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Richardson v. State (5/17/2002) ap-1803
Richardson v. State (5/17/2002) ap-1803
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
ROBERT E. RICHARDSON, )
) Court of Appeals No.
A-8124
Appellant, )
Trial Court No. 3AN-S00-6085 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1803 - May 17, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael J.
Wolverton, Judge.
Appearances: Andrew J. Lambert, Kalamarides
& Lambert, 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.
Robert E. Richardson was convicted of murder in the
second degree and assault in the first degree for an incident
where, after being warned not to drive, he drove while
intoxicated. Richardson crossed the center line and struck
another vehicle, killing two people and seriously injuring two
others. Superior Court Judge Michael J. Wolverton sentenced
Richardson to twenty-eight years of imprisonment with fifteen
years suspended. He also ordered Richardsons drivers license
revoked for a period of twenty years, running from the date of
the offense. Richardson does not appeal his sentence of
imprisonment to this court but rather contends that Judge
Wolvertons revocation of his drivers license was excessive. We
affirm.
On July 12, 2000, Richardson went off the road and
drove his truck into a pond of water located off Portage Valley
Road. Richardson telephoned a tow truck driver to pull him out
of the pond. When the tow truck driver arrived at the scene, he
pulled Richardsons truck out of the water. But, from his contact
with Richardson, he concluded that Richardson was too drunk to
drive and told him not to drive. In addition, an employee of the
National Park Service arrived at the pond and also told
Richardson that he was too drunk to drive.
Richardson agreed that he was too drunk to drive. He
told the park service employee and the tow truck driver that he
needed to move his truck to a camping area along Portage Valley
Road where he could sleep off the effects of his drinking. The
tow truck driver and the park service employee led Richardson to
the camping area and Richardson pulled off into the area.
The tow truck driver left the camping area but the park
service employee waited for a few minutes to make sure that
Richardson did not try to drive. But after a while, the park
service employee left. Shortly thereafter, Richardson left the
camping area and proceeded down Portage Valley Road. As
Richardson drove down the road, he crossed the center line,
striking a car. The car was driven by Kevin Blake, age sixteen.
The passenger sitting behind Blake was Kenneth Kramer, age
eleven. The collision killed both of the boys. Blakes
grandparents, David Glasen and Patsy Glasen, were on the other
side of the car and survived the collision, but both were
seriously injured.
Richardson entered a plea of no contest to an
information charging one count of murder in the second degree,1
consolidating the deaths of Kevin Blake and Kenneth Kramer. He
also pled no contest to one count of assault in the first
degree,2 encompassing the injuries to the Glasens.
Richardson was thirty-six years old at the time of
sentencing. He had a prior assault conviction from 1985.
Richardson concedes that this assault conviction apparently arose
out of the consumption of alcohol because alcohol screening was
required as part of his sentence. The court sentenced Richardson
to 180 days of probation and a $25 fine for this conviction. In
1993, Richardson was convicted of bank larceny and sentenced to
three years of probation and a $3,000 fine. Between 1992 and
1997, Richardson had three traffic violations: one for improper
backing and two for speeding.
Richardson contends that Judge Wolverton failed to make
sufficient findings to support the twenty-year revocation of his
drivers license. Richardson concedes he is an alcoholic, but he
points out that, at least until the events of this case, he had
been sober for the prior twelve years. Richardson also points
out that he has no prior convictions for driving while
intoxicated, reckless driving, or similar driving offenses. He
argues that his prior history does not indicate that he will pose
a danger to the public in the future.
Before we address the merits of these contentions, we
must first address a legal issue raised by the state. The state
asserts that Richardson does not have the right to appeal this
aspect of his sentence and that we have no jurisdiction to decide
Richardsons case.
The states jurisdictional objection to Richardsons
appeal
The states jurisdictional argument is based
on two statutes: AS 12.55.120, which governs a
defendants right to appeal a sentence, and AS
22.07.020(b), which defines this courts authority to
hear a sentence appeal.
Alaska Statute 12.55.120(a) states that, with
certain exceptions not pertinent here, felony
defendants can appeal their sentences if the sentences
require service of more than two years of imprisonment:
(a) A sentence of imprisonment lawfully
imposed by the superior court for a term or
for aggregate terms exceeding two years of
unsuspended incarceration for a felony
offense or exceeding 120 days for a
misdemeanor offense may be appealed to the
court of appeals by the defendant on the
ground that the sentence is excessive . . . .
The legislature has placed a corresponding
limit on this courts authority to hear
sentence appeals. Alaska Statute
22.07.020(b) states:
(b) Except as limited in AS 12.55.120,
the court of appeals has jurisdiction to hear
appeals of unsuspended sentences of
imprisonment exceeding two years for a felony
offense or 120 days for a misdemeanor offense
imposed by the superior court on the grounds
that the sentence is excessive, or a sentence
of any length on the grounds that it is too
lenient. The court of appeals, in the
exercise of this jurisdiction, may modify the
sentence as provided by law and the state
constitution.
