Opinion
A-13588 7065
06-28-2023
GILBERT RUSTY JOHNSON JR., Appellant, v. STATE OF ALASKA, Appellee.
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Prince of Wales, M. Jude Pate, Judge. Trial Court No. 1PW-18-00128 CR
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
In 2017, Gilbert Rusty Johnson Jr. was driving on the road from Klawock to Hydaburg in a recently acquired (but worn out) pickup truck with two passengers. As Johnson rounded a corner, he lost control of the vehicle; he attempted to brake but the brakes did not work. The truck veered off the road and down an embankment, striking a tree. All three people were injured, and one of the passengers died at the scene. The other passenger was briefly hospitalized and then released.
After the accident, Johnson acknowledged that he had smoked two bowls of marijuana about two hours before the crash, and he submitted to a blood draw. Testing of Johnson's blood showed low levels of amphetamine, methamphetamine, morphine, and cannabinoids. An inspection of the truck Johnson was driving revealed that it was in poor condition, with several areas of mechanical and structural failure that were likely the result of age and neglect. In particular, there were frayed wires running to the brakes and portions of the brake lines had been taped together.
The State initially charged Johnson with manslaughter and driving under the influence. But pursuant to an agreement with the State, Johnson pleaded guilty to a reduced charge of criminally negligent homicide. The prosecutor acknowledged that the levels of controlled substances in Johnson's blood were "on the low end of the range for people being convicted of drugged driving," and the State dismissed the driving under the influence charge. But the prosecutor maintained that the combination of the substances in Johnson's system and the condition of the vehicle amounted to the criminally negligent conduct necessary to establish Johnson's guilt of criminally negligent homicide.
AS 11.41.120(a)(1) and AS 28.35.030(a)(1), respectively.
AS 11.41.130.
According to the prosecutor, Johnson had ".024 milligrams of amphetamine, .19 milligrams of methamphetamine, some THC, and some morphine in his system."
At the time of the accident, Johnson was twenty-five years old and had no prior convictions. He was therefore a first felony offender. As part of the plea agreement, Johnson agreed to a set term of imprisonment - 7 years with 4 years suspended (3 years to serve). The remaining terms of his sentence, including the period of driver's license revocation, were left open to the sentencing court.
The presumptive sentencing range was 1 to 3 years. Former AS 12.55.125(d)(2)(A) (2017). Because Johnson stipulated that, under AS 12.55.155(c)(10), his conduct was among the most serious included in the definition of the offense, the court was authorized to sentence Johnson to up to 10 years. AS 12.55.125(d).
By statute, because Johnson was convicted of criminally negligent homicide resulting from driving a motor vehicle, the superior court was required to revoke his driver's license for a minimum period of 30 days. The court revoked Johnson's license for a period of 10 years. In doing so, the court relied on the fact that Johnson had caused another person's death. In particular, the court analogized Johnson's case to a felony driving under the influence conviction, stating that for such a conviction, "where no one is even hurt, a license is revoked for 10 years." Given that Johnson's conduct had resulted in another person's death, the court found that "a similar imposition of a loss of license [for] 10 years" was warranted.
AS 28.15.181(a)-(b).
(A felony driving under the influence conviction actually requires a lifetime driver's license revocation. The court's reference to a "10-year revocation" appears to refer to the fact that, with certain exceptions, the driver's license may be restored after a revocation period of 10 years.)
AS 28.35.030(n)(3).
AS 28.35.030(o), (u), (v).
At the same time, the court found that Johnson did not pose a great risk to public safety and declined to impose the 5-year probation term requested by the author of the presentence report. Instead, the court imposed a 4-year probation term, stating that "four years' probation should tell us whether or not Mr. Johnson is going to abide by the conditions and refrain from this sort of behavior in the future."
Johnson now appeals, arguing that revoking his driver's license for a period of 10 years is excessive. Having reviewed the record, we conclude that we need not directly reach that issue because the trial court's reasoning was legally flawed and inconsistent with the court's other findings. We therefore vacate the term of revocation and remand Johnson's case to the superior court for further proceedings.
