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Clark v. State (9/22/00) ap-1688
Clark v. State (9/22/00) ap-1688
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHNNY L. CLARK, )
) Court of Appeals No. A-7343
Appellant, ) Trial Court No. 3SW-98-205 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1688 September 22, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Seward, Charles K. Cranston, Judge.
Appearances: Diane L. Foster, Assistant Public
Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Eric A. Johnson, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to decide whether presumptive
sentencing applies to defendants convicted of felony driving while
intoxicated. We hold that it does.
Johnny L. Clark drove a motor vehicle while he was
intoxicated, a violation of AS 28.35.030(a). This offense is
normally a misdemeanor; but because Clark had two prior convictions
for this crime within the preceding five years, his offense was a
class C felony under AS 28.35.030(n). Clark pleaded no contest to
this charge.
Clark had thirty-one prior criminal convictions. These
convictions included two felonies: third-degree assault and
attempted second-degree sexual assault. Based on Clark's two prior
felonies, Superior Court Judge Charles K. Cranston ruled that Clark
was subject to presumptive sentencing as a third felony offender.
Because felony DWI is a class C felony, the judge ruled that Clark
faced a 3-year presumptive term. [Fn. 1]
Judge Cranston found one pertinent aggravating factor
under AS 12.55.155(c): aggravator (c)(8) that Clark's criminal
history included aggravated or repeated instances of assaultive
behavior. (Besides his two assaultive felonies, Clark had been
convicted of seven misdemeanor assaults over the past twenty years.)
Based on this aggravator, Judge Cranston adjusted Clark's
presumptive term by adding 6 months to serve and an additional 1«
years suspended. That is, Clark was sentenced to 5 years'
imprisonment with 1« years suspended (3« years to serve).
In this appeal, Clark contends that presumptive sentencing
does not apply to his offense. He points out that, in AS
28.35.030(n), the legislature has enacted a series of mandatory
minimum sentences for felony DWI minimum sentences that escalate
depending on how many times the defendant has been convicted of DWI
or breath-test refusal within the preceding ten years. [Fn.
2] Clark argues that these mandatory minimum sentences are intended
to supplant or supersede the "minimum sentences" contained in the
presumptive sentencing statutes (specifically, in AS 12.55.125).
Clark's argument is flawed because the presumptive terms
listed in AS 12.55.125 are not "minimum sentences". A mandatory
minimum sentence represents the legislature's judgement concerning
"[the] minimum sentence ... appropriate for [an] offender whose
conduct is the least serious contemplated by the definition of the
offense". [Fn. 3] A presumptive term, on the other hand, represents
the legislature's judgement as to the appropriate sentence for a
typical felony offender (i.e., an offender with the specified number
of prior felony convictions, and with a typical background) who
commits a typical act within the definition of the offense. [Fn.
4] Thus, the mandatory minimum sentences for felony DWI listed in
AS 28.35.030(n) serve a different purpose from the presumptive terms
for class C felonies listed in AS 12.55.125(e).
Under AS 12.55.125(e), the sentencing range for class C
felonies is normally 0 to 5 years. For defendants with at least one
prior felony conviction, the presumptive terms listed in 125(e)(1)
and (e)(2) establish the starting point for sentencing within that
0- to 5-year range. For instance, because Clark is a third felony
offender, his presumptive term of imprisonment was 3 years, but the
sentencing judge had the authority to adjust that presumptive term
increasing Clark's sentence up to 5 years or decreasing it down
to 0 years if aggravating and/or mitigating factors were proved.
[Fn. 5] (Even in the absence of aggravating or mitigating factors,
Judge Cranston could have referred Clark's case to the statewide
three-judge panel under AS 12.55.165.)
The mandatory minimum sentences listed in AS 28.35.030(n)
perform another function: they modify the 0- to 5-year sentencing
range that would otherwise apply to a class C felony. In other
words, even though there is normally no mandatory minimum sentence
for class C felonies (even for offenders who have multiple prior
felony convictions), the legislature has created special mandatory
minimum sentences for this particular class C felony. These minimum
sentences hinge, not on the offender's prior felony record, but on
the offender's prior record of DWI and breath-test refusal
convictions.
