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Smith v. State (01/09/2004) ap-1912
Smith v. State (01/09/2004) ap-1912
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
BYRON S. SMITH, )
) Court of Appeals No. A-
8510
Appellant, )
Trial Court No. 1KE-02-648 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1912 - January 9, 2004]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Michael A.
Thompson, Judge.
Appearances: Amanda M. Skiles, Law Office of
Dennis McCarty, Ketchikan, for Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Byron S. Smith appeals his conviction and sentence for
felony driving while intoxicated (DWI).1 Smith contends that he
was subjected to an illegal investigative stop, and that all
evidence flowing from that stop should have been suppressed. For
the reasons explained here, we hold that the investigative stop
was justified by the facts known to the police.
Smith also contends that his sentence is flawed because
the superior court, relying on Smiths prior felony DWI conviction
from Arkansas, ruled that Smith was a second felony offender for
presumptive sentencing purposes. Smith contends that the
Arkansas definition of felony DWI is significantly different from
the Alaska definition of felony DWI, and that therefore his
Arkansas conviction should not have been counted as a prior
felony. For the reasons explained here, we agree with Smith that
his Arkansas felony conviction should not have been treated as a
prior felony for presumptive sentencing purposes, and that Smith
therefore should have been sentenced as a first felony offender.
The investigative stop was supported by
reasonable suspicion to believe that Smith
was driving while intoxicated
At 8:18 p.m. on April 30th, 2002, the Ketchikan Police
Department received a telephone call reporting that there was an
intoxicated man getting into a white Toyota Tercel, Arkansas
license 599 GHN, on Mission Street near the Five and Dime store.
Officer Bryan Perez received this report, and he saw the Toyota
parked at the side of the road as he turned onto Mission Street.
As Officer Perez approached, the Toyota pulled away from the
curb. Officer Perez then pulled over the Toyota.
Officer Perez approached the vehicle and made contact
with Smith. After talking to Smith, Officer Perez determined
that Smith was intoxicated. He arrested him for driving while
intoxicated and transported him to the Ketchikan Police
Department, where Smith submitted to a breath test. The breath
test produced a reading of .225 percent breath alcohol
concentration.
Smith had four prior convictions in Arkansas for
driving while intoxicated. Three of these prior convictions were
misdemeanors, and one was a felony. Based on these prior
convictions, the State indicted Smith for felony DWI.
Smith filed a motion to suppress all of the evidence
that the police obtained during and after the investigative stop
of his car. He claimed that the anonymous phone call to the
police station did not provide reasonable suspicion to allow
Officer Perez to stop his car. The superior court denied Smiths
motion. Smith renews his argument on appeal.
Smiths case is controlled by Effenbeck v. State.2 In
Effenbeck, a police dispatcher received a call from an anonymous
informant who stated that a brown Ford, Alaska license number BJL-
777, stopped and bought fuel at a Union 76 station, then headed
north on the Kenai Spur Highway, and that the driver was
intoxicated.3 The dispatcher relayed this information to a Kenai
police officer.4 This officer eventually located the car in the
parking lot of a bar.5 When the car pulled back onto the
highway, the officer immediately stopped it.6 The traffic stop
occurred twenty-two minutes after the dispatcher had relayed the
information to the officer.7
This court held that the traffic stop was supported by
reasonable suspicion.8 We concluded that it was reasonable to
infer from the telephone report that a citizen informant had
personally seen Effenbeck at a gas station and had concluded that
Effenbeck was intoxicated.9 We noted that the informant
accurately described the car, and that the police located the car
shortly thereafter.10 We observed that [w]hile a statement that
a driver was intoxicated is in part conclusory, it is the kind of
shorthand statement of fact that lay witnesses have always been
permitted to testify to in court.11
Smiths case is similar to Effenbeck. According to the
telephone report received by the Ketchikan police, the informant
saw an intoxicated man getting into a white Toyota. From the
detail of the informants description of the vehicle and its
current location, it was reasonable for the police to infer that
the informant had a good view of Smith and was reporting
something that he actually and recently saw. The report was
certainly not stale. Officer Perez immediately spotted the
Toyota, so he was able to corroborate the location of the Toyota.
