Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Powell v. State (04/09/2004) ap-1923

Powell v. State (04/09/2004) ap-1923

                             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


STEVEN BRADLEY POWELL,        )
                              )              Court of Appeals No.
A-7920
                                             Appellant,         )
Trial Court No. 3AN-99-1425 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1923    April 9, 2004]
                              )


          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Milton M.  Souter,
          Judge.

          Appearances:  Paul E. Malin, Assistant Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender,   Anchorage,  for  the   Appellant.
          James    J.   Fayette,   Assistant   District
          Attorney,  John  J.  Novak,  Acting  District
          Attorney,  Anchorage, and  Gregg  D.  Renkes,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          On  the  evening  of January 30, 1999,  Steven  Bradley

Powell  was driving the streets of Anchorage with a blood alcohol

level  of  .195  percent.  He was heading  east  on  Tudor  Road,

nearing the curve where Tudor Road becomes Muldoon Road.   Powell

was  driving slightly over the speed limit, and the road  surface

was  slick from freshly fallen snow.  As Powell rounded the curve

and  began heading north, he lost control of his vehicle and slid

into  the on-coming lanes, striking three other vehicles.  Powell

injured four people, two of them seriously.

          Based  on  this incident, Powell was convicted  of  two

counts   of   first-degree  assault,  one   count   of   reckless

endangerment,  and one count of driving while intoxicated.   And,

based  on  these convictions, the superior court revoked  Powells

probation from a 1997 conviction for third-degree assault.

          Powells  two  counts of first-degree assault  were  his

fourth  and fifth felony convictions.  (In addition to his  prior

conviction  for third-degree assault, Powell had two  convictions

for   third-degree  controlled  substance  misconduct  (sale   of

cocaine).)   Thus,  Powell  was  a  third  felony  offender   for

presumptive sentencing purposes.1

          Powells  current felony offenses are class A felonies.2

Because  he was a third felony offender convicted of  a  class  A

felony,  Powell faced a presumptive term of 15 years imprisonment

on each of the two counts of first-degree assault.3

          The  superior  court sentenced Powell  to  a  composite

sentence of 26 years imprisonment  25 years for his four  current

offenses,  and a consecutive 1 year of previously suspended  jail

time  from  his  1997  assault  conviction.   On  appeal,  Powell

contends that this sentence is excessive.

          Powell  points  out  that neither this  Court  nor  the

supreme  court  has  ever affirmed such a  lengthy  sentence  for

vehicular homicide, much less vehicular assault  that is, driving

offenses that did not cause anyones death.  Based on his criminal

history (which we describe in detail below), Powell concedes that

he  could  properly  be sentenced to 20 years  imprisonment  (the

maximum  penalty  for  one count of first-degree  assault).   But

Powell  argues  that a sentence of 26 years to  serve  is  overly

harsh.

          Powell  asserts   and  the State  essentially  concedes

that his conduct in this case, and the injuries he inflicted, are

          typical for a case of first-degree assault committed by an

intoxicated  driver.  But the State argues that Powells  criminal

history reveals that he presents an extraordinary danger  to  the

public, and that a composite sentence of 26 years imprisonment is

therefore justified.

          We have independently reviewed the record, and we agree

with  the  State  that  Powells case  presents  an  extraordinary

instance where a 26-year composite sentence for vehicular assault

is  not  clearly mistaken, even though Powell killed no one.   We

therefore affirm Powells sentence.



     Powells criminal history
     

               We  have  already  summarized  the  facts  of

     Powells  current offenses.  And, as we have  explained,

     the  State  does  not  argue that Powells  sentence  is

     justified  by the seriousness of his current  offenses.

     Rather,  the  State essentially concedes  that  Powells

     current  offenses  are unremarkable among  first-degree

     assaults     committed    by    intoxicated    drivers.

     Accordingly,  we  will  not  describe  Powells  current

     offenses in any further detail.  Instead, we turn to an

     extensive examination of Powells criminal history.

