Opinion
Court of Appeals No. A-11668 No. 6172
04-22-2015
FRANK JEROME OLSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Brittany L. Dunlop, Assistant District Attorney, Palmer, and Michael C. Geraghty, 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-12-1663 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Brittany L. Dunlop, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
Frank Jerome Olson pleaded guilty to felony driving under the influence as part of a plea agreement that left his sentence to the discretion of the superior court. This was Olson's third conviction for felony DUI; on his second felony DUI conviction, Olson had received the maximum 5-year sentence. For his current felony DUI conviction, the superior court imposed the maximum 5-year sentence, but rejected the State's request to restrict Olson's eligibility for discretionary parole.
Olson argues that his sentence should be vacated because the superior court failed to order an alcohol treatment evaluation under AS 28.35.030(h) before sentencing him. He also argues that his sentence is clearly mistaken because: (1) by refusing to reduce his bail, the superior court interfered with his efforts to obtain alcohol treatment and a fetal alcohol syndrome evaluation, efforts he could have relied on to argue for a mitigated sentence; (2) the court failed to adequately justify the sentence it imposed; and (3) the sentence is excessive.
For the reasons explained here, we reject these claims and affirm Olson's sentence.
Facts and proceedings
On June 30, 2012, in the early morning hours, an Alaska state trooper stopped a vehicle that was speeding at 104 miles per hour on the Glenn Highway. When the trooper contacted the driver, Frank Olson, he observed signs that Olson was intoxicated, and a later breath test showed that Olson's blood-alcohol level was more than twice the legal limit. Based on this evidence, and Olson's prior DUI convictions, the State charged Olson with felony DUI.
See AS 28.35.030(a)(2) (establishing the legal limit of .08 percent blood alcohol).
AS 28.35.030(a), (n). Olson was also charged with driving while license revoked, AS 28.15.291(a)(1), and with providing false information to a peace officer, AS 11.56.800(a)(1)(B)(i), but those charges were dismissed as part of the plea agreement.
During his pretrial incarceration, Olson asked the superior court to reduce his bail so he could attend the Salvation Army Adult Rehabilitation Program, one of three substance abuse treatment programs that had approved him for inpatient treatment. Superior Court Judge Kari Kristiansen denied Olson's request for reduced bail, finding that Olson's long criminal history, including his prior convictions for escape and failure to appear, made him a public safety and flight risk.
Olson subsequently reached a plea agreement with the State. Before sentencing, he again asked the court to reduce his bail, and to continue his sentencing, so he could be evaluated for fetal alcohol spectrum disorder. Olson's attorney indicated that he would not seek a sentence below the presumptive range based on that evaluation, but that he believed the evaluation would aid the court in imposing appropriate probation conditions. Judge Kristiansen denied the request, reiterating that reduced bail was not appropriate in Olson's case.
The case then proceeded to sentencing before Judge Kristiansen. Because Olson had two or more prior felony convictions, he faced a presumptive sentencing range of 3 to 5 years for his offense. The State urged the judge both to impose the maximum 5-year term and to restrict Olson's eligibility for discretionary parole, arguing that Olson had performed poorly on probation in the past and had failed to take advantage of prior opportunities for treatment.
See AS 12.55.125(e)(3).
Olson's attorney disputed the State's assertion that Olson was not amenable to treatment. The attorney recommended a sentence of 5 years with 2 years suspended (3 years to serve), and a condition of probation requiring Olson to obtain an alcohol treatment evaluation and to follow the recommendations of that evaluation. The attorney also asked the judge not to restrict Olson's parole eligibility, arguing that the court had too little information before it to assess Olson's rehabilitative prospects. Specifically, the attorney noted that Olson had been evaluated for alcohol treatment some eleven months earlier, when he sought admission into the Salvation Army program, but that a "complete" treatment assessment had not been done.
Upon hearing this, the sentencing judge asked the defense attorney whether the court was required by statute "to have a complete assessment before I sentence him?" The defense attorney replied that "my understanding has always been that it's not required." The attorney then vacillated:
I've not read any case that ... clarified that to be honest. I think that [courts are] supposed to [order an evaluation], I think that the legislature wanted folks rehabilitated and wanted an assessment so the court had a full picture. I don't know whether ... a full assessment is required or not.The defense attorney did not ask the superior court to delay Olson's sentencing or to order an assessment under the statute. Instead, the attorney argued that the court should impose a sentence that included probation, and not restrict Olson's eligibility for discretionary parole, because without a full alcohol treatment assessment the court had a "limited picture" of Olson's prospects for rehabilitation.
The judge imposed the maximum sentence of 5 years. But she did not restrict Olson's discretionary parole eligibility — agreeing with the defense attorney that "I may not have a complete picture here." The judge adopted the defense attorney's view that the Parole Board would be better positioned in the future to assess whether Olson should be released on discretionary parole.
Why we reject Olson's claim that his sentence should be vacated because the superior court did not order a substance abuse evaluation under AS 28.35.030(h)
Olson argues that his sentence should be vacated because the court did not order the substance abuse evaluation required by AS 28.35.030(h). Under AS 28.35.030(h), when a person is convicted of felony driving under the influence, the court is required to order an alcohol treatment evaluation "before the court imposes sentence."