Why we vacate the 10-year driver's license revocation
AlaskaStatute28.15.181 governs court-ordered driver's license revocations for certain convictions. In general, the statute creates two sets of mandatory revocation periods - those governing convictions for driving under the influence and for refusal to submit to a chemical test, and those governing other motor vehicle related convictions, including "manslaughter or negligent homicide resulting from driving a motor vehicle."The length of the mandatory minimum period of revocation depends on the number (and frequency) of prior convictions that a defendant has within a certain category of crimes.
AS 28.15.181(a)-(c). The statute also creates a third category of mandatory revocation for the offense of driving while license canceled, suspended, or revoked. AS 28.15.181(d).
For driving under the influence and refusal convictions, the statute requires a minimum period of revocation of 90 days for a first conviction, 1 year for a second conviction, 3 years for a third conviction, and 5 years for a fourth or subsequent conviction. The look-back period for the prior convictions, defined to include prior driving under the influence and refusal convictions, is generally fifteen years. However, if a person who drives under the influence (or refuses to submit to a chemical test) has two driving under the influence or refusal convictions within the ten-year period preceding the current offense (or one prior felony driving under the influence or refusal conviction during that period), the current offense is classified as a felony, and the court must impose a lifetime revocation. As we noted earlier, a court may restore the driver's license of a person convicted of felony driving under the influence after a period of ten years if certain conditions are met.
AS 28.15.181(c); see also AS 28.15.181(i) (defining "previously convicted").
AS 28.15.181(c) (using the phrase "previously convicted" in relation to prior convictions); AS 28.15.181(i) (defining "previously convicted" by reference to AS 28.35.030); AS 28.35.030(w)(4) (setting out a fifteen-year look-back period for prior convictions).
AS 28.35.030(n).
AS 28.35.030(o). Since the time of Johnson's offense, the legislature has excluded from the ten-year restoration provision felony driving under the influence cases in which the person was also convicted of homicide or certain assaults. FSSLA 2019, ch. 4, § 95.
The second category of convictions requiring a driver's license revocation is the one that is applicable in this case, and it includes the following convictions: (1) manslaughter or negligent homicide resulting from driving a motor vehicle; (2) a felony in the commission of which a motor vehicle is used; (3) failure to stop and render aid after a motor vehicle accident resulting in the death or injury of another; (4) perjury or a false statement under oath to the Department of Administration under a law relating to motor vehicles; (5) reckless driving; (6) using a motor vehicle in unlawful flight to avoid arrest by a police officer; and (7) certain forms of vehicle theft.
AS 28.15.181(a)-(b).
For a first conviction of any of these crimes, including manslaughter or criminally negligent homicide resulting from driving a motor vehicle, the court must revoke the defendant's driver's license or privilege to drive or obtain a license for a minimum period of 30 days. For a subsequent conviction within this category of crimes (occurring "within 10 years after a prior conviction"), the court must revoke the defendant's license for a minimum period of 1 year for a second conviction, and a minimum period of 3 years for a third or subsequent conviction.
AS 28.15.181(b).
Id.
Johnson was a first offender, and he had no criminal history. Having been convicted of criminally negligent homicide resulting from driving a motor vehicle, Johnson was therefore subject to a minimum license revocation period of 30 days.
In this case, the superior court concluded that a revocation period of 10 years was warranted since Johnson's conduct had actually caused another person's death. But the 30-day minimum revocation period to which Johnson was subject applies categorically to all first offenders who have committed either manslaughter or criminally negligent homicide resulting from driving a motor vehicle. That is, the statute already contemplates conduct resulting in another person's death. Accordingly, the fact that Johnson caused a death during his operation of a motor vehicle did not serve to differentiate his case from other similar cases, in the absence of any other identified aggravating circumstances.
When assessing the need for a lengthy period of revocation, a sentencing court must consider the nature and circumstances of the offense as a whole in addition to the defendant's criminal history. The consequences of a defendant's conduct are certainly relevant to that determination. But beyond noting that Johnson's conduct had caused a death, the court did not engage in any further case-specific analysis as to why a 10-year revocation period was necessary.
Bottcher v. State, 300 P.3d 528, 532-33 (Alaska 2013) (discussing Dodge v. Anchorage, 877 P.2d 270 (Alaska App. 1994), and Fine v. State, 22 P.3d 20 (Alaska App. 2001)); see also AS 12.55.005(2) & (4) (providing that, in imposing a sentence, the court shall consider "the prior criminal history of the defendant and the likelihood of rehabilitation" and "the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order").
