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Coles v. State (2/14/2003) ap-1855
Coles v. State (2/14/2003) ap-1855
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
SHANE DANIEL COLES, )
) Court of Appeals No.
A-8195
Appellant, )
Trial Court No. 3AN-00-10245 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1855 February 14, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy,
Judge.
Appearances: Jane M. Banaszak, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Erin E.
White, 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.
Shane Daniel Coles appeals the 5-year sentence he
received for felony driving while intoxicated. A 5-year term is
the maximum term for this offense. Under Alaska law, before a
sentencing judge can impose a maximum sentence, the judge must
find that the defendant is a worst offender as that term is
defined in State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975)
and Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Coles asserts that his sentencing judge erred in finding him to
be a worst offender. We conclude that the record supports the
sentencing judges finding, and we therefore affirm Coless
sentence.
On December 2, 2000, at one of this citys busiest
intersections the corner of Lake Otis Parkway and Tudor Road an
Anchorage police officer observed a black truck speed through the
intersection against the red light. The truck almost hit the car
that was in front of the officers patrol vehicle. The truck then
made a wide turn onto Tudor, forcing another vehicle to stop
suddenly to avoid a collision. After this, the truck changed
lanes and ran up on the curb. When the officer initiated a
traffic stop, the driver of the truck pulled completely onto the
sidewalk with all four tires rather than turning into one of
three nearby driveways.
Coles was the driver of this truck. The officer had to
ask Coles for identification four times. Coles eyes were half-
closed, and he had a strong odor of alcoholic beverages. Despite
Coless claim that he had drunk only one beer, he failed several
field sobriety tests, and a subsequent Intoximeter test showed
that his blood alcohol level was .137 percent.
Based on this incident, and based on his prior
convictions for driving while intoxicated, Coles was charged with
felony driving while intoxicated.1 He ultimately pleaded no
contest to this charge.
Felony DWI is a class C felony.2 Because Coles had one
prior felony conviction, he faced a 2-year presumptive term.3
(Coless felony conviction was a 1998 Utah conviction for criminal
mischief. Coles broke into a truck, vandalized it, and stole
property from the vehicle.) And, because Coles had four or more
prior DWI convictions, he was subject to a mandatory minimum
sentence of 360 days imprisonment.4
Coles was 32 years old at the time of his current
offense. He had eight prior convictions for driving while
intoxicated during the preceding ten years (seven convictions
from the State of Utah and one from the State of Idaho). His
drivers license had been suspended or revoked numerous times.
Based on his prior DWI convictions, Coles conceded
aggravating factor AS 12.55.155(c)(21) a history of similar
offenses. Because of this aggravating factor, the sentencing
judge Superior Court Judge pro tempore Sigurd E. Murphy was
authorized to consider a sentence up to the 5-year maximum term
of imprisonment for a class C felony.5
At the sentencing hearing, the prosecutor asked Judge
Murphy to find that Coles was a worst offender6 based on Coless
lengthy record of DWI convictions, his long-term abuse of
alcohol, and his failure to benefit from past counseling and
treatment efforts. The prosecutor argued that Coles could not be
rehabilitated or deterred, that Coles needed to be isolated to
protect the public, and that Coles should therefore be sentenced
to the 5-year maximum term.
Coless attorney responded that Coles had made strides
toward rehabilitation since being jailed. Coles had performed
approximately 640 hours of community service while awaiting
sentencing, he had completed classes on anger management,
chemical dependency, and denial, and he had tried (apparently
unsuccessfully) to initiate an Alcoholics Anonymous group in
jail.
The defense attorney conceded that Coles had not
completed the rehabilitative programs that were imposed as
components of his past DWI sentences. But she asserted that
Coles was discharged from these programs, not because of lack of
interest or effort, but because, in Utah, a person is
disqualified from participating in these treatment programs if
the person falls behind in making any court-ordered payments.
(By the time of Coless most recent out-of-state DWI conviction,
Coles had amassed over $32,000 in debt in the form of unpaid
child support and court fines.)
Judge Murphy concluded that the States position was
supported by the record. The judge noted that Coless pre-
sentence reports from Utah contained comments from all sorts of
people ... that [Coles was] ordered to do things [that he] didnt
do:
The Court: You were ordered to
participate in drug and alcohol counseling,
to find and maintain regular employment, to
pay your fines, [and] not to have any new
violations of law. [But] you had new
violations of the law, you failed to pay your
fines, you failed to pay restitution, and
[failed] to abide by the conditions of
probation.
In particular, Judge Murphy noted,
the Utah courts had repeatedly tried to
provide Coles with rehabilitative treatment,
but with no resulting change in his behavior.
Instead, Coles had repeated[ly] fail[ed] to
abide by court orders ... to participate in
substance abuse counseling. Judge Murphy
rejected Coless argument that financial
problems had prevented him from completing
the court-ordered treatment programs. The
judge stated:
While ... Coles argue[s] that his deep
financial problems ... prevented him from
engaging in meaningful alcohol rehabilitation
programs, the court ... find[s] [no] credible
evidence to support [this assertion,] and ...
find[s] that Coles has on numerous occasions
denied that he had an alcohol problem and has
repeatedly failed to address [this problem,
despite] having been given many
opportunities.
Judge Murphy acknowledged that
Coles had done well during the months that he
spent in custody awaiting sentencing, but the
judge nevertheless concluded that Coles
remained a danger to society. Judge Murphy
declared that the two most important
sentencing goals in Coless case were
deterrence and isolation because Coles had
failed to benefit from chance after chance
after chance of rehabilitation. Coless
lengthy history of DWI offenses and failed
treatment convinced Judge Murphy that Coles
had no ability to stop himself from driving
while intoxicated, and that placing Coles on
probation would not protect the public. The
judge declared that Coles poses an extremely
high risk to the community [and] has very
little chance, if any, for rehabilitation.
Based on all this, Judge Murphy
concluded that Coles was indeed a worst
offender for sentencing purposes, and he
sentenced Coles to the maximum term of
imprisonment: 5 years, all to serve.
On appeal, Coles asserts that Judge
Murphy erred when he found Coles to be a
worst offender. Coles argues that Judge
Murphy erroneously equated Coless failure to
successfully recover from alcohol addiction
with an inability to be rehabilitated.
Coles renews his argument that
financial problems prevented him from
participating in past court-ordered
treatment. But, as explained above, Judge
Murphy expressly rejected this argument
because Coles presented no evidence to
support it. Judge Murphy also noted that
Coles has a history of ignoring his
responsibilities: documents from Coless most
recent DWI conviction in Utah indicated that
Coles owed a total of $32,000 in child
support to three women.
Coles also renews his argument that
his conduct while jailed for his current
offense shows that he has good rehabilitative
potential. But, as explained above, Judge
Murphy discounted Coless good behavior in
jail. Although he acknowledged that Coles
had done well in jail, he concluded that
Coless past history of repeated DWI offenses
and failed treatment while on probation was a
better indicator of Coless level of
dangerousness.
Finally, Coles argues that he
committed the majority of his prior DWI
offenses when he was a young man. Coles is
referring to the fact that six of his prior
convictions occurred in the years 1991
through 1995, when Coles was between the ages
of 23 and 27. But Coles committed his
seventh DWI in July 1998 and his eighth DWI
several months later, in November 1998, when
he was 30. Coles moved to Alaska in October
2000, and within two months he had committed
the present offense, his ninth DWI, at the
age of 32. Based on this chronology, Judge
Murphy could reasonably conclude that Coles
was a continuing danger to the public.
A defendant can be classified as a
worst offender based either on the
circumstances surrounding the defendants
present offense, or on the defendants
criminal history, or both.7 Here, Coles has
a decade-long history of nine DWI
convictions, and his present offense was
arguably more serious than the typical DWI.
Coles sped through a red light and almost
struck a car, then turned wide into the cross-
street and almost struck another car. It is
true that, fortuitously, Coles did not injure
anyone, but this does not mitigate his
offense. The offense of DWI does not require
proof of injury; thus, if Coles had caused
injury, his offense would have been
aggravated under AS 12.55.155(c)(1) assuming
that he was not separately prosecuted for
assault or homicide.8
In Foley v. State, 9 P.3d 1038
(Alaska App. 2000), we upheld a sentencing
judges finding of worst offender under
similar circumstances: the defendants
current DWI offense involved dangerous
driving but no resulting injuries, and the
defendant had a history of seven prior DWI
convictions over the preceding fourteen
years.9 The sentencing judge concluded,
based on the defendants history of prior
convictions and failed rehabilitative
efforts, that the defendants rehabilitation
was just not going to happen, and that
isolation was the primary sentencing
criterion.10 We concluded that this record
supported the sentencing judges finding of
worst offender, and accordingly we affirmed
the defendants sentence of 5 years
imprisonment.11
Here, based on similar facts and,
arguably, a more egregious record of past
offenses, Judge Murphy found that Coless
potential for rehabilitation was very low,
that Coles could not be deterred by methods
short of imprisonment, and that he had to be
isolated to protect the public. The record
supports these findings. We therefore uphold
Judge Murphys finding that Coles was a worst
offender for sentencing purposes.
Based on this worst offender
finding, Judge Murphy was authorized to
sentence Coles to the maximum penalty
provided for felony DWI 5 years
imprisonment.12 Accordingly, we conclude
that Coless 5-year sentence is not clearly
mistaken.13
The sentencing decision of the
superior court is AFFIRMED.
_______________________________
1 AS 28.35.030(a) & (n).
2 AS 28.35.030(n).
3 AS 12.55.125(e)(2).
4 AS 28.35.030(n)(1)(C).
5 See AS 12.55.155(a)(1) and AS 12.55.125(e).
6 See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990)
(defining worst offender for sentencing purposes).
7 See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.
1990).
8 See Woods v. State, 667 P.2d 184, 187-88 (Alaska 1983)
(holding that, because the definition of sexual assault
does not require proof that the victim suffered injury,
the defendants infliction of injury is an aggravating
factor).
9 Foley, 9 P.3d at 1039-1040.
10Id. at 1040.
11Id. at 1042.
12See Foley, 9 P.3d at 1041-42.
13See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to affirm a
sentencing decision unless the decision is clearly
mistaken).