               The  most  salient aspect of that history  is

     Powells  eleven  prior convictions  for  driving  while

     intoxicated.   Twice before, Powell  had  received  the

     maximum  sentence  for DWI (1 years imprisonment).   At

     Powells sentencing, the prosecutor presented a chart of

     these   offenses;   the  prosecutor  calculated   that,

     starting  in  the year 1983, the average  span  between

     Powells  release from custody and his next DWI  offense

     was 88 days.

          In   addition,   Powell   has   eight   prior

convictions  for  driving with a suspended  or  revoked

license, one conviction for reckless driving,  and  one

conviction  for  leaving  the  scene  of  an  accident.

Indeed,  a witness who observed Powell at the scene  of

the  accident in the present case testified that Powell

was  trying to restart his car and drive away.  At  the

time  of  his current offenses, Powells drivers license

had  already  been revoked well into the  twenty-second

century  i.e., past the year 2100.

          Unfortunately,  the two preceding  paragraphs

only  begin  to  tell the story.  Aside from  his  many

driving  offenses, Powell had several prior convictions

for assault, and he also had convictions for disorderly

conduct,  making a false report, carrying  a  concealed

weapon,    resisting   arrest,   failure   to   appear,

shoplifting,   eluding   a  police   officer,   unsworn

falsification, and criminal trespass.

          Between  1978 and 1982 (that is, when  Powell

was  between  the ages of 17 and 21),  Powell  had  two

convictions  for  DWI,  plus convictions  for  reckless

driving,  resisting arrest, and assault (for siccing  a

dog   on  two  little  girls).   By  1983,  Powell  had

accumulated  his third and fourth DWI convictions,  and

he   was  ordered  into  alcohol  treatment  at  Humana

Hospital.

          Between  1984 and 1985, Powell was  convicted

of eight more misdemeanors:  a second reckless driving,

plus   disorderly  conduct,  making  a  false   report,

possession  of a firearm while intoxicated, two  counts

of carrying a concealed weapon, assault, and assault on

a police officer.

          In 1985, Powell was arrested on two counts of

selling  cocaine.  Following his arrest, Powell  posted

bail  and  then absconded to California.  He  committed

his  fifth  DWI  in Redding, California;  when  he  was

arrested,  he gave the California authorities  a  false

name.   Then,  after getting out of jail in California,

Powell  fled to Florida  where he committed  his  sixth

DWI.  As he had done in California, Powell gave a false

name to the Florida authorities.  And after the Florida

court released him on probation, he absconded again.

          In early 1986, Powell was making his way back

to  Alaska.  In March, he was arrested in the State  of

Washington  for  driving  with  a  suspended   license.

Later, he arrived in Haines  where he was convicted  of

assault.  (The district court was apparently unaware of

Powells   record,  because  he  received  a   suspended

imposition of sentence for this crime.)

          In May 1986, Powell was arrested in Anchorage

on the felony warrant that had been issued the previous

year  when he jumped bail.  Soon afterward, Powell  was

convicted  of  his first two felonies  (two  counts  of

third-degree controlled substance misconduct),  but  he

received  a  relatively lenient sentence  130  days  in

jail,  with no probation.  He was released from  prison

in  September 1986.  Seven months later, in April 1987,

Powell  committed another DWI, although  he  was  never

convicted  of this charge.  (The charge was  ultimately

dismissed in January 1988 because Powell was in federal

prison, as described in the next paragraph.)

          In June 1987, Powell got drunk at the Russian

River   and  assaulted  a  federal  fish  and  wildlife

officer.  The federal district court released Powell to

the  Glennwood Center (a treatment center), but  Powell

absconded.   He  fled Alaska, but he was soon  arrested

for shoplifting in Reno, Nevada  where he again gave  a

false  name  to  the  authorities.  After  serving  his

sentence in Nevada, Powell returned to Alaska (still on

the run from his federal charges).  He was arrested  by

federal  marshals  in  October 1987,  and  the  federal

district  court sentenced Powell to serve 11 months  in

prison.   (This  is apparently why the Municipality  of

Anchorage  dismissed  Powells  pending  DWI  charge  in

January 1988.)