More specifically, the statute requires the court to order the felony defendant to be evaluated by the alcohol safety action program. See AS 28.35.030(h).
As just explained, Olson did not request an alcohol treatment evaluation under AS 28.35.030(h). And when the sentencing judge asked the defense attorney if the court was required by statute to order an evaluation before sentencing Olson, the defense attorney expressed uncertainty about whether one was required. The attorney also did not seek a continuance of the sentencing for an evaluation to occur.
Because Olson did not argue that his sentencing could not go forward without the evaluation required under AS 28.35.030(h), we review his claim on appeal for plain error. We find plain error only if the error "(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial."
Moreno v. State, 341 P.3d 1134, 1136 (Alaska 2015) (quoting Adams v. State, 261 P.3d 758, 764 (Alaska 2011)).
Here, the record shows Olson was not prejudiced by the court's failure to order an evaluation under AS 28.35.030(h). Olson's current offense was his sixth DUI conviction and his third felony DUI conviction. The legislative purpose in requiring a treatment evaluation from the alcohol safety action program before sentencing a defendant for felony DUI is to ensure that the court has the information it needs to determine an appropriate sentence and conditions of probation.
See Minutes of House Judiciary Committee, House Bill 159, statement of Chairman Brian Porter, Tape 95-36, Side A (March 27, 1995); see also Minutes of House Finance Committee, House Bill 159, statement of Chairman Brian Porter, Tape HFC 95-100, Side 1 (April 26, 1995).
The sentencing judge was aware from the presentence reports that Olson had an alcohol problem, that he needed treatment, and that he had been unsuccessful in his prior treatment attempts. The judge also knew from the earlier bail proceeding that while in pretrial detention in this case, Olson had sought treatment and had been interviewed and accepted into three residential treatment programs, including the Salvation Army program. In addition, at the sentencing hearing, the defense attorney and the sentencing judge discussed the Salvation Army's treatment assessment and its recommendation that Olson receive residential treatment.
On appeal, Olson does not explain what specific additional information any new evaluation would have provided to the sentencing judge in his case. Nor do we think such an evaluation would have led the court to impose a more favorable sentence. As we have already noted, this was Olson's third felony DUI conviction, and the sentence the superior court imposed — the maximum 5-year sentence — was the same sentence Olson received for his second felony DUI conviction. Moreover, Olson's attorney successfully persuaded the sentencing judge not to limit Olson's discretionary parole for the specific reason that the court did not have a complete treatment evaluation before it.
We conclude that the superior court did not commit plain error by failing to order an alcohol treatment evaluation under AS 28.35.030(h).
Why we conclude that Olson's sentence is not clearly mistaken
Olson separately argues that his 5-year sentence is clearly mistaken because the superior court did not release him on bail to attend residential treatment and to obtain a fetal alcohol syndrome evaluation. He argues that the effect of these bail decisions was to deprive him of the ability to offer mitigating evidence that he had been diagnosed with fetal alcohol spectrum disorder and had successfully completed a court-ordered alcohol treatment program.
See AS 12.55.155(d)(20)(A).
See AS 12.55.155(d)(17).
Although the availability of treatment outside of jail is certainly a factor a court can consider when deciding to release a defendant on bail, the court's ultimate decision must rest on whether there are conditions of release that "will reasonably assure the [defendant's] appearance and protect the ... community."
AS 12.30.011(b).
Olson has a lengthy history of DUI offenses, as well as prior convictions for escape and failure to appear. Olson did not challenge at the time, nor does he challenge now, the superior court's assessment of his flight risk and danger to the public. Thus, the superior court acted properly when it denied Olson's request for a reduction in bail, even though one consequence of Olson's continued incarceration was his inability to pursue out-of-custody evaluation and treatment options.
Olson also argues that the sentencing judge did not make adequate findings that the maximum 5-year sentence was necessary to protect the public. And he argues that his sentence is excessive given his demonstrated interest in rehabilitation and his affirmative steps to obtain treatment.
As the superior court found, Olson was stopped for driving in excess of 100 miles per hour with a blood-alcohol level more than twice the legal limit. The court found that four aggravating factors under AS 12.55.155 applied to Olson's offense, all of them stemming from his extensive and repetitive criminal conduct: (c)(15) (three or more prior felonies), (c)(20) (on probation or parole for another felony when he committed the offense), (c)(21) (history of similar offenses), and (c)(31) (criminal history includes five or more convictions for class A misdemeanors). Olson had forty-six prior criminal convictions, including five convictions for DUI. For his most recent felony DUI conviction, he had received the maximum 5-year sentence.
The sentencing court found that Olson had not taken advantage of the prior opportunities for rehabilitation that had been offered to him. The court concluded that rehabilitation was not a significant factor in Olson's case and that the maximum 5-year sentence was necessary to protect the public. We conclude that these findings are supported by the record, that the findings justify the sentencing court's decision, and that Olson's sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
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Conclusion
The judgment of the superior court is AFFIRMED.