emphasize the sentencing
goal of rehabilitation. Finding a "tension between prospects for
rehabilitation . . . and the condemnation and reaffirmation of
community norms," the judge elected to suspend the imposition of
Monk's sentence on the felony assault charge and impose no
unsuspended jail time beyond the mandatory minimum of three days
for the DWI.
On appeal, the state maintains that "deterrence of
others and community condemnation dictate that the court should
have imposed a sentence greater than that imposed for a first
Driving While Intoxicated conviction where no injury resulted."
We agree.
Even assuming Monk had been charged with and convicted
of DWI alone, his conduct and the two injuries that resulted from
it could easily have justified a sentence of several months'
incarceration, despite his first-offender status. See, e.g.,
Brown v. Anchorage, 764 P.2d 322 (Alaska App. 1988). Monk,
however, was not convicted of DWI alone: he was also convicted of
one count of felony assault. His conduct, moreover, caused
physical injury to two separate victims and would thus have
supported separate convictions and sentences for two counts of
felony assault. See State v. Dunlop, 721 P.2d 604, 607 (Alaska
1986).
This is not to say that the imposition of a
probationary sentence should have been rejected out of hand by
the sentencing court. We have never suggested that non-
probationary sentences4 should normally be imposed in cases
involving class C felonies.5 Particularly when youthful first
offenders are convicted of such offenses, rehabilitation will
typically deserve strong emphasis, and sentencing courts will
have broad latitude to explore sentencing alternatives other than
jail time. Here, the record supports the sentencing court's
finding that Monk was a youthful first offender whose prospects
for rehabilitation were very good. Despite the seriousness of
Monk's conduct and of the injuries he caused, Judge Hunt cannot
be faulted for emphasizing rehabilitation and seeking to
accommodate the sentencing goals of deterrence and rehabilitation
by the use of reasonable alternatives to incarceration.
Nevertheless, the only alternative to incarceration
imposed by the court in this case was the requirement that Monk
complete three hundred hours of community service. At the
statutorily prescribed conversion rate of eight hours of
community service per day of incarceration,6 Monk's probation
requirement equates to only thirty-seven and one-half days of
incarceration -- a term that is far from ideally suited to
further the sentencing goals of general deterrence and community
condemnation. Even this relatively modest alternative to
incarceration, however, might have been justified if a more
substantial sentence would have been deleterious to the goal of
rehabilitation -- the goal that the sentencing court had
properly deemed paramount in Monk's case. In her sentencing
comments, Judge Hunt mentioned such a conflict: the court
expressly noted the existence of a "tension" between the goals of
rehabilitation and community condemnation. Yet our review of the
record discloses no evidence of actual conflict.
With respect to Monk's rehabilitation, the primary
concern of the parties and the sentencing court alike focused on
the imposition of a sentence that would enable Monk to maintain
his Coast Guard career. Monk's commanding officer, who testified
at the sentencing hearing, made it clear that a sentence
requiring Monk to serve up to sixty days in jail would be
unlikely to jeopardize Monk's Coast Guard service. More
significant, Monk's commander also suggested that Monk might be
ordered to undergo a period of up to ninety days' voluntary
restriction to quarters -- the equivalent of house arrest --
which the Coast Guard would supervise. This latter suggestion
was specifically endorsed by Monk at the sentencing hearing.
Indeed, in responding to the state's contention that a
substantial term of incarceration was appropriate, Monk's counsel
affirmatively urged the court to order, instead, a ninety-day
period of confinement to quarters in addition to a substantial
period of community service.
In suspending the imposition of Monk's sentence, the
sentencing court ignored the ninety-day confinement alternative
that Monk himself had argued for as a promising sentencing
alternative. Without explanation or comment, the court imposed
only the requirement of community service.7 The sentencing
record provides no hint as to the sentencing court's reasons for
rejecting Monk's proposal to require a ninety-day confinement to
quarters. Given the availability of this alternative, we find no
support in the record for the court's suggestion that a more
substantial sentence than the one actually imposed was precluded
by the existence of "tension" between the need to provide for
rehabilitation, on the one hand, and community condemnation and
general deterrence, on the other.
Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Under the specific circumstances of this case, and given the
seriousness of Monk's conduct and of the resulting injuries that
he inflicted on two separate victims, the need for general
deterrence and community condemnation called, at a minimum, for a
more substantial alternative to incarceration than was embodied
in the community work requirement imposed below.
The sentence is DISAPPROVED.
COATS, Judge, concurring.
I strongly disagree that Judge Hunt could not properly
take into consideration the actions which were taken by the Coast
Guard when she imposed her sentence. Monk served four to six
weeks in an alcohol treatment program and spent at least three
weeks of this time in residential treatment. The state agreed
that he should be given credit for having served a term of
imprisonment during the time he was in residential treatment.
Judge Hunt properly considered this in imposing sentence. In
addition, Judge Hunt properly considered the fact that Monk's
driving privileges were revoked for driving on any military
installation for twelve months. Judge Hunt could also consider
Monk's other extensive efforts at alcohol rehabilitation, even
though they were to some extent enforced by the military. The
military interest and participation in Monk's rehabilitation is
extremely positive.
Monk's commanding officer asked the court to restrict
Monk to quarters rather than serve additional jail time. Having
Monk restricted to quarters rather than having him serve
additional jail time was the cornerstone of the defense argument
at sentencing. Judge Hunt did not explain her failure to impose
this sanction. I can only assume that she simply forgot to
impose this portion of Monk's sentence. I accordingly join the
majority opinion disapproving the sentence.
_______________________________
1. In her oral sentencing remarks, Judge Hunt directed
Monk to complete his community work within five years of the
sentencing hearing. However, Judge Hunt had already
unequivocally ordered Monk to spend only three years on
probation. Since it is plainly anomalous to require a defendant,
as a condition of probation, to engage in conduct that will occur
after the expiration of the probationary term, the sentencing
court's reference to a five-year period for completing the
community work requirement appears on its face to be a mistake.
The written judgment does not incorporate the five-year
requirement. We interpret the written judgment as correcting the
orally imposed sentence and as requiring performance of the
community work during the three-year probationary term.
2. When the state appeals a sentence as too lenient, we
are not authorized to increase the sentence, but may only express
our approval or disapproval thereof. AS 12.55.120(b).
3. Although the accuracy of this conclusion is certainly
open to question, we may accept it for purposes of our decision.
4. A "non-probationary" sentence is one involving ninety
days or more of unsuspended incarceration. See Leuch v. State,
633 P.2d 1006, 1014 n.22 (Alaska 1981); State v. Jackson, 776
P.2d 320, 326-27 (Alaska App. 1989).
5. But see State v. Coats, 669 P.2d 1329, 1334 (Alaska
App. 1983) (suggesting that for first offense class C felonies
involving serious harm to others, probationary sentences should
ordinarily be reserved for particularly promising offenders whose
conduct is also mitigated).
6. AS 12.55.055(d) specifies that when a sentencing court
elects to allow a defendant to perform community work instead of
serving time in jail, the defendant must be credited with one day
of jail for every eight hours of community work performed. Cf.
State v. Hernandez, 877 P.2d 1309, 1313-14 n.6 (Alaska App. 1994)
(indicating that, in terms of sentencing goals such as deterrence
and community condemnation, eight hours of community work cannot
realistically be equated to a day of jail time).
7. Monk suggests that, under Nygren v. State, 658 P.2d 141
(Alaska App. 1983), the three weeks he spent in residential
treatment prior to sentencing should be counted as the equivalent
of time served. This contention is meritless, however. The
argument disregards that Monk underwent the treatment because the
Coast Guard required him to do so, not because of a court order
issued in connection with his criminal case. Moreover, although
the treatment may have been residential, Monk, as a member of the
Coast Guard, was already in a residential setting when he entered
treatment, and he returned to a residential setting after he left
treatment.