          In  November 1989, Powell was again  arrested

for  DWI.   He  had  run a red light,  he  was  weaving

between  lanes,  and his blood alcohol level  was  .229

percent.  This became his seventh DWI conviction.

          In   February   1990,   twenty   days   after

completing   his   sentence  for   that   seventh   DWI

conviction, Powell was once more arrested for DWI.  The

district  court  released Powell to the Salvation  Army

treatment  program,  but he absconded  after  one  day.

Following   his  recapture  (described  in   the   next

paragraph), Powell was convicted of his eighth DWI  for

this February incident.

          In  June  1990, after eighty-one  days  as  a

fugitive  from the February charge, Powell was arrested

after the police stopped him for driving a vehicle with

a cracked windshield.  His blood alcohol level was .237

percent, and he gave a false name to the police.  Based

on  this incident, Powell  was convicted of DWI for the

ninth  time.  But in July 1990, before that  conviction

was  entered,  and  while Powell was on  bail  release,

Powell  got  drunk and assaulted staff members  at  the

Alaska  Native Medical Center.  (Again, Powell  gave  a

false name when he was arrested.)

          In   November   1991,  Powell   drove   while

intoxicated   and   caused  a  collision.   After   the

collision,  Powell  tried  to  switch  seats  with  his

passenger and thus avoid responsibility.  Based on this

incident, Powell was convicted of his tenth DWI.

          In  February  1992, Powell was  convicted  of

leaving  the  scene of an accident and driving  with  a

suspended license.

          Powell  was  released from jail on  April  1,

1993.   Twenty  days  later, he was  arrested  for  his

eleventh  DWI.   While  he was awaiting  trial,  Powell

wrote  letters to some friends, urging them to lie  for

him.   Following  his  conviction,  the  Department  of

Corrections  furloughed  Powell  to  Akeela  House   (a

treatment center).  Within six weeks, Powell absconded.

He  remained a fugitive for five months.  Following his

arrest, he was convicted of DWI and escape.

          Powell was released from prison in late 1994.

In  early  1995,  he was arrested for  driving  with  a

suspended license.  Later, in May 1995, he committed an

assault  on  his father.  Thirteen days  after  he  was

released  on  bail  from this assault  charge,  he  was

arrested for shoplifting (when he again gave the police

a false name).

          After   being  convicted  of  these   various

offenses, Powell was again released from prison in  May

1996.   Seventeen  days  later,  Powell  assaulted  his

father  again.   He finished serving his  sentence  for

this  crime  in July 1996.  One week later, Powell  was

arrested  twice  for driving with a suspended  license.

The  first time, the police gave him a citation and let

him go; the second offense occurred six hours later.

          Powell  was arrested for the second  offense,

but  after  he  posted  bail,  he  absconded.   He  was

arrested  four weeks later in Tukwila, Washington,  for

assaulting  his  girlfriend.  (Powell  again  gave  the

police a false name when he was arrested).

          After   spending  a  few  days  in  jail   in

Washington, Powell returned to Anchorage.   The  police

arrested  him on his outstanding warrants  in  November

1996.    During  that  arrest,  Powell  assaulted   and

threatened to kill one of the arresting officers.

          Powell  was released from prison on July  29,

1997.   Two  days  later, the police were  summoned  to

Powells  residence because of a fight, and  Powell  was

arrested.  When the police brought Powell to be  booked

at  the  Sixth  Avenue Jail, he began  to  destroy  the

booking room  throwing typewriters and computers at the

officers, and causing several thousand dollars  damage.

Based  on this incident, Powell was charged with felony

assault (his third felony).

          In  August  1997,  with  this  felony  charge

pending,  Powell  was  released  to  Sundown  Ranch,  a

treatment program in the State of Washington, upon  the

promise that he would return to court for a hearing  on

September  18th.   Instead,  Powell  jumped  bail   and

remained a fugitive for almost eight months.