See, e.g., Kraft v. State, 1990 WL 10513286, at *1 (Alaska App. Apr. 4, 1990) (unpublished) (affirming 10-year revocation, in connection with conviction for criminally negligent homicide, where the defendant drove with a blood alcohol level of .20 percent, striking and killing a bicyclist, and defendant had two prior misdemeanor convictions for driving under the influence).
The court likened Johnson's case to a felony driving under the influence conviction. But as we noted earlier, driving under the influence convictions are subject to a separate revocation scheme.
AS 28.15.181(a), (c); AS 28.35.030(b)(3), (n)(3).
More importantly, a conviction for felony driving under the influence reflects a pattern of intoxicated driving and is therefore indicative of a persistent substance abuse problem requiring public protection. In order to be convicted of felony driving under the influence, a person must have been previously convicted at least twice within the prior ten years of either driving under the influence or refusal to submit to a chemical test (or a single felony under those sections). That is, a felony driving under the influence conviction is premised on a person's recidivism.
AS 28.35.030(n).
In contrast, Johnson had no prior criminal history of any sort, and there was no evidence presented that he had a persistent substance abuse problem or a pattern of driving issues. He had controlled substances in his system during the motor vehicle accident in this case, and the court could rightfully take that into account. But the prosecutor acknowledged that the amount of drugs in Johnson's system was on the "low end" of what the State would potentially prosecute for driving under the influence, and the State's theory of conviction relied on a combination of the substances in Johnson's system plus the poor condition of Johnson's vehicle.
Moreover, the superior court's own findings appear to contradict its conclusion that the type of revocation period called for by the felony driving under the influence statute was warranted in this case. The court specifically found that isolation was not an important sentencing goal because, given Johnson's lack of criminal history, he did not appear to pose a great risk to public safety. As a result, the court did not impose the 5-year term of probation requested by the author of the presentence report, but rather a 4-year term of probation. The court remarked that "four years' probation should tell us whether or not Mr. Johnson is going to abide by the conditions and refrain from this sort of behavior in the future." Despite these findings, the court imposed a license revocation that was more than triple the 3-year mandatory minimum revocation period for a person convicted of criminally negligent homicide who has multiple prior convictions.
AS 28.15.181(b)(2) (establishing a mandatory minimum revocation period of 3 years for a third or subsequent driving-related conviction set out in AS 28.15.181(a)(1)-(4), (6), (7), or (10)). We note that when a violation of the traffic laws results in a death, the maximum period of license revocation that a court may impose is 3 years. AS 28.15.182(a)-(b).
We are not saying that Johnson's revocation period must be 30 days or a period close to that. Indeed, the court ordered that Johnson was precluded from operating a motor vehicle during his 4-year period of probation, and he does not challenge that probation condition.
See Bottcher, 300 P.3d at 533 (holding that the mandatory minimum revocation periods set out in AS 28.15.181 do not reflect a legislative preference for short revocation periods).
We note that, because the court ordered the period of license revocation to run from the date of sentencing, see AS 28.15.211(b), the practical implication of the court's imposition of a 10-year license revocation was that Johnson's period of license revocation would extend approximately 8 years past his release from custody and 4 years past the anticipated end of his probation term (accounting for his 3-year active term of imprisonment, less good-time credit).
But given the court's primary reliance on the fact that Johnson caused a death during his operation of a motor vehicle, and its seemingly contradictory findings regarding Johnson's risk to public safety, we must remand this case for reconsideration of the period of license revocation. We recognize the breadth of the applicable revocation range and the difficulty of selecting an appropriate length within that range. But we note that our case law reflects that revocations of the length imposed in this case have typically been imposed either when the conduct in the case was particularly reckless or egregious, or when the defendant had a history of impaired driving, or some combination thereof.
