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Fine v State (4/27/01) ap-1736
Fine v State (4/27/01) ap-1736
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
RAY WILLIAM FINE, )
) Court of Appeals No. A-7828
Appellant, ) Trial Court No. 3AN-S99-5997 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1736 - April 27, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Rex Lamont Butler, Rex Lamont
Butler & Associates, Anchorage, for Appellant. Leonard M. Linton,
Jr., 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.
COATS, Chief Judge.
Ray William Fine was convicted of criminally negligent
homicide, assault in the third degree, and driving while
intoxicated. Superior Court Judge Larry D. Card sentenced Fine to
nine years with two years suspended, revoked his driver's license
for the remainder of Fine's life, and ordered him to pay $57,804 in
restitution. Fine appeals, arguing his sentence is excessive. We
agree with Fine and remand the case for resentencing.
On May 31, 1999, driving while intoxicated, Ray William
Fine crossed over the center line and struck a motorcycle driven by
Lyman Smith, who was accompanied by his ten-year-old grandson, Derek
Flensburg. Smith died of his injuries; Flensburg fractured his left
hand.
A police officer transported Fine to the hospital for
mandatory blood and urine tests that revealed Fine had a blood
alcohol level of .08. Fine entered into a plea agreement in which
he pled no contest to criminally negligent homicide, a class C
felony, assault in the third degree, also a class C felony, and
driving while intoxicated, a class A misdemeanor.
Fine was twenty-nine years old at the time of the
collision. He had a prior felony conviction for a first-degree
burglary he committed in Hawaii. According to the Hawaii
presentence report, Fine, then age nineteen, entered a residence in
the early morning hours. He took a watch and $230 in cash from a
wallet and then fell asleep in the bedroom where the owners of the
home were sleeping. The owners found Fine asleep on the floor.
Fine's blood alcohol was tested at .064. Fine reported to the
Hawaii court that he was drunk at the time of the offense. The
Salvation Army evaluated Fine as part of the presentence
investigation and concluded that he had a problem with abuse of
alcohol. In December 1991, the court sentenced Fine to a deferred
sentence. But he failed to comply with his conditions of probation
and the court imposed a judgment of conviction in 1993 and sentenced
Fine to a year to serve followed by five years of probation. The
record does not show precisely why the Hawaii court revoked Fine's
deferred sentence. In addition to the prior Hawaii burglary
conviction, Fine had committed two traffic violations in Alaska:
improper use of or not wearing a safety belt, and speeding ten miles
over the speed limit.
In the present case, Fine reported to the presentence
report author that he first began to drink at the age of fifteen on
an experimental basis. He stated that he occasionally drank through
high school but that alcohol never became a problem for him. He
reported that his current use of alcohol consists of occasional
drinking at birthdays and selected holidays.
Because of the prior Hawaii burglary conviction, Fine was
a second-felony offender for purposes of presumptive sentencing and
therefore faced a two-year presumptive sentence on the two class C
felonies. [Fn. 1] In addition, Superior Court Judge Larry D. Card
found two aggravating factors: that Fine's conduct created a risk
of imminent physical injury to three or more persons and that Fine's
prior felony was a more serious offense than his present offense.
[Fn. 2] In sentencing Fine, Judge Card pointed out that there was
no evidence that Fine had engaged in "hugely erratic driving" and
that Fine's blood alcohol level was not particularly high. He
pointed out that juries in similar cases tend to convict the
defendant of criminally negligent homicide rather than the more
serious crime of manslaughter, a class A felony. He considered the
fact that the legislature had enacted legislation making criminally
negligent homicide a class B felony and that the effective date of
that law was six days after Fine's offense. He considered Fine's
presentence report in the 1991 Hawaii burglary offense and the facts
of the present offense and concluded that Fine had a long-term
untreated problem of abusing alcoholic beverages, which made him a
danger to society.
Judge Card imposed a sentence of five years with one year
suspended on the conviction for criminally negligent homicide and
imposed a consecutive sentence of four years with one year suspended
on the conviction for assault in the third degree. He also imposed
a concurrent sentence of one year for driving while intoxicated.
Thus, Fine's composite sentence is nine years with two years
suspended.
Judge Card recognized that the sentence that he imposed
exceeded the five- year maximum sentence for Fine's most serious
offense, a class C felony. Therefore, under Mutschler v. State,
[Fn. 3] Judge Card was expressly required to find that the aggregate
term of imprisonment was necessary in order to protect the public.
[Fn. 4] Judge Card made that finding, concluding that Fine was a
long-term untreated abuser of alcohol who was a danger to the
public. He pointed out that Fine had failed to satisfactorily
complete his probation for the Hawaii burglary conviction. Judge
Card imposed restitution in the amount of $57,804 and required Fine
to undergo a substance abuse evaluation while incarcerated and to
abide by any of the Department of Correction's recommendations, to
include in-patient treatment for up to one year. In addition, Judge
Card revoked Fine's license to drive for the remainder of his life.