          In  April  1998, Powell was arrested  at  his

Anchorage  residence.   While awaiting  trial,  he  was

released  to  Genesis House (a treatment  center).   In

November 1998, Powell was convicted of the 1997  felony

assault, but he was apparently allowed to continue  his

residence at Genesis House.

          Shortly  thereafter, in late  November  1998,

Genesis House released Powell.  Sixty-eight days later,

in  January 1999, Powell committed the offenses in  the

present  case:   his twelfth DWI, plus  two  counts  of

first-degree   assault  (for  seriously  injuring   two

people) and one count of reckless endangerment.

          While  the present charges were pending,  one

of  Powells  victims (Roberto Hernandez)  sued  him  in

small claims court to recover damages stemming from the

collision.   At  the trial in front of  District  Court

Judge  James N. Wanamaker, Powell committed perjury  by

falsely  testifying that he had not  been  driving  the

vehicle.   (Powell testified that he  had   been  lying

asleep in the back seat at the time of the collision.)



The superior courts findings and sentencing decision


          As  already  explained, Powell  was  a  third

felony  offender  convicted of  two  class  A  felonies

(first-degree  assault).  The presumptive  term  for  a

third felony offender convicted of a class A felony  is

15   years  imprisonment,  and  the  maximum  term   of

imprisonment for a class A felony is 20 years.4

          Superior   Court  Judge  Milton   M.   Souter

presided  over Powells sentencing.  He found  that  the

State  had  proved  four aggravating factors  under  AS

12.55.155(c):   (c)(20)   that,  at  the  time  of  his

present  offense, Powell was on felony probation  (from

the  1997  third-degree assault); (c)(6)  that  Powells

conduct  created a risk of imminent injury to three  or

more  persons; (c)(15)  that Powell had more  than  two

prior  felony  convictions; and  (c)(8)   that  Powells

criminal   history  included  repeated   instances   of

assault.    (Powell   did  not   dispute   these   four

aggravators.)

          Based on these aggravators, Judge Souter  was

authorized  to  impose a sentence of  up  to  20  years

imprisonment  on  each of Powells first-degree  assault

convictions.5  Because Powell did not  prove  (or  even

assert) any mitigating factors, the 15-year presumptive

term  was, in essence, the minimum sentence that  Judge

Souter might impose for these two felonies.6

          The  prosecutor asked Judge Souter to  impose

20-year maximum sentences for each of Powells two first-

degree  assault convictions, to make these  two  felony

sentences consecutive by at least 5 years, and to limit

Powells parole eligibility by requiring him to serve at

least  20  years before he became eligible for  parole.

Powells attorney conceded that Powell should receive 20

years to serve, but she asked Judge Souter to impose no

more than that.

          Thus,  in  practical terms, Judge Souter  was

confronted  with two major decisions:  (1)  whether  to

impose  a composite sentence that exceeded the  20-year

          maximum for a single count of Powells most serious

offense  (first-degree assault),  and  (2)  whether  to

restrict Powells parole eligibility.

          Based on Powells extensive record of criminal

offenses  and  his repeated failures at rehabilitation,

Judge Souter found that Powell was a worst offender for

sentencing purposes.7  The judge expressed grave  doubt

that  further rehabilitative efforts are going to  bear

[fruit].