The state construes AS 12.55.120(a)
to mean that the defendants term of
imprisonment is the only component of a
sentence that can be appealed. In other
words, the state argues that the legislature
has forbidden defendants from challenging the
amounts of their fines, the conditions of
their probation, or as in Richardsons case
the terms of their license revocations. And,
based on this interpretation of AS
12.55.120(a), the state argues that AS
22.07.020(b) forbids this court from
reviewing any component of a sentence except
a term of imprisonment that exceeds two
years.
We rejected a related argument in
Hillman v. Anchorage.3 The defendant in
Hillman was convicted of driving while
intoxicated and, as a component of his
sentence, the district court ordered
forfeiture of his vehicle.4 Hillman appealed
this forfeiture, contending that it was
illegal.5 (Specifically, Hillman argued that
his vehicle was worth so much money that the
forfeiture constituted an excessive fine,
which is prohibited by both the federal and
state constitutions.6)
The Municipality of Anchorage
responded that we had no authority to review
the district courts decision.7 The
municipality based its argument on AS 22.07.
020(c), a sibling provision of the statute at
issue in the present case.8
Alaska Statute 22.07.020(c) governs
this courts jurisdiction over sentence
appeals from the district court. The statute
declares that this court has jurisdiction to
review . . . (2) the final [sentencing]
decision of the district court . . . if the
sentence exceeds 120 days of unsuspended
incarceration. Because Hillman received a
jail sentence of only sixty days to serve,
the municipality argued that we had no
authority to review the forfeiture of
Hillmans vehicle or, indeed, any aspect of
his sentence.9
We rejected this argument because
it was inconsistent with the legislative
history of AS 22.02.070(c).10 We also noted
that the municipalitys interpretation of the
statute would lead to absurd results (for
example, our inability to review a district
courts decision to sentence a defendant to 30
days in jail for negligent driving, an
offense that is not punishable by
imprisonment).11
We concluded instead that AS
22.07.020(c) was intended merely to
complement[] the . . . restrictions on
district court sentence appeals embodied in .
. . the sentence appeal statute, AS
12.55.120.12 That is, the legislatures
intention was to restrict our sentence appeal
jurisdiction by incorporat[ing] the
limitation placed on district court sentence
appeals by AS 12.55.120(d).13 The AS
12.55.120(d) limitation is that a defendant
can appeal [a] sentence of imprisonment
lawfully imposed by the district court only
if the defendant received a term or . . .
aggregate terms exceeding 120 days of
unsuspended incarceration. Because Hillman
claimed that the forfeiture provision of his
sentence was illegal, his appeal was not a
sentence appeal within the meaning of this
statute.14 We therefore concluded that we
had jurisdiction to review and decide
Hillmans claim.15
Richardsons case is different from
Hillman because Richardson does not claim
that the revocation of his drivers license
was illegal. Rather, he claims that the
superior court failed to adequately justify a
twenty-year license revocation under the
Chaney sentencing criteria.16 That is,
Richardson claims that the twenty-year
revocation constitutes an abuse of sentencing
discretion. Thus, Richardsons appeal is a
true sentence appeal as we defined that term
in Rozkydal v. State.17 Because of this,
Hillman does not provide a direct answer to
the states claim that Richardson is
prohibited from challenging the license
revocation on appeal.
However, Hillman suggests a major
component of our answer to the states
contention. In Hillman, we held that
AS 22.07.020(c) the statute defining our
jurisdiction to hear district court sentence
appeals was intended merely to incorporate
the limitation placed on district court
sentence appeals by AS 12.55.120(d).18 We
reach the same conclusion with respect to the
sibling provision at issue in Richardsons
case AS 22.07.020(b), the statute that
defines our jurisdiction to hear superior
court sentence appeals. We conclude that AS
22.07.020(b) was intended to incorporate the
limitation on superior court sentence
appeals codified in AS 12.55.120(a).
Thus, the ultimate question is:
what limitations does AS 12.55.120(a) place
on sentence appeals from the superior court?
The pertinent portion of the statute declares
that a defendant can appeal [a] sentence of
imprisonment lawfully imposed by the superior
court . . . for a felony offense if the defen
dant received a term or . . . aggregate terms
exceeding two years of unsuspended
incarceration.19 The statute discusses only
sentence[s] of imprisonment.20 It does not
mention a defendants ability to appeal the
amount of a fine, the conditions of probation
imposed by the sentencing judge, or the term
of a license suspension.
