Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Foley v. State (10/6/00) ap-1692
Foley v. State (10/6/00) ap-1692
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
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAKE W. FOLEY, )
) Court of Appeals No. A-7514
Appellant, ) Trial Court No. 3AN-99-3759 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1692 October 6, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Gregory J. Motyka, Judge.
Appearances: Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Taylor E. Winston, Assistant
District Attorney, Susan A. Parkes, District Attorney, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Jake W. Foley received a sentence of 5 years' imprisonment
the maximum permissible sentence for the offense of felony
driving while intoxicated. On appeal, he contends that this
sentence is excessive. In light of Foley's numerous past offenses
and his repeated failures at rehabilitation, we conclude that this
sentence is not clearly mistaken. We therefore affirm Foley's
sentence.
On May 6, 1999, Foley was driving north on the Seward
Highway between Anchorage and Girdwood. He drove into the oncoming
lane, forcing a southbound driver to steer off the road to avoid a
collision. This driver, William Stoskopf, turned around and
followed Foley's truck toward Anchorage. For the next twenty
minutes, Stoskopf observed Foley driving erratically. At Potter
Marsh, where the highway divides as it approaches Anchorage, Foley
veered left and began to head into the southbound lanes of travel
before he swerved back into the northbound lanes.
Foley took the Rabbit Creek Road exit and turned west
toward the Old Seward Highway; Stoskopf continued to follow him.
Foley drove through a stop sign, ran over a median strip, and then
headed north toward town. He made a wide right turn onto Huffman
Boulevard (now heading east). In the process, he almost hit another
motorist, who had to take evasive action to avoid collision.
In the meantime, Anchorage police dispatch had alerted its
officers to be on the lookout for a suspected drunk driver who was
being followed by another motorist. Officer Glenn Daily came upon
Foley and Stoskopf as Foley was making the dangerous turn onto
Huffman Boulevard. Daily got behind Foley's vehicle, preparing to
turn on his overhead lights and make a traffic stop.
But before he could do so, Foley veered left across the
oncoming lanes of traffic, cutting off a westbound vehicle. Foley's
truck continued to the far side of the road, over the curb and
sidewalk, and through the grass at the corner of the Huffman
Business Park. Daily now activated his lights. Rather than
stopping, Foley accelerated and headed north. However, Foley missed
a curve in the road and came to an abrupt halt in the grass.
When Daily approached Foley, he smelled a very strong odor
of alcohol and he observed open beer cans in the truck. Daily had
a hard time getting Foley's attention. When Foley climbed out of
his vehicle, he was so unsteady on his feet that Daily had to
support him. A subsequent breath test showed that Foley's blood
alcohol level was .33 percent.
Based on this conduct, and because Foley had two prior
convictions for driving while intoxicated within the preceding five
years, Foley was indicted for felony driving while intoxicated. [Fn.
1] Felony DWI is a class C felony; the maximum punishment for this
crime is 5 years' imprisonment. [Fn. 2]
Foley was 52 years old at the time of sentencing. He had
accumulated thirty criminal convictions during the past quarter
century, including four felonies. However, Foley's felonies were
relatively old; the most recent, a conviction for second-degree
criminal mischief, was from 1985. Foley was discharged from his
felony probation in 1987, so he was not subject to presumptive
sentencing in this case. [Fn. 3]
Even though Foley was a first felony offender for
presumptive sentencing purposes, he had seven prior convictions for
driving while intoxicated: one in 1985, two in 1987, one in 1989,
one in 1992, one in 1996, and one in 1998. Based on these prior
convictions, Foley conceded that the State could prove aggravating
factor (c)(21): that Foley had a criminal history of repeated
instances of criminal conduct similar in nature to his present
offense. [Fn. 4] Because of this aggravating factor, the superior
court was authorized to consider sentences exceeding the 2-year
presumptive term that would apply to a second felony offender
convicted of the same crime. [Fn. 5]
In addition to his seven prior DWI convictions, Foley had
been convicted five times of driving while his license was
suspended, as well as failure to identify himself and to render
assistance at the scene of an accident ("hit and run").