The felony version of DWI is relatively new; it was
enacted in 1995. [Fn. 6] Because DWI has traditionally been a
misdemeanor, many defendants prosecuted under the felony provision
of the statute will be first felony offenders even though they have
many prior DWI convictions within the preceding ten years. The
minimum sentences listed in the statute guarantee that these first
felony offenders will receive the stated amount of jail time.
For example, Clark had four or more prior convictions for
DWI and/or breath-test refusal within the ten years preceding his
current offense. (To be precise, Clark had five prior convictions.)
Because of these prior convictions, Clark was subject to a mandatory
minimum sentence of 360 days' imprisonment. [Fn. 7] This would be
true even if Clark had had no prior felony convictions and had not
faced a presumptive term.
In this case, Clark had two prior felony convictions, so
his presumptive term of imprisonment was 3 years. But the minimum
sentence specified in AS 28.35.030(n) still applied. Even if Judge
Cranston had found mitigating factors and had wanted to impose no
jail time, or even if Judge Cranston had referred Clark's case to
the three-judge sentencing panel and the three-judge panel had
concluded that Clark deserved little or no jail time, Clark would
still have to receive a minimum of 360 days to serve.
For these reasons, we reject Clark's contention that
presumptive sentencing does not apply to felony DWI. This offense
is governed both by the presumptive sentencing laws and the
mandatory minimum sentences established in AS 28.35.030(n). There
is only one inconsistency between AS 28.35.030(n) and the usual
rules of felony sentencing codified in AS 12.55.125 175:
normally, there is no mandatory minimum sentence for class C
felonies, but the legislature has created mandatory minimum
sentences for felony DWI. Because a more specific sentencing
statute such as AS 28.35.030(n)(1) takes precedence over the
general sentencing statute, AS 12.55.125(e) [Fn. 8], Clark is
subject to the mandatory minimum sentence specified in AS
28.35.030(n)(1).
Clark raises two more issues on appeal.
First, Clark contends that Judge Cranston gave inordinate
sentencing weight to Clark's history of assaultive crimes
(aggravator (c)(8)). Clark's argument is premised on the assertion
that Judge Cranston increased Clark's time to serve by 2« years
(from 360 days to 3« years) based on this aggravator. But Clark is
again relying on the erroneous notion that a mandatory minimum
sentence is the same thing as a presumptive term. Clark faced a
presumptive term of 3 years to serve. Judge Cranston did not use
aggravator (c)(8) to increase Clark's time to serve by 2« years.
Rather, the judge relied on this aggravator to increase Clark's time
to serve by 6 months.
Clark does not offer any argument why this 6-month
increase was clearly mistaken. [Fn. 9] We have independently
reviewed the record, and we conclude that it supports Judge
Cranston's decision.
Finally, Clark argues that his sentence (5 years with 1«
years suspended) is excessive. But Clark's argument is essentially
a reiteration of the contention that his presumed sentence should
have been 360 days to serve. This is incorrect. A sentence of 360
days was the absolute minimum that Clark could receive under any
circumstance. A sentence of 3 years was what Clark would
presumptively have received if Judge Cranston had concluded that
Clark's offense was a typical felony DWI and that Clark was a
typical third felony offender. Judge Cranston concluded, however,
that Clark was a serious offender whose record of alcohol abuse and
violence called for an upward adjustment of the 3-year presumptive
term. Having reviewed the record, we conclude that Clark's sentence
is not clearly mistaken. [Fn. 10]
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See AS 12.55.125(e)(2).
Footnote 2:
See AS 28.35.030(o)(4).
Footnote 3:
Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App. 1983).
Footnote 4:
See Mullin v. State, 886 P.2d 1323, 1328 (Alaska App. 1994).
See also Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App. 1982),
modified and superseded on other grounds, 665 P.2d 30 (Alaska App.
1983).
Footnote 5:
See AS 12.55.155(a)(1).
Footnote 6:
See SLA 1995, ch. 80, sec.sec. 3-7.
Footnote 7:
See AS 28.35.030(n)(1)(C).
Footnote 8:
See In re Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978).
Footnote 9:
See Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991)
(a sentencing judge's decision regarding how much to adjust a
presumptive term based on aggravating or mitigating factors is
reviewed under the "clearly mistaken" test).
Footnote 10:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