Fine appeals to this court, arguing his sentence is
excessive. We agree. In order to impose a sentence in excess of
the five-year maximum sentence for Fine's most serious offense,
Judge Card had to find that such a sentence was necessary to protect
the public. [Fn. 5] Judge Card's conclusion that Fine was a chronic
alcohol abuser who was a danger to the public is not supported by
the record. Judge Card appeared to accept that Fine had not engaged
in grossly erratic driving before the collision and that Fine's
blood alcohol level was not particularly high. He concluded Fine's
offense was properly charged that Fine committed criminally
negligent homicide rather than the more serious offense of
manslaughter. Fine has no history of driving while intoxicated or
other alcohol-related offenses except for his 1991 Hawaii burglary
conviction. The facts of the Hawaii conviction and Fine's current
offense suggest that Fine might have had a continuing problem with
alcohol abuse that could have made him dangerous. This history
certainly supports Judge Card's emphasis on diagnosis and treatment.
But the record before this court is insufficient to support Judge
Card's finding that Fine has a long-term history of alcohol abuse
that made him a threat to the public. We therefore conclude that
Judge Card's finding that it was necessary to impose a sentence of
over five years of imprisonment to protect the public from Fine is
not supported by the record.
Judge Card also appears to have placed great emphasis on
the legislature's reclassification of criminally negligent homicide
from a class C felony to a class B felony. Although Judge Card
could properly consider this legislation as a recent expression of
legislative intent, [Fn. 6] Fine was entitled to be sentenced under
the law that applied to him at the time of his offense.
We accordingly conclude that the sentence that Judge Card
imposed is excessive. Judge Card should not have imposed a sentence
of actual time to serve that exceeded five years of imprisonment,
the maximum sentence for criminally negligent homicide at the time
of Fine's offense. We find no basis to conclude that it is
necessary to incarcerate Fine for a period of time longer than five
years in order to protect the public.
We also agree with Fine that the lifetime revocation of
his driver's license is excessive. Alaska Statute 28.15.181
authorizes a court to revoke the driver's license of a person
convicted of certain offenses including driving while intoxicated
and negligent homicide resulting from driving a motor vehicle. In
Dodge v. Anchorage, [Fn. 7] we pointed out that this statute sets
out the required minimum periods of revocation but does not set any
maximum. [Fn. 8] We concluded that the statute "authorizes a court
to revoke a driver's license for any period of years, including a
lifetime revocation." [Fn. 9] Therefore, Judge Card's revocation
of Fine's driver's license for life does not exceed the period of
revocation authorized by statute. But, in Dodge we discussed the
circumstances under which a court can impose a lifetime revocation
of a driver's license. We stated that "a court should impose a
lifetime revocation of a driver's license only in extreme cases when
a court concludes that such a revocation is required to protect the
public." [Fn. 10]
In Dodge we concluded that a lifetime revocation of
Dodge's driver's license was defensible. But Dodge was an offender
who had "a twenty-year history of repeated offenses involving the
operation of motor vehicles while intoxicated." [Fn. 11] Dodge's
numerous offenses had resulted in the death of one person, and he
had clearly endangered numerous others. Dodge had established
himself as a chronic DWI offender who was a worst offender and who
was clearly a danger to the public. [Fn. 12]
Fine simply has no similar record. Fine's blood alcohol
level at the time of his current offense was less than .10 percent.
He has no prior record of driving while intoxicated or similar
offenses. There is simply no basis to conclude that it is necessary
to revoke Fine's license for the remainder of his life. To
authorize this punishment for Fine would authorize such an extreme
punishment for anyone else with a similarly ambiguous criminal
history.
We conclude that there is no basis to revoke Fine's
driver's license for the rest of his life. Such a punishment should
be reserved for chronic offenders, such as Dodge, whose records
demonstrate that they never should be allowed to drive a motor
vehicle again. We accordingly vacate Judge Card's order revoking
Fine's driver's license for life and remand to the trial court for
further consideration of this issue.
In summary, we conclude that the sentence that Judge Card
imposed is clearly mistaken. [Fn. 13] The trial court is directed
to impose a composite sentence of actual imprisonment not exceeding
a term of five years. The court may, in its discretion, impose a
suspended period of imprisonment. Additionally, the trial court's
revocation of Fine's driver's license for the remainder of his life
is VACATED. The trial court is directed to reconsider this issue
on remand.
REMANDED.
FOOTNOTES
Footnote 1:
See AS 12.55.125(e)(1).
Footnote 2:
See AS 12.55.155(c)(6); (c)(7).
Footnote 3:
560 P.2d 377 (Alaska 1977).
Footnote 4:
See id., at 380-81; Marino v. State, 934 P.2d 1321, 1334
(Alaska App. 1997).
Footnote 5:
See Mutschler, 560 P.2d at 380-81.
Footnote 6:
See Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980);
Reynolds v. State, 664 P.2d 621, 630 (Alaska App. 1983).
Footnote 7:
877 P.2d 270 (Alaska App. 1994).
Footnote 8:
See id. at 272-73.
Footnote 9:
Id. at 273.
Footnote 10:
Id.
Footnote 11:
Id.
Footnote 12:
See id. at 272, 273.
Footnote 13:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