We therefore are faced with at
least two competing interpretations of this
statute. The interpretation proposed by the
state is that felony defendants have no right
to appeal any aspect of their sentences other
than unsuspended terms of imprisonment
exceeding two years. The alternative
interpretation is that, assuming a felony
defendant meets the requirement specified in
the statute (an unsuspended term of
imprisonment exceeding two years), the
defendant retains the right to appeal any
aspect of the sentence. For the reasons that
follow, we conclude that this second
interpretation is more convincing. First, we note that
in 1995, when the legislature amended AS 12.55.120 and AS
22.07.020 to include the current restrictions on sentence
appeals,21 this court had previously decided several appellate
challenges to aspects of criminal sentences other than the term
of imprisonment. For example, in Dodge v. Anchorage,22 we
reviewed a sentencing courts decision to revoke a defendants
drivers license for life.23 In Graybill v. State,24 we reviewed
the defendants claim that the sentencing judge revoked his big-
game guide license for an excessive period of time.25 And in
McCann v. State26 and Ashton v. State,27 we reviewed defendants
claims that their fines were excessive.28
The legislative history of AS
12.55.120 is silent regarding this history of
sentence appeal litigation involving matters
other than terms of imprisonment. As we
noted in Rozkydal, when the legislature
discussed the proposed amendments to
AS 12.55.120 and AS 22.07.020, the
legislature focused primarily on the length
of prison sentences.29 The legislatures
concern was to spare state government the
expense of litigating sentence appeals
involving lesser sentences when,
statistically, the overwhelming majority of
these appeals ended in affirmance.30 But the
legislature did not express a desire to limit
sentence appeals to the single issue of
whether the defendants unsuspended term of
imprisonment was excessive.
Moreover, the states suggested
interpretation of AS 12.55.120(a) would
present many administrative difficulties.
Often, defendants who receive unsuspended
term of imprisonment exceeding two years will
challenge not only the length of the prison
term but also other aspects of their
sentences. Under the states interpretation,
this court would be limited to deciding the
defendants challenge to the prison term and
then we would have to transfer all remaining
issues to the supreme court under Alaska
Appellate Rule 215(a).31 In the absence of
some affirmative indication that this is what
the legislature wanted, we doubt that the
legislature intended to make the decision of
a sentence appeal so difficult. For
these reasons, we reject the narrow
interpretation of AS 12.55.120(a) proposed by
the state. Rather, we hold that felony
defendants who receive unsuspended terms of
imprisonment exceeding two years can appeal
any aspect of their sentences.
The merits of Richardsons
appeal
We conclude that Judge Wolvertons
findings in support of his sentence were
sufficient to support his decision to order
Richardsons license to be revoked for twenty
years. Judge Wolverton ordered Richardsons
license revocation to begin from the date of
his offense. As a practical matter, much of
the time that Richardsons license is revoked
will pass while Richardson is in prison and
will have little impact on him during that
time. Of course a substantial portion of the
license revocation will also take place after
Richardson is released from prison. But
given the seriousness of Richardsons offense,
restricting his license for this time appears
to be a reasonable exercise of judicial
authority. Although Richardsons former long
period of sobriety is commendable, the facts
of Richardsons case are particularly
egregious and justify imposing a substantial
license revocation to protect the public.
Richardson was repeatedly warned that he was
too intoxicated to drive. Nevertheless, he
chose to drive, killing two young boys and
seriously injuring two other people.
We conclude that these facts and
Judge Wolvertons general analysis in imposing
Richardsons sentence justified the twenty-
year license revocation. We conclude that
the sentence is not clearly mistaken.32
The sentence is AFFIRMED.
_______________________________
1 AS 11.41.110(a)(2).
2 AS 11.41.200(a)(1).
3 941 P.2d 211 (Alaska App. 1997).
4 Id. at 212.
5 Id. at 215-17.
6 See U.S. Const. amend. VIII; Alaska Const. art. I, 12.
7 Id. at 212-15.
8 Id. at 212.
9 Id.
10Id. at 214-15.
11Id. at 215.
12Id. at 212.
13Id. at 215.
14See Rozkydal v. State, 938 P.2d 1091, 1093-95 (Alaska
App. 1997) (construing the term sentence appeal to
include only those appeals in which the defendant
concedes the lawfulness of the sentence but argues that
it constitutes an abuse of sentencing discretion).
15Hillman, 941 P.2d at 215.
16State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). The
sentencing criteria are now codified at AS 12.55.005.
17938 P.2d 1091, 1093.
18Id. at 215.
19AS 12.55.120(a).
20Id.
21See ch. 79, 7-8, 11-12 SLA 1995.
22877 P.2d 270 (Alaska App. 1994).
23Id. at 273.
24672 P.2d 138 (Alaska App. 1983), revd on other grounds,
695 P.2d 725 (Alaska 1985).
25Id. at 143 n.5.
26817 P.2d 484 (Alaska App. 1991).
27737 P.2d 1365 (Alaska App. 1987).
28McCann, 817 P.2d at 487; Ashton, 737 P.2d at 1366 n.1.
Compare Haggren v. State, 829 P.2d 842, 845 (Alaska
App. 1992) (where we held that a defendant had no right
to appeal the amount of his fine or the amount of a
property forfeiture when the defendant was not
sentenced to a term of imprisonment of at least forty-
five days (which, at that time, was the minimum term of
imprisonment required to trigger the right of sentence
appeal)).
29See Rozkydal, 938 P.2d at 1096-97.
30See id. at 1096-97.
31This rule allows a defendant to petition the supreme
court to review any sentencing issue that is not
appealable.
32McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
