Opinion
Court of Appeals No. A-10965 Trial Court No. 3AN-08-2949 CR No. 5795
01-25-2012
ROBERT J. CHILLIGAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer, for the Appellant. Robert W. Corbisier, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, David C. Stewart, Judge.
Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer, for the Appellant. Robert W. Corbisier, Assistant District Attorney, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Robert J. Chilligan was convicted of felony driving under the influence, felony eluding a police officer, and driving while his license was suspended. He was sentenced to a composite sentence of eight years' imprisonment with three and one half years suspended, or four and one half years to serve. Chilligan now appeals, arguing that his sentence is excessive.
Chilligan has a long history of driving offenses. He was first fined for driving under the influence in 1991. In 1993, he was convicted of driving while his license was revoked. In 1995, he was convicted of DUI and eluding a police officer. In 1999 and 2001, he was again convicted of DUIs.
In 2002, Chilligan was convicted of felony DUI. The following year his felony probation was revoked and the court imposed the balance of his suspended sentence. In 2004, Chilligan was convicted of reckless driving and eluding a police officer.
In the present case, Chilligan took a vehicle belonging to Joseph Dyjak without Dyjak's permission. On March 20, 2008, a trooper tried to stop the vehicle for speeding on the Glenn Highway, but Chilligan would not stop. He eventually ran the vehicle into a tree on a side road off the Eklutna exit. His blood alcohol percentage was .132 percent.
In September 2008, while he was on pretrial release, Chilligan committed another set of felony driving offenses near Wasilla. He entered into a plea agreement and received concurrent sentences of four years' imprisonment with two years suspended on his convictions for felony DUI and eluding a police officer.
After his sentencing on the Wasilla charges, Chilligan pleaded guilty to all three charges in this case. Chilligan's 2002 DUI was a prior felony conviction for presumptive sentencing purposes, so the presumptive sentencing range was two to four years for Chilligan's class C felony convictions. Superior Court Judge pro tem David Stewart found that there was an aggravating factor because Chilligan had five or more class A misdemeanor convictions. The judge imposed a sentence of three years' imprisonment for felony driving under the influence, five years with three years suspended for felony eluding a police officer, and one year with six months suspended for driving while license was suspended. One year of the eluding sentence was concurrent with the DUI sentence.
AS 12.55.125(e)(2).
See AS 12.55.155(c)(31).
Chilligan argues that Judge Stewart failed to adequately consider the sentence imposed in the Wasilla case as well as other sentences typically imposed in similar cases. However, Judge Stewart reviewed the presentence report for the Wasilla offenses and an updated report that described the sentence Chilligan received for those offenses. The judge also referred to the Wasilla offenses during his sentencing remarks. So there is no question that the judge was aware of the sentence Chilligan received for the Wasilla offenses when he imposed the sentence in this case.
Chilligan's argument suggests that we should reverse the sentence in this case because it was not the same as the sentence for the Wasilla offenses. We reject this suggestion. We will reverse a sentencing decision for excessiveness only if we are convinced that the sentence is clearly mistaken. This standard assumes that there is a range of appropriate sentences, even for the same defendant and the same crime.
See McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
See State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000); Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
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Moreover, there are circumstances that could have convinced Judge Stewart to impose a harsher sentence in this case than the sentence imposed for the Wasilla offenses. For one thing, the record suggests that Chilligan had stolen the car he wrecked in this case, a circumstance that was not present in the Wasilla offenses. The judge could also take into consideration that Chilligan had committed the Wasilla felony offenses while he was on release in this case. And the judge could consider the aggravating factor he found in this case, a factor that is not mentioned in the presentence report for the Wasilla offenses.
Chilligan also argues that the judge failed to consider his prospects for rehabilitation. But Chilligan's prospects for rehabilitation are not bright. At the time of this offense, he had at least four prior convictions for DUI and two prior convictions for eluding a police officer. He has twice participated in residential treatment programs. Despite this record, he continued to drink and drive; he committed additional felony driving offenses while he was on release in this case. Judge Stewart reasonably concluded that the most important sentencing goal was isolation to prevent Chilligan from committing additional driving offenses.
Judge Stewart did consider Chilligan's good conduct while he was in custody at a community residential center pending resolution of this case. But this recognition did not require the judge to minimize the sentence. Based on Chilligan's misconduct on pretrial release, the judge could reasonably conclude that Chilligan would perform much better in a custodial setting than he would on supervised probation.
Despite the presence of an aggravating factor, Judge Stewart imposed a sentence for felony DUI that was in the middle of the presumptive range. The active sentence for the eluding charge was at the low end of the same range. One year of these sentences was imposed concurrently. Considering Chilligan's prior record and the circumstances of this offense, we conclude that the composite sentence was not clearly mistaken.
We AFFIRM the superior court's judgment and sentence.