See, e.g., King v. State, 2009 WL 5154205, at *5 (Alaska App. Dec. 30, 2009) (unpublished) (affirming 15-year revocation, in connection with convictions for first- and third-degree assault, failure to render aid, driving under the influence, and reckless driving, when the defendant drove through downtown Anchorage at a high speed and with a blood alcohol level of at least .22 percent - endangering many people and causing serious injury - and the defendant had an extensive history of driving violations and a federal drug conviction for which he was on probation); Richardson v. State, 47 P.3d 660, 664-65 (Alaska App. 2002) (affirming 20-year revocation for "particularly egregious" conduct; the defendant, an alcoholic, drove drunk after having been warned not to drive, killing two children and injuring two others; the court noted that a large portion of the revocation would run while the defendant was serving his sentence); Kraft v. State, 1990 WL 10513286, at *1 (Alaska App. Apr. 4, 1990) (unpublished) (affirming 10-year revocation, in connection with conviction for criminally negligent homicide, where the defendant drove with a blood alcohol level of .20 percent, striking and killing a bicyclist, and defendant had two prior convictions for driving under the influence). See also Wylie v. State, 797 P.2d 651, 654-55, 663 n.11 (Alaska App. 1990) (upholding 4-year license revocation for a first felony offender with seven prior driving offenses, who was convicted of leaving the scene of an accident, failing to render assistance, failing to report an accident, and driving while intoxicated after his wife jumped or fell from the moving vehicle); Williams v. State, 1987 WL 1357115, at *1-2 (Alaska App. July 8, 1987) (unpublished) (upholding 5-year license revocation for defendant with two prior driving while intoxicated convictions, who was convicted of hindering prosecution in connection with disposing of a dead body, and during the offense, was driving intoxicated).
On remand, the court should consider the facts and circumstances of this particular offense, and Johnson's criminal history or record of substance abuse (or lack thereof), in determining the appropriate length of his license revocation.
Johnson's challenge to the court's limited license ruling
We must address one additional point. Near the end of the sentencing hearing, the court raised the possibility of a limited work driver's license under AS 28.15.201. The State agreed that this option would be available to Johnson in the future. The court then indicated that it would be open to considering an application for a limited license and a modification of Johnson's probation conditions once Johnson obtained employment.
See AS 28.15.181(b) (recognizing that a sentencing court may authorize a limited license when "the court determines that the person's ability to earn a livelihood would be severely impaired and a limitation under AS 28.15.201 can be placed on the license that will enable the person to earn a livelihood without excessive danger to the public"); AS 28.15.201(a) (providing that a court "revoking a person's driver's license, privilege to drive, or privilege to obtain a license under AS 28.15.181(b) may, for good cause, impose limitations upon the driver's license of a person that will enable the person to earn a livelihood without excessive risk or danger to the public").
On appeal, Johnson argues that the court erred in not immediately granting him a limited license. But a court may only authorize a limited license when certain conditions are met, and one of these conditions is a "certification of employment."Thus, the superior court was prohibited from granting Johnson a limited license before he obtained certification of employment. Further, when the court raised the prospect of a limited license sua sponte, Johnson's attorney was unfamiliar with the requirements and unprepared to address the limited license issue altogether.
AS 28.15.201(b)(1).
Johnson also argues that the court improperly conditioned his ability to receive a limited license on his having fully paid his restitution. But this argument is based on a misreading of the record. At the sentencing hearing, the court made clear that it would consider an application for a limited license for work purposes once Johnson obtained employment. It did not condition that consideration on Johnson paying the full restitution. (The court did, however, condition reconsideration of a different probation condition - the requirement that Johnson be employed - on full payment of his restitution. Specifically, the court indicated that it would be receptive to a motion to modify the employment requirement to include subsistence and care-taking activities as substitutes for employment once restitution was fully paid.)
Accordingly, we find no merit to Johnson's appellate challenges to the court's handling of the limited license issue. However, either on remand or at some later time, the court may consider the possibility of imposing a limited license if Johnson makes a proper application to do so.
See Hill v. State, 32 P.3d 10, 12 (Alaska App. 2001) (stating that "a sentencing court's power to grant a post-sentencing request for a limited license under AS 28.15.201(a) is inherent in the defendant's original sentence, much like a sentencing court's power to modify a defendant's conditions of probation").
Conclusion
We VACATE the period of Johnson's driver's license revocation and remand for further proceedings consistent with this opinion.