As we noted in Effenbeck, a situation where the police receive a
credible report that someone is driving while intoxicated
requires immediate police action to prevent dangerous conduct and
presents an exigent circumstance. The information that Officer
Perez received was sufficiently credible to justify his stop of
Smiths car. We accordingly uphold Judge Thompsons decision
denying Smiths motion to suppress.
Smiths prior Arkansas conviction for felony
driving while intoxicated should not have
been treated as a prior felony for
presumptive sentencing purposes
Smith had four prior DWI convictions from Arkansas; one
of these convictions was entered in December 1993, two more were
entered in January 1997, and the fourth was entered in December
1997. Smith concedes that, because of these prior DWI
convictions from Arkansas, his current Alaska DWI offense was
properly treated as a felony under AS 28.35.030(n). That is,
Smith concedes that Arkansass definition of DWI is similar to
Alaskas, so that Arkansas DWI convictions constitute prior
convictions under the definition contained in AS 28.35.030(r)(4).
Because of this Smith further concedes that he had been convicted
of DWI at least two times on or after January 1, 1996, and within
the ten years preceding his current Alaska DWI offense the
predicate for a charge of felony DWI under AS 28.35.030(n).
In Alaska, felony DWI is a class C felony.12 A second
felony offender that is, a defendant who has one prior felony
conviction13 is subject to a 2-year presumptive term.14 The
question in this case is whether Smith should have been treated
as a second felony offender.
Smiths fourth Arkansas DWI conviction was a felony
under Arkansas law. Because of this, the Ketchikan superior
court ruled that Smith was a second felony offender, and that
Smith therefore faced a 2-year presumptive term.
But not all felony convictions from other states
qualify as prior felonies for purposes of Alaskas presumptive
sentencing laws. Alaska Statute 12.55.145(a)(1)(B) declares that
the out-of-state conviction must be for an offense having
elements similar to those of [an Alaska] felony[.]
Smith does not dispute that the Arkansas definition of
driving while intoxicated is similar to Alaskas definition of
that offense. But Smith argues that his Arkansas conviction for
felony DWI should not have been treated as a felony for
presumptive sentencing purposes in Alaska because Arkansas
defines felony DWI in a way that differs from Alaskas definition.
In order to understand the discussion that follows, one
must know the history of Smiths four DWI convictions from
Arkansas:
Date of Offense Date of
Conviction
1st offense August 27, 1993 December 8,
1993
2nd offense September 8, 1995 January 20,
1997
3rd offense September 23, 1995 January 20, 1997
4th offense
(treated as a felony) February 17, 1996 December
16, 1997
At the time of Smiths fourth Arkansas DWI conviction
(December 1997), Arkansas law stated that a person was guilty of
felony DWI if the person had three prior DWI offenses within the
three years preceding their current offense.15 In two respects,
this Arkansas statute was substantially stricter than the
corresponding 1997 version of Alaskas felony DWI statute. Our
statute, AS 28.35.030(n), did and still does require proof of
only two prior DWI convictions. And, in 1997, AS 28.35.030(n)
gave the government a much longer look-back period five years,
compared to the three years specified by the Arkansas statute.16
(Since 1997, both Arkansas and Alaska have enlarged their look-
back periods. Arkansas now has a five-year period, while Alaska
now has a ten-year period for convictions entered on or after
January 1, 1996.17).
However, the Alaska felony DWI statute is stricter than
the Arkansas statute in one respect. When determining whether a
defendant has the necessary number of prior convictions within
the specified look-back period, the Arkansas statute focuses on
the date when the defendants prior offenses were committed. The
Arkansas Supreme Court held, in Rogers v. State,18 that for
purposes of penalty enhancement, a DWI conviction relates back to
the date when the criminal act was committed [a]ccordingly, ...
the dates the offenses were committed are the determinative
dates.19
The Alaska felony DWI statute, on the other hand,
focuses on the dates when the defendant was convicted. Under AS
28.35.030(n), the State must show that the defendant has been
previously convicted two or more times ... within the [five or
ten] years preceding the date of the [defendants] present
offense. That is, the State must show that the defendant
committed the current DWI offense after the defendants second (or
subsequent) conviction was entered.