          Having  made  this  worst  offender  finding,

Judge  Souter  was  authorized to  impose  a  composite

sentence  of  up to 20 years imprisonment (the  maximum

penalty  for  a  single count of first-degree  assault,

Powells   most  serious  offense).8   But   under   the

Neal-Mutschler  rule established by our supreme  court,

Judge  Souter could not impose a sentence exceeding  20

years  to  serve unless he affirmatively found  that  a

longer  term of imprisonment was necessary  to  protect

the public.9

          Judge  Souter did not expressly  mention  the

Neal-Mutschler rule in his sentencing remarks,  but  he

explained   why   he  had  small  hopes   for   Powells

rehabilitation, and why he believed that Powell  was  a

particularly dangerous offender:

     
     The  Court:  I have to look at  reality.
I  have to consider [the] risks to the public
here.   Because of the long, continued nature
of  Mr. Powells alcoholism, his inability  to
control  his conduct when he is drinking   he
gets  violent  when  hes  drinking,  he  just
cannot  control himself when he  drinks.   He
drinks  to  excess, and then he cant  control
himself.  ...  [T]his pattern ... [is] deeply
ingrained, its deeply rooted.  Hes been doing
this  ...  since  he was an  adolescent,  ...
[for]   over  twenty  years.   Were   talking
thirteen [sic:  twelve] known convictions for
driving   while  intoxicated.   Were  talking
several  other alcohol-related convictions[.]
...

     And  the  worst part ... for society  is
that  Mr.  Powell is dangerous.  Hes  a  real
threat  to  the  life and the limb  of  other
people on the highway.  Its a wonder that  he
has   not  killed  ...  or  seriously  maimed
somebody  [or] crippled  them.  He  hurt  two
people seriously in this case.  ...

Judge  Souter  also  explained why he  had  decided  to

sentence  Powell to straight time (that is, a  sentence

consisting  solely  of  time  to  serve)  rather   than

imposing  a partially suspended sentence with attendant

probation:


     The  Court:  As much as I would like  to
be able to decide [this] issue the other way,
...  I  cannot avoid the conclusion that  Mr.
Powell is a danger to others and that he  has
got  to  be incarcerated for a long time  for
the  sake  of other people, the sake  of  the
safety  of  other  people.  Now,  oftentimes,
judges  order  ... probationary sentences  on
top  of  prison-time sentences  because  they
want  to  encourage rehabilitation  and  they
want  to  maintain control of  [an  offender]
after ... they get out of jail.  [But] Im not
going  to  do  that in this case because  ...
[the]  evidence here is very strong ...  that
Mr.  Powell  is  not  going  to  rehabilitate
[himself].  As soon as he gets out  of  jail,
hes going to start doing it again.  Thats the
weight of the evidence.  I hope he can do it,
I  hope he can change, but the weight of  the
evidence is that he wont, ... based on  [our]
past  experience  with him [in]  the  justice
system[.]

At the same time, Judge Souter rejected the prosecutors request

for a restriction on Powells parole eligibility:


     The   Court:   Im  going  to  order  ...
straight-time sentences, [but]  Im  going  to
let  the Parole Board deal with [Mr. Powell].
Because I cannot foresee the future,  Im  not
going  to  restrict parole [as the prosecutor
has asked].  Im going to leave [parole] up to
the Parole Board  which is tough:  theyre  no
pushovers.  ...  I think the Parole Board can
do  the  job  here.  ...  I dont need  to  be
telling  the  Parole Board that  they  cannot
[release]  this man on parole if they  really
believe that he has become rehabilitated.

Finally,  Judge Souter stated that he believed  Powells

sentences should be partially consecutive because, even

though  Powells offenses arose from a single  incident,

there were multiple victims [involved].

Judge  Souter  then sentenced Powell to  the  following

terms  of  imprisonment:  The judge imposed an  18-year

sentence on each count of first-degree assault, and  he

made  6 of those years consecutive.  In addition, Judge

Souter  imposed  a  consecutive  1-year  sentence   for

Powells reckless endangerment conviction  thus making a

total of 25 years to serve.  (Judge Souter also imposed

1 years imprisonment for Powells DWI conviction, but he

made this concurrent to Powells other sentences.)

After  imposing  these sentences, Judge Souter  revoked

Powells   probation  from  his  1997   felony   assault

conviction  and  imposed 1 year of  Powells  previously

suspended   jail   time.   This  probation   revocation

sentence was consecutive to Powells sentences  for  his

current offenses.

