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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| KEVIN L. PARRISH, | ) |
| ) Court of Appeals No. A-9292 | |
| Appellant, | ) Trial Court No. 1KE-05-034 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2040 April 7, 2006 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Trevor N. Stephens,
Judge.
Appearances: Marvin Hamilton, Assistant
Public Defender, Ketchikan, and Barbara K.
Brink, Public Defender, Anchorage, for the
Appellant. James Scott, Assistant District
Attorney, and Stephen West, District
Attorney, Ketchikan, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Kevin L. Parrish appeals the sentence that he received
for felony breath test refusal. He argues that the superior
court should have ruled in his favor on two proposed mitigating
factors under AS 12.55.155: (d)(9) that his conduct was among
the least serious within the definition of the offense, and
(d)(13) that, throughout his criminal history, the harm he has
caused has been consistently minor, and that this minor harm is
inconsistent with the imposition of a substantial term of
imprisonment.
(Since the time of Parrishs sentencing, these two
mitigating factors have been renumbered (d)(8) and (d)(12),
respectively. See SLA 2005, ch. 2, 19.)
As we explain here, Parrish has failed to present us
with a record that allows meaningful review of the superior
courts rulings. And, to the extent that the limited record does
shed light on the superior court proceedings, it fails to
substantiate Parrishs claims of error. Accordingly, we affirm
the superior courts decisions.
The basic situation: Pursuant to a plea agreement,
Parrish entered pleas in two different cases, but he
has appealed his sentence in only one of these cases,
and no pre-sentence report was prepared in that case
At a single hearing on May 9, 2005, Parrish
was sentenced for two felonies: the felony breath test
refusal mentioned in the first sentence of this opinion
(case number 1KE-05-034 Cr), and a separate charge of
felony driving under the influence in case number 1KE-
04-922 Cr, based on an earlier incident.
Parrishs underlying conduct in both cases was
the same: he was found operating his boat in the
waters near Ketchikan while under the influence.
Following Parrishs arrest in the 2004 case (1KE-04-
922), Parrish submitted to a breath test which showed
his blood alcohol level to be .139 percent. Parrish
was on release from that 2004 case when he committed
the DUI in the 2005 case i.e., the present case (1KE-
05-034). This time, Parrish refused to take the breath
test, thus committing the additional offense of breath
test refusal.
Parrish apparently had prior convictions for
DUI. These prior convictions are not specified in the
record before us, but the prosecutor referred to them
summarily at the sentencing hearing, and their
existence can also be inferred from the fact that all
three of Parrishs offenses described in the preceding
paragraphs were charged as felonies.
Parrish and the State agreed that these two
cases would be resolved by having Parrish plead no
contest to the driving under the influence charge in
the 2004 case and the breath test refusal charge in the
2005 case. The State agreed to dismiss the 2005 felony
DUI charge. In addition, the State agreed not to seek
revocation of Parrishs probation from two prior
criminal cases in 2003 (1KE-03-267 Cr and 1KE-03-1007
Cr).
Parrish apparently had three prior felony
convictions from the State of Washington. Parrishs
plea agreement with the State specified that, because
of this prior felony record, Parrish faced a
presumptive term of 3 years imprisonment on both the
2004 felony DUI and the 2005 felony breath test
refusal. The plea agreement called for Parrish to
receive sentences of 5 years with 2 years suspended
(i.e., 3 years to serve) on each of these two felonies.
These sentences were to be served concurrently except
for the mandatory minimum of 120 days imprisonment that
Parrish faced on each count. Thus, Parrishs total time
to serve would be 3 years, 120 days.
Why we affirm the superior courts ruling on proposed
mitigator (d)(13)
Parrish argues that the superior court should
have ruled in his favor on proposed mitigator AS
12.55.155(d)(13) that his criminal history
demonstrates that the harm he has caused has been
consistently minor, and that this minor harm is
inconsistent with the imposition of a substantial term
of imprisonment.
Parrishs first legal hurdle is that he has
appealed only one of the two felony offenses for which
he was sentenced. By so doing, he has failed to
present us with a record that is adequate to review his
claim of error regarding mitigator (d)(13).
In the past, this Court has declared that
when a defendant receives a composite sentence based on
criminal convictions in more than one case, we will not
review the composite sentence for alleged excessiveness
unless the defendant appeals all of the underlying
cases. Only then are we assured that we have a
sufficient record of the underlying proceedings to
adequately appraise the defendants composite sentence.1
Parrishs case presents a similar difficulty.
Parrish asserts that the superior court erred when it
rejected proposed mitigator (d)(13) that is, when it
rejected Prestons assertion that his history of
criminal behavior involves consistently minor harm that
is inconsistent with the imposition of a substantial
term of imprisonment. Evaluation of this mitigator
necessarily entails an evaluation of both the facts of
Parrishs present offense and the facts of his prior
offenses.2 The record before us is not adequate for
this task.
Because Parrish has not appealed his 2004
felony DUI conviction or sentence, we do not have the
record from Parrishs 2004 case. Moreover, after
Parrish and the State reached their negotiated
settlement of the 2004 and 2005 cases, Parrish waived
preparation of a pre-sentence report in the 2005 case
assumedly, because a pre-sentence report was already
being prepared for his 2004 case, and because so little
time separated the two cases.
