Opinion
Court of Appeals No. A-9613.
April 15, 2009.
Appeal from the Superior Court, Third Judicial District, Homer, Ethan Windahl and Charles T. Huguelet, Judges, Trial Court No. 3HO-03-298 CR.
Paul E. Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Dale F. Van Doren was convicted of felony driving while under the influence (DUI), felony breath-test refusal, driving while his license was revoked, and for his failure to obey a citation to appear. On appeal, he contends that his refusal charge should have been dismissed because police mistakenly advised him that if he refused, he would be charged with a misdemeanor rather than a felony offense. He also asserts that his composite sentence is excessive. For the reasons explained here, we affirm the judgment of the superior court.
AS 28.35.030(a)(1) (n).
AS 28.35.032(p).
AS 28.15.291(a).
AS 12.25.230(a).
Facts and proceedings
On June 29, 2003, Alaska State Trooper Arthur Dunn saw a vehicle moving erratically. The vehicle was swerving from the center of the road to the shoulder of the road in a continuous manner and crossed the center line three times. In addition, the vehicle was proceeding at 28 miles per hour in a 35 mile-per-hour zone, which contributed to the officer's suspicion that the driver was impaired. Dunn consequently stopped the vehicle and approached the driver, Van Doren.
Van Doren had watery and bloodshot eyes, and there was "a very strong odor of alcohol coming from his breath." Dunn also noted that Van Doren swayed when he had to stand in one spot for a period of time. Van Doren admitted that he had consumed four or five mixed drinks prior to driving, but claimed that he had consumed them the day before. Later, however, he told Dunn that one reason he did not want to take the breath test was because he thought he would "blow above the legal limit."
During the stop, Dunn also learned that Van Doren's driver's license was revoked because of an earlier DUI conviction. Later, Van Doren failed the one field sobriety test he was asked to perform: the horizontal gaze nystagmus test. No other tests were administered.
When Dunn told Van Doren that he had to take a breath test, Van Doren replied that he had "already been through it once before" and that "I want to tell you right now, I am not going to take a breathalyzer." After Dunn read the implied-consent notice, Van Doren still refused to take the test. When asked his reasons for refusing, Van Doren said that the breath test was something he had "not agreed with forever" and that he did not think he should have to take the test. A little while later, he repeated that he did not feel that he had to take the test and had no intention of doing so. And, as already mentioned, Van Doren said that he was afraid that he would test over the legal limit.
The implied-consent notice that Dunn read to Van Doren was out-of-date. Consequently, Van Doren was informed that because he had only one DUI conviction within the preceding five years, he would only be charged with an additional misdemeanor offense if he refused. But in fact, because the legislature had changed the felony "look-back period" from five to ten years, Van Doren — who had three qualifying convictions within the preceding ten years — would actually be charged with a felony if he refused.
See Ch. 63, §§ 10, 18, 21, SLA 2001.
Van Doren was initially charged with misdemeanor DUI, refusal, and driving while his license was suspended. Later, however, he was charged with felony DUI, felony refusal, driving while his license was suspended, and for his failure to obey a citation to appear. Prior to trial, Van Doren moved to dismiss the refusal charge. He contended that the trooper's error was a "material misleading statement" that "illegally dissuaded [him] from taking the breath test." He provided an affidavit that stated, "If I had known that a refusal was a felony offense, I would have asked to call an attorney, and if [I] could not reach an attorney, I would have taken the breath test." The State conceded that the trooper misinformed Van Doren concerning the penalty he would face if he refused. But the State, relying on the analysis discussed in Gundersen v. Anchorage, argued that dismissal was unwarranted because Van Doren had not shown that the trooper actually dissuaded Van Doren from taking the test.
762 P.2d 104 (Alaska App. 1988), aff'd on reh'g, 769 P.2d 436 (Alaska App. 1989).
The motion was submitted on the pleadings at the defendant's request. Superior Court Judge pro tem Ethan Windahl denied the motion. But other than to cite our decision in Yang v. State, he did not provide any explanation for his decision.
107 P.3d 302 (Alaska App. 2005).
Van Doren was tried by a jury. While the jury was deliberating, Van Doren entered a plea to driving while his license was revoked. The jury later found him guilty of the remaining three charges.
Superior Court Judge Charles Huguelet presided over the sentencing proceedings, which included the four convictions from this case as well as a separate conviction for felony failure to appear. For the four convictions in this case, Judge Huguelet sentenced Van Doren to a composite term of 5 years', 3 months' imprisonment, with 2 years and 9 months suspended. For the felony failure to appear, he imposed a sentence of 1 year with 6 months suspended. (Van Doren does not appeal this sentence.) This appeal followed.
Why Van Doren was not entitled to have the refusal charge dismissed
On appeal, Van Doren claims that the refusal charge should have been dismissed because Trooper Dunn misinformed him about the penalty he faced if he refused. Van Doren concedes that police need only inform a person arrested for DUI that refusal to submit to a chemical test is a crime. But he asserts that due process requires that when police advise arrestees that they face a misdemeanor or a felony, they must be accurate. In Van Doren's case, he asserts that he reasonably and detrimentally relied on the inaccurate notice that Trooper Dunn provided. He argues that because he was misinformed of the actual penalty he faced, he did not make his decision to refuse in a knowing and intelligent manner.
The heart of Van Doren's due process argument is that he refused to take the breath test based on the trooper's warning that he was committing a misdemeanor rather than a felony. But during the trial, Judge Windahl ultimately found that Van Doren had in fact decided to refuse the breath test before he was given the inaccurate warning. It is true that Judge Windahl made this finding to resolve an evidentiary question; but in light of this finding, Van Doren does not explain how his due process claim has any weight. We conclude that under the circumstances of this case, there was no due process violation.
To explain this conclusion, we need to set out how this case was litigated. In Van Doren's motion to dismiss the refusal charge, he contended that the trooper's error was a "material misleading statement" that "illegally dissuaded [him] from taking the breath test." He provided an affidavit that stated, "If I had known that a refusal was a felony offense, I would have asked to call an attorney, and if [I] could not reach an attorney, I would have taken the breath test."
Van Doren's motion to dismiss was still pending a week before trial. At trial call on February 24, 2005, Van Doren's attorney reminded the judge that he had not yet ruled on the motion. But Van Doren's attorney also told Judge Windahl that a hearing was not necessary and that she was willing to submit the matter on the pleadings. When Van Doren asked his attorney why there would be no evidentiary hearing, the attorney explained that the dispute over the inaccurate notice was a legal issue.
Just prior to trial, Judge Windahl denied the motion. He found that the law required only that police inform DUI arrestees that refusal is a crime, and it did not matter if the arrestee faced a misdemeanor or a felony. Judge Windahl based his ruling on our decision in Yang v. State. In Yang, we explained the elements of refusal: that the person was arrested for DUI, was advised of his legal obligation to take the test, and knowingly refused to take the test. We concluded that warning a person that refusal to take the test is itself a crime satisfied the second requirement — that the person was advised of the legal obligation to take the test.
107 P.3d 302 (Alaska App. 2005).
Id. at 308-12.
Id.
The day before trial and prior to jury selection, