Opinion
Court of Appeals No. A-12110 No. 6278
01-27-2016
CHARLES LEWIS MUMCHUCK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Shawn D. Traini, Assistant District Attorney, Palmer, and Craig W. Richards, 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 authority for any proposition of law. Trial Court No. 3PA-13-1749 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Shawn D. Traini, Assistant District Attorney, Palmer, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Under the terms of a plea agreement, Charles Lewis Mumchuck pleaded guilty to felony driving under the influence, with open sentencing. In exchange, the State dismissed two other charges arising from the same incident: felony breath-test refusal and driving with a suspended or revoked license.
Mumchuck received a sentence of 5 years to serve for this felony DUI conviction, and he contends in this appeal that his sentence is excessive.
The present offense was Mumchuck's sixth DUI conviction — and his fourth felony DUI conviction. Mumchuck was on probation (and enrolled in a therapeutic court rehabilitative program) when he committed the offenses in the present case.
AS 28.35.030(n).
Felony DUI is a class C felony with a maximum sentence of 5 years' imprisonment. As a "third felony offender" for presumptive sentencing purposes, Mumchuck faced a presumptive sentencing range of 3 to 5 years' imprisonment.
AS 28.35.030(n) and AS 12.55.125(e), respectively.
AS 12.55.125(e)(3).
The sentencing judge found that Mumchuck's case was aggravated under three of the clauses of AS 12.55.155(c):
• (c)(15): Mumchuck had more than two prior felony convictions;
• (c)(20): Mumchuck was on felony probation when he committed his present offense; and
• (c)(21): Mumchuck had a history of repeated similar offenses.
In her sentencing remarks, the judge acknowledged that Mumchuck had sincerely tried to cope with his alcohol addiction. But the judge noted that, despite "the best of intentions", Mumchuck had "repeatedly relapsed" — and, "more importantly", his relapses included "the choice to drive and to place the public at risk".
The sentencing judge pointed to the fact that Mumchuck was discharged from the military because of his alcohol problem, and that he "[had] been through a number of different rehabilitation programs". Based on the fact that Mumchuck continued to drink — and, more specifically, to drink and drive — despite these therapeutic efforts, the judge concluded that isolation had to be the primary goal in fashioning Mumchuck's sentence:
The Court: [A]s much as it pains me to say it, at this point rehabilitation is not the paramount [sentencing criterion] for me — because you've had ... a number of different rehabilitation models to work with, and those have not been successful for you. The sad fact is, at this point, the primary consideration that I have to factor into my sentence is isolation, because I need to protect the community from the very significant risk that you would engage in this conduct again. ...Based on these findings, the judge imposed the maximum sentence: 5 years to serve.
[Y]our past history suggests that that is very likely. And the risk that [any relapse] presents to the community is so high, and so significant, that protecting the public through isolation is the paramount criteri[on].
. . .
I don't believe that probation or suspended time is going to [deter Mr. Mumchuck], because of Mr. Mumchuck's history.
In this appeal, Mumchuck argues that the sentencing judge gave insufficient weight to the sentencing goal of rehabilitation. But the sentencing judge bears primary responsibility for determining the priority and relative weight of the various sentencing goals in any particular case. In Mumchuck's case, the judge expressly considered Mumchuck's potential for rehabilitation, and she declared that there was little reason to expect a change in Mumchuck's behavior, based on his history of similar offenses and his repeated failed efforts at rehabilitation. Instead, the judge concluded that isolation should be the paramount goal of Mumchuck's sentence. Given the record in this case, the judge's decision was reasonable.
Pickard v. State, 965 P.2d 755, 760 (Alaska App. 1998).
Mumchuck next argues that his 5-year sentence is "greater than ... was needed to deter [him] from future criminal conduct". But the record shows that prior convictions and prior treatment programs had failed to deter Mumchuck. And the sentencing judge expressly found that, given Mumchuck's history, his risk of re-offending was "high" and "significant". Given this record, a 5-year sentence is not manifestly disproportionate to the goals of deterrence and isolation.
Finally, Mumchuck points out that the sentencing judge never expressly declared Mumchuck to be a "worst offender" — a finding that is required by Alaska law before a judge imposes the maximum sentence for the defendant's crime. But though the sentencing judge did not expressly find Mumchuck to be a "worst offender", both the Alaska Supreme Court and this Court have repeatedly stated that we will uphold a maximum sentence if the record shows that the sentencing judge implicitly made the required finding.
State v. Wortham, 537 P.2d1117, 1120 (Alaska1975); Howell v. State, 115 P.3d 587, 592-93 (Alaska App. 2005).
See, e.g., Jacinth v. State, 593 P.2d 263, 267 (Alaska 1979) ("[T]here is no requirement that the sentencing judge utter the phrase 'worst offender.' "); Howell v. State, 115 P.3d 587, 593 (Alaska App. 2005); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Here, as we have already noted, the sentencing judge found that Mumchuck had a lengthy history of driving under the influence, and that he had not responded to repeated rehabilitative efforts. The judge further concluded that it would be fruitless to release Mumchuck on probation again, because no conditions of probation would deter him.
Instead, the judge concluded that Mumchuck needed to be isolated from the community "because [of the] need to protect the community from the very significant risk that [he] would engage in this conduct again."
These findings and conclusions add up to an implicit finding that Mumchuck was a "worst offender".
See Smith v. State, 187 P.3d 511, 527 (Alaska App. 2008). --------
For these reasons, we AFFIRM the superior court's sentencing decision.