State of Alaska v Winters III, Goodmanson (8/29/97) ap-1544
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6216
Appellant, ) Trial Court No. 3AN-S95-7738CR
)
v. ) O P I N I O N
)
RALPH M. WINTERS, III, )
)
Appellee. )
)
)
STATE OF ALASKA, )
) Court of Appeals No. A-6263
Appellant, ) Trial Court No. 3AN-S96-0315CR
)
v. )
)
DAVID S.J. GOODMANSON, )
)
Appellee. ) [No. 1544 - August 29, 1997]
___________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, William H. Fuld, Judge.
Appearances: Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Daniel Lowery, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for Appellees.
Before: Coats, Chief Judge, Mannheimer,
Judge, and Joannides, District Court Judge.
COATS, Chief Judge.
Ralph M. Winters III and David S.J. Goodmanson pleaded no
contest to driving while intoxicated (DWI) in violation of AS
28.35.030 on January 24, 1996, and February 22, 1996, respectively.
Winters had three prior convictions for DWI, from 1990, 1993 and
1994. Goodmanson also had three prior convictions for DWI, one in
1990 and two in 1992.
At the time of Winters' and Goodmanson's 1996
convictions, AS 28.35.030(n) provided:
(n) A person is guilty of a class C
felony if the person is convicted of driving while intoxicated and
has been previously convicted two or more times. For purposes of
determining if a person has been previously convicted, the
provisions of (o)(4) of this section apply, except that only
convictions occurring within five years preceding the date of the
present offense may be included. Upon conviction the court
(1) shall impose a fine of not less than
$5,000 and a minimum sentence of imprisonment of not less than
(A) 120 days if the person has been
previously convicted twice;
(B) 240 days if the person has been
previously convicted three times;
(C) 360 days if the person has
been previously convicted four or more
times . . . .
The parties all agree that Winters and Goodmanson were guilty of a
class C felony under this statute, but they disagree as to the
mandatory minimum sentence the two defendants faced.
Winters and Goodmanson argue that because they each had
only two prior convictions occurring within the five years
preceding their present offenses, their mandatory minimum sentence
is 120 days. The superior court, Judge William H. Fuld, agreed
with the defendants. Judge Fuld sentenced Winters to twenty months
with thirteen months suspended (210 days to serve), and Goodmanson
to two years with seventeen months suspended (210 days to serve).
The state appeals the judgments, arguing that Winters'
and Goodmanson's sentences are illegal. The state asserts that,
under the statute, the mandatory minimum term for persons with
three previous DWI convictions was 240 days. The state relies on
paragraph (o)(4) of the statute, which includes all DWI convictions
within the preceding ten years in the definition of "previously
convicted." [Fn. 1] If all convictions within the preceding ten
years are considered, Winters and Goodmanson have each been
"previously convicted" three times of DWI.
The parties' dispute centers on this provision of former
AS 28.35.030(n):
For purposes of determining if a person has
been previously convicted, the provisions of (o)(4) of this section
apply, except that only convictions occurring within five years
preceding the date of the present offense may be included.
The state argues that this sentence modified only the preceding
sentence of the statute, which said that a person convicted of DWI
is guilty of a class C felony if he or she had been "previously
convicted" two or more times. Winters and Goodmanson argue that
the provision in question modified all of paragraph (n) of the
statute, including the succeeding provision that upon conviction
the court shall impose a minimum sentence of imprisonment of not
less than "120 days if the person has been previously convicted
twice" and "240 days if the person has been previously convicted
three times."
The state construes the statute in favor of what it sees
as the obvious legislative intent to subject those convicted of
felony DWI to greater penalties than those convicted of misdemeanor
DWI. Winters and Goodmanson read former paragraph (n) as plainly
stating that only those convictions occurring within the preceding
five years are considered in determining the previous convictions
of persons covered by that paragraph.
The language of former AS 28.35.030(n) supports Winters
and Goodmanson's position. The phrase "previously convicted"
appears five times in the paragraph. The direction to consider
only convictions occurring within the preceding five years in
determining if a person has been previously convicted is
unqualified. Nothing in the language of the paragraph suggests
that this clause applies only to the single occurrence of the
phrase "previously convicted" in the sentence immediately preceding
it, and not to the three occurrences of "previously convicted" in
the sentence immediately succeeding it. As the state points out,
our reading of the former statute may result in some felony DWI
offenders being subject to less severe mandatory minimum sentences
than are misdemeanor offenders with the same number of prior
convictions. However, the statutory provisions at issue here deal
only with mandatory minimum sentences. Nothing in AS 28.35.030
prevents a sentencing judge from considering the defendant's entire
record of prior convictions and imposing a sentence commensurate
with the defendant's criminal history, as Judge Fuld did in
Winters' and Goodmanson's cases. Regardless of whether they impact
the mandatory minimum sentence, all prior convictions are relevant
at sentencing, and are properly considered by the sentencing court.
Burnette v. Anchorage, 823 P.2d 10, 14 n.4 (Alaska App. 1991);
Harlow v. State, 820 P.2d 307, 309 n.2 (Alaska App. 1991);
Garroutte v. State, 683 P.2d 262, 269 (Alaska App. 1984).
To the extent that the statute may have been ambiguous,
the state mistakenly construes the ambiguity against the
defendants. Ambiguities in penal statutes are strictly construed
against the state. Brookins v. State, 600 P.2d 12, 17 (Alaska
1979); State v. Rastopsoff, 659 P.2d 630, 640 (Alaska App. 1983).
The district court did not err in ruling that Winters and
Goodmanson were each subject to a mandatory minimum sentence of 120
days under former AS 28.35.030(n), based on two previous
convictions within the preceding five years. [Fn. 2]
The judgments of the district court against Winters and
Goodmanson are AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.030(o)(4) provides:
(o) In this section,
. . . .
(4) "previously convicted" means having
been convicted in this or another jurisdiction, within 10 years
preceding the date of the present offense, of any of the following
offenses; however, convictions for any of these offenses, if
arising out of a single transaction and a single arrest, are
considered one previous conviction:
(A) operating a motor vehicle, aircraft
or watercraft while intoxicated . . .
(B) refusal to submit to a chemical test
. . .
(C) operating a commercial motor vehicle
while intoxicated . . . .
Footnote 2:
In an amendment effective November 8, 1996, the legislature
rewrote AS 28.35.030(n) to cure the potential ambiguity at issue in
this case. The subsection now reads, in relevant part:
(n) A person is guilty of a class C
felony if the person is convicted of driving while intoxicated and
has been previously convicted two or more times within the five
years preceding the date of the present offense. For purposes of
determining minimum sentences based on previous convictions, the
provisions of (o)(4) of this section apply.
The statute now makes it clear that all convictions within the
preceding ten years are used in calculating the mandatory minimum
sentence for felony DWI.
