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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FREDERICK WHITE, )
) Court of Appeals No. A-6895
Appellant, ) Trial Court No. 1JU-97-1521 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1614 - December 24, 1998]
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.
Appearances: David D. Mallet, Juneau, for
Appellant. Thomas E. Wagner, Assistant District Attorney, Richard
A. Svobodny, District Attorney, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Frederick White was convicted of felony driving while
intoxicated, a class C felony. [Fn. 1] Superior Court Judge Larry
R. Weeks sentenced White to serve 5 years in prison the maximum
term allowable under AS 12.55.125(e). In this appeal, White
contends that this sentence is excessive. For the reasons explained
here, we conclude that the superior court properly viewed White as
a "worst offender", and we therefore conclude that White's sentence
of 5 years to serve is not clearly mistaken. [Fn. 2]
This case arose in Yakutat on August 3, 1997. In the
middle of the afternoon, the police received a report that Frederick
White was intoxicated and was driving from the airport towards town.
Investigating this report, a police officer drove toward the
airport. When he saw White's truck headed the other way, the
officer turned around and began to follow White. White turned onto
a side road, then backed his vehicle into a ditch while trying to
turn around. The officer contacted White and had him perform field
sobriety tests. When White failed these tests, the officer arrested
him for driving while intoxicated. White's Intoximeter result was
.233 percent blood alcohol.
White was released from custody around 5:00 p.m.. As part
of his conditions of release, White was ordered not to drive for the
next 24 hours and not to possess or consume alcohol pending his next
court appearance.
About an hour and a half later, the police received a
report that White was again operating his vehicle (while still
intoxicated), and that White was in possession of a bottle of vodka.
When officers went to investigate, they found a 55-gallon drum that
had rolled off of White's truck while he was driving. They then
found White at the boat harbor; White told the officers that he had
driven to the harbor to deliver groceries to his boat. The officers
found a half-gallon bottle of vodka in the front seat of White's
truck. White again failed field sobriety tests, and he was again
arrested.
During the ride to the police station, White raised his
leg over the seat divider and kicked one of the police officers in
the face. The blow was forceful enough to leave a boot imprint.
The officers used cap-stun on White, but they still had to
physically struggle with White to subdue him. At the station,
White's Intoximeter result was .221 percent blood alcohol.
Based on these incidents, White was charged with two
counts of felony driving while intoxicated and one count of assault.
White ultimately reached a plea agreement with the State. Under
this agreement, White pleaded no contest to one count of DWI; the
State dismissed the assault and the other count of DWI, with the
proviso that these crimes could be considered at sentencing.
Felony driving while intoxicated is a class C felony. [Fn.
3] White had a prior felony conviction from 1983, and so he faced
a presumptive term of 2 years' imprisonment and a maximum term of
5 years' imprisonment. [Fn. 4] White's prior felony conviction was
for third-degree assault, but the offense actually constituted an
aggravated instance of driving while intoxicated: White caused a
traffic accident while he was driving drunk and, as a result, six
people were injured.
White had an extensive history of driving while
intoxicated. He had twelve prior convictions for that crime (or the
predecessor crime, "operating a motor vehicle while intoxicated").
Many of these prior DWIs involved motor vehicle accidents; one of
them involved a hit-and-run. The DWI in the present case was White's
thirteenth, and the dismissed count would have been his fourteenth.
Moreover, White had an extensive history of assault
offenses. Most of these assaults were directed at police officers.
As already explained, White assaulted one of the arresting officers
in the present case by kicking him in the head. This latest assault
was similar to three other assaults that White had committed.
White was convicted of assault and battery in 1974 (under
the former criminal code) for attempting to kick a police officer
in the head. As in the present case, the assault occurred while the
officer was trying to take White to jail. Six years later, in 1980,
White was convicted of fourth-degree assault for kicking and hitting
a state trooper in the face. In 1985, White was again convicted of
fourth-degree assault. This incident occurred after White was
arrested in Juneau. White was intoxicated, and he assaulted the
officer by hitting him in the face with his fists and with
handcuffs.
In addition to these assaults on police officers, White
was convicted of fourth-degree assault in 1994 for shaking and
threatening his wife.
Based on White's history of DWI's, Judge Weeks found
aggravator AS 12.55.155(c)(21) that White had a history of
repeated offenses similar in nature to the crime for which he was
being sentenced. Based on White's history of assaults, Judge Weeks
found aggravator AS 12.55.155(c)(8) that White's criminal history
included repeated instances of assault.
Judge Weeks found that White was a "worst offender" for
sentencing purposes. [Fn. 5] The judge noted that White "ha[d] been
through numerous alcohol rehabilitation programs", all without
lasting effect. The judge also noted that White had repeatedly
violated previous probations. He concluded that a maximum sentence
was required to protect the public from White.
On appeal, White essentially concedes that he has a
terrible record, but he nevertheless argues that Judge Weeks should
not have classified him as a "worst offender" because the facts of
his present offense are not among the worst. We reject this
argument for two reasons, one legal and one factual.
First, a finding of "worst offender" need not be based on
the facts of the defendant's present offense. A defendant can be
classified as a "worst offender" based either on the circumstances
surrounding the defendant's present offense, or on the defendant's
criminal history, or both. [Fn. 6] In this case, White's record
amply supports Judge Weeks's finding that White is a "worst
offender".
Second, White's present offense is hardly mitigated.
Although he was allowed to plead no contest to a single count of
felony DWI, White in fact committed two separate DWI's. Further,
as part of the second incident, White assaulted one of the officers
who were transporting him to jail. Even after the officers sprayed
White with cap-stun, they still had to use physical force to subdue
him.
For all of these reasons, we uphold Judge Weeks's finding
that White is a "worst offender". We accordingly conclude that
White's 5-year prison term is not clearly mistaken. The sentencing
decision of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See AS 28.35.030(a) & (n).
Footnote 2:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Footnote 3:
AS 28.35.030(n).
Footnote 4:
AS 12.55.125(e)(1).
Footnote 5:
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Footnote 6:
Wortham, 537 P.2d at 1120; Napayonak, 793 P.2d at 1062.