The end result is that the record currently
before us contains no pre-sentence report and very
little discussion of the facts surrounding any of
Parrishs prior offenses. As a practical matter, this
means that Parrish can not meet his burden of
demonstrating that the superior court committed error
when it rejected proposed mitigator (d)(13).
A party who appeals a trial courts judgement
must present the appellate court with a record that is
adequate to permit meaningful review of the appellants
claims of error. In the absence of an adequate record,
an appellate court will refuse to address the
appellants claims.3
The record in this case is inadequate to
allow us to meaningfully evaluate Parrishs claim that
all of his offenses, past and present, entail
consistently minor harm and are inconsistent with the
imposition of substantial imprisonment. Or, stating
the matter another way, Parrish has failed to provide
us with a record that demonstrates that the superior
court committed error when the court rejected this
proposed mitigator. For these reasons, we affirm the
superior courts ruling on mitigator (d)(13).
Why we affirm the superior courts ruling on proposed
mitigator (d)(9)
Parrish also argues that the superior court
should have ruled in his favor on proposed mitigator AS
12.55.155(d)(9) that his conduct in committing the
offense was among the least serious within the
definition of that offense. Here again, Parrish has
given us a record that does not address the point he is
arguing.
As explained above, the only sentence that
Parrish has appealed is the sentence he received for
felony breath test refusal. But Parrishs brief does
not address the issue of whether his act of refusing
the breath test in 2005 was among the least serious
conduct within the definition of that particular
offense. Indeed, at the sentencing hearing in the
superior court, Parrish never argued that his act of
refusing to take the breath test was among the least
serious within the definition of that offense.
Instead, at the sentencing hearing, Parrish
argued that his other offense his act of operating a
boat under the influence in 2004 was among the least
serious conduct within the definition of DUI:
Defense Attorney: [T]he way [that] I
think [the mitigators] apply is that it was a
situation where Mr. Parrish was in his boat,
and there was no danger to anyone. And
apparently he wasnt operating [the boat] in a
bad way that caused any problems, but he had
consumed the alcohol while he was on
probation for [a] previous [conviction]. And
so I proffer [mitigators (d)(9) and (d)(13)].
(This short excerpt constitutes the entirety
of Parrishs argument in support of the
proposed mitigators. Several minutes later
in the hearing, the sentencing judge
Superior Court Judge Trevor N. Stephens
asked Parrishs attorney if he had anything to
add regarding the proposed mitigators. The
defense attorney answered that he had nothing
further.)
This same argument is the one that
Parrish renews in his brief to this Court.
But Parrish has not appealed the sentence he
received for his 2004 offense of felony
driving under the influence. Rather, he has
appealed only his sentence for felony breath
test refusal. Neither Parrishs argument at
the sentencing hearing nor Parrishs argument
in his brief to this Court addresses the
question of whether his act of breath test
refusal was among the least serious within
the definition of that offense. Indeed, as
far as we can tell, Parrish never asked Judge
Stephens to rule on this question.
We therefore conclude that Parrish
failed to preserve his claim that Judge
Stephens should have found mitigator (d)(9)
with regard to Parrishs offense of breath
test refusal.
Moreover, even if we reached the
issue of whether Parrishs 2004 act of driving
under the influence was among the least
serious within the definition of that
offense, we would uphold Judge Stephenss
ruling.
As shown by the excerpt of the
sentencing hearing that we quoted above,
Parrishs sole argument in support of
mitigator (d)(9) was that he wasnt operating
[the boat] in a bad way, that he [had not]
caused any problems, and that there was no
danger to anyone. But Judge Stephens
disagreed with this characterization of the
episode. As the judge explained,
The Court: I cant find [mitigator
(d)(9)] simply because [Parrish] was
operating a boat [rather than a car]. ...
[T]he legislature has said that ... operating
a boat under the influence is the same
offense, and subject to the same penalties,
as operating a motor vehicle a car or van or
anything like that [under the influence].
Beyond that, [the conduct that] brought
Mr. Parrish to the attention of the
authorities [in both the 2004 and the 2005
cases] was [that] he was running his boat
without its lights on at night.
He was on felony release when he
committed the 2005 offense, [and] he was on
conditions of release when he committed the
2004 offense which aggravates [both]
offenses, in my view. [Moreover,] in the ...
2004 [case, his blood alcohol level] was .139
[percent], which is ... not extremely high,
but its almost .06 above the legal limit.
So [Parrishs conduct] is not among the
least serious.
As we explained above, we have no pre-sentence report
to elucidate the facts of Parrishs offense. As a practical
matter, the lack of a pre-sentence report (or other equivalent
record) means that Parrish has failed to demonstrate that Judge
Stephenss view of the case was mistaken. Thus, even if we
reached Parrishs claim that mitigator (d)(9) applied to his 2004
act of driving under the influence, we would uphold Judge
Stephenss ruling on this mitigator.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1Preston v. State, 583 P.2d 787, 788 (Alaska 1978); Custer
v. State, 88 P.3d 545, 549 (Alaska App. 2004).
2See Jordan v. State, 895 P.2d 994, 1000 (Alaska App. 1995).
3Liimatta v. Vest, 45 P.3d 310, 319 (Alaska 2002); Adrian v.
Adrian, 838 P.2d 808, 811 & n. 5 (Alaska 1992); Ketchikan
Retail Liquor Dealers v. State, 602 P.2d 434, 438-39 (Alaska
1979); McBride v. State, 368 P.2d 925, 927 n. 11 (Alaska
1962).
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