Given the facts of Smiths case, this distinction has
important consequences. Under Arkansas law, Smiths fourth DWI was
punished as a felony because (a) Smith had three prior
convictions for DWI, and (b) those three prior DWIs were
committed within the three years preceding his February 1996
offense. But if Smith had committed these same offenses in
Alaska, his fourth DWI could not have been charged as a felony
because, at the time Smith committed his fourth DWI (in February
1996), he had only one prior DWI conviction within the preceding
five years the conviction entered on December 8, 1993.
When assessing a defendants status as a recidivist for
purposes of statutes imposing enhanced punishment on repeat
offenders, Alaska law has a long history of focusing on the date
of the defendants prior conviction as opposed to the date on
which the defendant committed the prior offense.
For example, in State v. Carlson,20 the Alaska Supreme
Court interpreted a former statute that established a system of
progressively increasing penalties for defendants who had been
previously convicted of felonies.21 The supreme court concluded
that two prior felony convictions entered on the same day could
only be counted as one prior felony for purposes of this habitual
offender statute.22 The court reasoned that, in such instances,
the defendant had faced only one judicial confrontation over his
misconduct and had had only one opportunity for reformation.23
The following year, the supreme court applied a similar
construction to former AS 17.10.200, a statute that provided
enhanced penalties for defendants convicted of a second narcotics-
related felony. In Gonzales v. State,24 the court held that the
enhanced sentencing provision would apply only if the defendants
conviction for the initial offense occurred prior to the
defendants commission of the second offense.25
In State v. Rastopsoff,26 this court relied on the
supreme courts decisions in Carlson and Gonzales when we
interpreted the statutory definition of third felony conviction
for presumptive sentencing purposes.27 We held that, in order to
qualify as a third felony offender, defendants must have
committed their current felony offense after having been
convicted of two prior felonies.28
Carlson, Gonzales, and Rastopsoff demonstrate an
important presumption of Alaska law: before a defendants
sentence can be enhanced based on a prior offense, the government
ordinarily must prove that the defendant was judicially
confronted with his prior misconduct and was given an opportunity
for reformation before the defendant committed the current
offense. When we apply this policy to the definition of felony
DWI codified in AS 28.35.030(n), we conclude that, in order to
convict a defendant of felony DWI, the State must prove that the
defendant committed his current offense after having been
convicted of two prior offenses.
(But, as we indicated in Rastopsoff, a defendant who
has been convicted of two separate prior offenses will be a third
offender if he commits another offense, even if the convictions
for the defendants two prior offenses were entered on the same
day.29 The supreme court acknowledged and adopted our Rastopsoff
analysis in Tulowetzke v. Department of Public Safety30 holding
that, for purposes of determining whether a repeat DWI defendant
is subject to an enhanced period of license revocation under AS
28.15.181(c), prior convictions arising from separate incidents
must be counted as separate convictions, even though the trial
court may have entered those convictions at the same time.31)
Because Alaska law focuses on the dates of a defendants
prior convictions, while Arkansas law focuses on the dates of the
conduct that led to those prior convictions, the question arises
whether Smiths Arkansas conviction for felony DWI can be deemed a
prior felony conviction for presumptive sentencing purposes under
the definition contained in AS 12.55.145(a)(1)(B). In other
words, given this difference between Arkansas and Alaska law, are
the elements of felony DWI in Arkansas similar to the elements of
felony DWI in Alaska?
We view this question as a difficult one, and the
answer has consequences well beyond the resolution of Smiths
case. We have conducted a survey of state law on this issue, and
it appears that various states define felony DWI in the same way
that Arkansas does i.e., by focusing on the dates of the conduct
that gave rise to the defendants prior convictions.32 If we were
to hold that Arkansass definition of felony DWI is not
sufficiently similar to Alaskas definition, this would mean that
Alaska would not count felony DWI convictions from almost half
the states in the union.
But we need not resolve this issue in order to resolve
Smiths case. Rather, we decide Smiths case on narrower grounds.
Given the dates of Smiths Arkansas offenses and the dates on
which his corresponding Arkansas convictions were entered, it is
clear that if Smith had accumulated this same criminal history in
Alaska, neither his third DWI nor his fourth DWI could have
supported a conviction for felony DWI under Alaska law.
