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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).