Thus,  all told, Judge Souter sentenced Powell to serve

26  years  in prison.  Shortly after the judge  imposed

this   sentence,  the  judge  urged  Powell  to  pursue

rehabilitative  treatment when  he  was  released  from

prison.   Powell  answered  with  a  sarcastic  remark.

Powell  also complained openly about the fact  that  he

would  not be eligible for parole until he was  in  his

fifties.  This prompted Judge Souter to declare:


     The  Court:   If  you dont  change  your
attitude  and  your behavior, it  scares  the
hell out of me what youll do to somebody  out
on the street.  And thats why Ive got to send
you away, the way Im doing.  And if you think
I  enjoy doing this to a fellow human  being,
youre wrong.  I dont.  It doesnt make me feel
any  happier to have to do this, but Im doing
my duty.  ...  Its what Ive got to do for the
sake of everybody.



Our analysis of the superior courts sentencing decision


     As  we  noted earlier, Judge Souter  did  not

expressly refer to the Neal-Mutschler rule when he

sentenced Powell to a composite term of  26  years

to serve  a term that exceeded the 20-year maximum

sentence   for   Powells  most  serious   offense.

However,   an  express  finding  is   not   always

required.   In  Neal  itself,  the  supreme  court

declared that no express finding was needed  under

the following circumstances:


     The  record contains ample evidence that
[the  defendant] presents a risk of continued
criminal   conduct  which   would   seriously
threaten  the public safety.  [The defendant]
was  twenty-nine years of age at the time  of
sentencing.  He has been a heroin addict  for
ten years and has compiled a lengthy criminal
record,   including   numerous   felony   and
misdemeanor   drug   offenses   and   several
property     offenses.     Extensive     drug
rehabilitation efforts have been  a  failure.
With   complete  foresight  [the   defendant]
helped  to  plan, organize, and carry  out  a
highly dangerous and extremely serious  crime
[armed robbery of a bank].  It is clear  that
[the defendant] presents a threat of criminal
conduct  which would seriously  threaten  the
public    safety.    Given    his    repeated
rehabilitative  failures and his  conduct  on
this occasion, the threat is substantial.

Neal, 628 P.2d at 21.  See also Waters v. State, 64 P.3d 169, 174-

75  (Alaska App. 2003), where we upheld a composite sentence that

exceeded  the  maximum  for the defendants  single  most  serious

offense,  even  though the sentencing judge  failed  to  make  an

express  Neal-Mutschler finding, when the defendant was a  mature

adult  with a lengthy history of serious offenses and a seemingly

intractable substance abuse problem.

          Like the defendants in Neal and in Waters, Powell is  a

mature offender whose conduct over the preceding two decades  has

shown  him  to  be  both  exceptionally dangerous  and  seemingly

incorrigible.  Powells 15-year presumptive term is based  on  his

prior  felony  convictions,  but Powells  dangerousness  is  more

clearly  demonstrated  by his almost two  dozen  convictions  for

driving  offenses.   Chief  among  these  are  his  eleven  prior

convictions for driving while intoxicated.  But Powell  also  has

been  convicted  eight  times for driving  with  a  suspended  or

revoked  license, once for reckless driving, and once for leaving

the scene of an accident.

          Moreover,  Powell  is distinguished  from  the  typical

drunk   driving  offender  because  his  criminal  history   also

demonstrates a propensity for violence.  He has been convicted of

one  felony  assault and several other misdemeanor  assaults  (as

well as resisting arrest).

          Finally,  the record demonstrates Powells contempt  for

authority  and  his  disdain  for  any  efforts  to  foster   his

rehabilitation.   Again and again, Powell has  jumped  bail  when

facing criminal charges.  He also committed perjury in an attempt

to avoid liability when he was sued for damages stemming from his

current  offenses.   Dozens  of  criminal  convictions  and  jail

sentences  have  failed  to deter Powell  from  further  criminal

activity   most  notably, his continuing string of drunk  driving

offenses.   And,  perhaps most important, Powell  has  repeatedly

absconded from alcohol treatment programs.