Smiths third DWI was committed in September 1995, and
his fourth DWI was committed in February 1996. At those times,
Smith had only one prior DWI conviction: the conviction that was
entered in December 1993.
As we have explained here, Alaska has long adhered to
the policy that a defendants status as a repeat offender hinges
on the date of the defendants prior conviction so that a finding
of recidivism will entail proof that the defendant was judicially
confronted with his prior misconduct and had the opportunity for
reformation before committing a repeat offense. We conclude
that, regardless of whether Arkansass definition of felony DWI is
sufficiently similar to Alaskas definition to qualify as a prior
felony conviction under AS 12.55.145(a)(1)(B), this longstanding
policy obliges us to refuse to recognize a felony DWI conviction
from another state if, given the dates of the defendants out-of-
state offenses and resulting convictions, the defendant could not
have been convicted of felony DWI if he had accumulated the same
criminal history in Alaska. For this reason, we conclude
that Smiths Arkansas felony DWI conviction should not have been
deemed a prior felony conviction for purposes of Alaskas
presumptive sentencing laws. Smith should have been sentenced as
a first felony offender, not a second felony offender.
We note, however, that all four of Smiths Arkansas DWI
convictions count as prior convictions for purposes of
determining Smiths minimum sentence under AS 28.35.030(n)(1).33
We emphasize that our decision affects Smiths
sentencing in only one respect: Smith should have been treated
as a first felony offender, with his sentencing governed by AS
12.55.125(k)(2), rather than as a second felony offender who was
subject to the 2-year presumptive term prescribed in
AS 12.55.125(e)(1). Even though Smith must be treated as a first
felony offender for presumptive sentencing purposes, the
sentencing judge remains entitled to consider Smiths criminal
history when deciding the appropriate sentence. We express no
opinion as to whether Smiths previously imposed sentence (2 years
to serve) would be clearly mistaken if imposed again.
Conclusion
The superior court properly denied Smiths motion to
suppress the evidence stemming from the investigative stop of his
vehicle. However, Smith should have been sentenced as a first
felony offender for presumptive sentencing purposes. We
accordingly REMAND Smiths case to the superior court for
resentencing.
_______________________________
1 AS 28.35.030(n).
2 700 P.2d 811 (Alaska App. 1985).
3 Id. at 812.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id. at 812-15.
9 Id. at 814-15.
10 Id. at 813-15.
11 Id. at 813.
12 AS 28.35.030(n).
13 AS 12.55.185(12).
14 AS 12.55.125(e)(1).
15 Former Ark. Code Ann. 5-65-111(b)(3) (1997); see
Peters v. State, 692 S.W.2d 243, 245 (Ark. 1985) (holding that
the existence of the defendants three prior offenses within the
pertinent look-back period is an element of the felony offense
under Arkansas law).
16 Compare AS 28.35.030(n) (1997), with Ark. Code Ann. 5-
65-111(b)(3) (1997).
17 Compare AS 28.35.030(n), with Ark. Code Ann. 5-65-
111(b)(3)(A).
18 738 S.W.2d 412 (Ark. 1987).
19 Id. at 143; see also Johnson v. State, 932 S.W.2d 347,
348 (Ark. App. 1996) (interpreting a later version of the
statute).
20 560 P.2d 26 (Alaska 1977).
21 Former AS 12.55.050.
22 Carlson, 560 P.2d at 28-29.
23 Id. at 30.
24 582 P.2d 630 (Alaska 1978).
25 Id. at 636.
26 659 P.2d 630 (Alaska App. 1983).
27 See AS 12.55.185(14).
28 Rastopsoff, 659 P.2d at 641 & n.11.
29 Id. at 635-37.
30 743 P.2d 368 (Alaska 1987).
31 Id. at 371.
32 See, e.g., State v. Petrello, 598 A.2d 927, 927-29
(N.J. App. 1991); Williams v. Commonwealth, 576 S.E.2d 468, 469-
70 (Va. 2003).
33 See Ault v. State, 73 P.3d 1248, 1250-51 (Alaska App.
2003), interpreting former AS 28.35.030(o)(4), as amended by ch.
63, 11, SLA 2001 (This statute has now been renumbered as AS
28.35.030(r)(4).).