At sentencing, Superior Court Judge pro tempore Gregory
J. Motyka declared that he would consider Foley's offense to be
significantly aggravated even if Foley were a first-time DWI
offender. Judge Motyka pointed out that Foley's blood alcohol level
was extremely high, that Foley was driving with a revoked driver's
license, that he went down the highway the wrong way, that he almost
struck another motorist (Stoskopf), and that he was "totally
oblivious to what [was] going on".
Based on the fact that Foley had repeatedly driven while
intoxicated and had repeatedly driven while his license was
suspended or revoked, Judge Motyka concluded that "[Foley's]
rehabilitation is not ... feasible. ... [I]t's just not going to
happen." The judge declared that, "at this point, ... isolation is
the [primary] Chaney criterion. ... [T]hat's the one that protects
the public and saves [Foley's] life, perhaps." [Fn. 6]
After discussing the various Chaney sentencing criteria,
and after reviewing this court's decision in White v. State [Fn.
7], Judge Motyka concluded, based on "Mr. Foley's record and [his]
driving in this case", that Foley was a "worst offender" for
sentencing purposes. The judge recognized that, even though he
found Foley to be a worst offender, he was not obliged to sentence
Foley to the 5-year maximum term. However, Judge Motyka concluded
that a 5-year sentence was necessary in Foley's case:
The Court: [I am] left with the feeling
that, sooner or later, Mr. Foley is going to get out, and Mr. Foley
is going to drink again, and Mr. Foley is going to drive again. He
has consistently driven while his license is revoked. I can't stop
him, and I don't believe one [or] two years of suspended time is
going to make a difference. For that reason, [the] defendant is
ordered into the care and custody of the Commissioner of the
Department of Corrections for a period of 5 years.
Under Alaska law, a sentencing judge must find that a
defendant is a "worst offender" before the judge is authorized to
sentence the defendant to the maximum term of imprisonment. A "worst
offender" finding can be based either on the circumstances
surrounding the defendant's present offense, or on the defendant's
criminal history, or both. [Fn. 8] Here, Judge Motyka found that
Foley should be deemed a worst offender for both reasons.
In his brief to this court, Foley argues that Judge Motyka
should not have classified Foley as a worst offender. Relying on
Tate v. State [Fn. 9], Foley argues that the judge "placed
inordinate weight" on Foley's record of prior convictions.
In Tate, this court reduced the sentence of a first felony
offender convicted of second-degree (non-dwelling) burglary. We
concluded that the sentencing judge had placed inordinate weight on
the fact that Tate had committed a string of theft-related
misdemeanors during the two years preceding his felony offense:
Tate's misdemeanor record, given its continuous
nature and the short period of time between his most recent [prior]
offense and the instant [burglary], clearly warranted a
[significant] sentence [of imprisonment]. Nevertheless, Leuch [v.
State, 633 P.2d 1006, 1014 n.22 (Alaska 1981),] teaches that the
trial court should not impose substantial periods of imprisonment
on someone who has not [previously] been subjected to lesser periods
of imprisonment.
Tate, 711 P.2d at 540.
This passage lends some weight to Foley's argument. But
immediately after the quoted passage, the Tate court added a
clarifying footnote:
In State v. Graybill, 695 P.2d 725 (Alaska
1985), the supreme court affirmed a composite [sentence of] seven
years with five and one-half years suspended imposed on a
misdemeanant convicted of twenty fish and game violations. Id. at
731. The defendant had a twenty-year record of fish and game
violations ... and was on probation at the time he committed the
twenty offenses for which he was sentenced. Graybill's relative
maturity, the length of his criminal record[,] and his established
immunity from rehabilitation serve to distinguish Graybill's case
from Tate's.