          As  was  true in Neal, the sentencing record in Powells

case  shows that he presents a [substantial] threat of  continued

criminal  conduct  which  would  seriously  threaten  the  public

safety.   That record fully supports the conclusions that  Powell

poses  a great danger to the public safety, that Powell has  poor

prospects  for rehabilitation, and that, unless and until  Powell

is  rehabilitated, the only way to protect the public from him is

to keep him isolated in prison.

          We  acknowledge  that Powells 26-year sentence  exceeds

any  that  we have affirmed for defendants convicted of vehicular

homicide.10  However, as we explained above, Powell  is  a  third

felony  offender  who  faced  a presumptive  term  of  15  years.

(Indeed,  because Powell did not propose any mitigating  factors,

this  15-year  presumptive  term  was  essentially  the  mandated

minimum term.)

          This   15-year   presumptive   term   represents    the

legislatures  judgement  as to the prison  term  that  should  be

imposed  on a typical third felony offender who commits a typical

act of first-degree assault.11  But Powell is not a typical third

felony offender.

          First,  Powell had three prior felonies, not just  two.

Second, Powell was being sentenced for two first-degree assaults,

not  just  one.  Third, Powells criminal history includes  eleven

prior  convictions  for  driving while intoxicated,  as  well  as

several convictions for misdemeanor assault.  Fourth, Powell  has

engaged  in repeated violations of bail and probation conditions,

often  accompanied  by flight from Alaska, and  he  continues  to

drive even though, because of past offenses, his license has been

revoked for more than the next hundred years.  And fifth,  Powell

has repeatedly refused to engage in treatment for his alcoholism.

          When  we  consider  these aspects of  Powells  case  in

combination,  we  conclude  that Judge  Souter  was  not  clearly

mistaken when he sentenced Powell to a composite term of 26 years

to  serve.12   The sentencing decision of the superior  court  is

therefore AFFIRMED.



_______________________________
     1 AS 12.55.185(14).

     2 AS 11.41.200(b).

     3 AS 12.55.125(c)(4).

4 AS 12.55.125(c).

5 See AS 12.55.155(a)(2).

6 Id.

7  See  State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975),
Napayonak  v. State, 793 P.2d 1059, 1062 (Alaska App.  1990)
(defining  the  term worst offender, and explaining  that  a
worst   offender  finding  can  be  based  either   on   the
circumstances surrounding the defendants present offense, or
on the defendants criminal history, or both).

8 See id.

9  See  Neal  v. State, 628 P.2d 19, 21 (Alaska 1981):   Our
past  decisions imply that where consecutive  sentences  for
two  or  more  counts exceed the maximum  sentence  for  any
single  count,  the sentencing judge should  make  a  formal
finding  that confinement for the combined term is necessary
to  protect  the public.  (Citing Mills v. State,  592  P.2d
1247,  1248 (Alaska 1979), and Mutschler v. State, 560  P.2d
377, 381 (Alaska 1977)).

     10    See  Pusich v. State, 907 P.2d 29 (Alaska  App.  1995)
(upholding  a composite sentence of 18 years to serve   25  years
with  7 years suspended  for a consolidated count of manslaughter
charging  three  deaths, and one count of first-degree  assault);
Foxglove  v. State, 929 P.2d 669 (Alaska App. 1997) (upholding  a
composite  sentence  of  19  years to  serve  for  one  count  of
manslaughter  and  four  counts  of  first-degree  assault,  plus
another first-degree assault arising from a separate incident).

     11    See Mullin v. State, 886 P.2d 1323, 1328 (Alaska  App.
1994);  Juneby  v.  State, 641 P.2d 823, 833,  838  (Alaska  App.
1982).

     12    See  McClain  v. State, 519 P.2d 811,  813-14  (Alaska
1974)  (an  appellate  court is to uphold a  sentencing  decision
unless the sentence is clearly mistaken).