Tate, 711 P.2d at 540 n.2 (emphasis added). [Fn. 10]
Foley is likewise a mature defendant with a lengthy record
of convictions and seeming "immunity from rehabilitation". But
unlike the defendant in Graybill, whose record consisted of fish and
game violations, Foley's record is replete with convictions for
driving while intoxicated an offense which, as the facts of this
case illustrate, poses a significant danger to the life and safety
of others.
We recognize that Foley's past DWI convictions have, to
some extent, already been used to increase his sentence: he stands
convicted of a class C felony (rather than a class A misdemeanor)
because of his two other DWIs within the preceding five years. But
Foley's record consists of more than the two prior DWIs required for
a felony charge. As explained above, Foley has seven prior
convictions for this crime, as well as another five convictions for
driving while his license was suspended, and another conviction for
hit and run. Despite the fact that all of these convictions were
misdemeanor convictions, we conclude that Judge Motyka could
properly place substantial weight on Foley's record.
Foley points out that his 5-year sentence substantially
exceeds the 360-day minimum sentence that applies to his offense
under AS 28.35.030(n)(1)(C). [Fn. 11] But 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. 12] Judge Motyka found that Foley was among the worst
offenders, and the record supports that finding.
Foley also points out that his sentence exceeds the 3-year
presumptive term that would apply if he were a third felony
offender. [Fn. 13] But this presumptive term "represents the
legislature's judgement as to the appropriate sentence for a typical
third felony offender who commits a typical act [within the
definition of the offense]." [Fn. 14] Judge Motyka found that
Foley's offense was aggravated, even without consideration of his
prior convictions.
Moreover, Judge Motyka found, based on Foley's extensive
record of DWIs and related driving offenses, that Foley could
neither be rehabilitated nor deterred. This finding is supported
by the record. Given this finding, Judge Motyka could properly
conclude that Foley's lengthy series of driving offenses, although
misdemeanors, distinguished Foley "from the typical [third felony]
offender ... envisioned by the legislature when it established the
presumptive terms." [Fn. 15]
When a sentence is challenged on the ground that it is
excessive, we are to uphold the sentence unless we are convinced
that it is clearly mistaken. [Fn. 16] Having reviewed the record
in Foley's case, we conclude that the record (1) supports Judge
Motyka's finding that Foley is a worst offender and (2) supports
Judge Motyka's decision to sentence Foley to the 5-year maximum term
for his offense.
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.030(n).
Footnote 2:
AS 28.35.030(n); AS 12.55.125(e).
Footnote 3:
See AS 12.55.145(a)(1)(A) (a prior conviction does not alter
a defendant's presumptive sentencing status if 10 years or more has
elapsed between the defendant's unconditional discharge from the
immediately preceding felony and the commission of the current
offense unless the prior conviction was for an unclassified or class
A felony).
Footnote 4:
See AS 12.55.155(c)(21).
Footnote 5:
See Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981);
Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983). The
Austin rule is now codified in AS 12.55.125(k).
Footnote 6:
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); see
also AS 12.55.005.
Footnote 7:
969 P.2d 646 (Alaska App. 1998) (upholding a maximum sentence
for felony driving while intoxicated).
Footnote 8:
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Footnote 9:
711 P.2d 536 (Alaska App. 1985).
Footnote 10:
See also Pointer v. Anchorage, 812 P.2d 232, 234 (Alaska App.
1991), where we upheld the defendant's classification as a "worst
offender" in large measure because of the defendant's "extensive
misdemeanor record".
Footnote 11:
This section of the statute establishes a 360-day minimum
sentence for defendants convicted of felony DWI if they have
previously been convicted four or more times within the preceding
ten years.
Footnote 12:
Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App. 1983).
Footnote 13:
See AS 12.55.125(e)(2).
Footnote 14:
Mullin v. State, 886 P.2d 1323, 1328 (Alaska App. 1994). See
Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App. 1982).
Footnote 15:
Looney v. State, 826 P.2d 775, 780 (Alaska App. 1992).
Footnote 16:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
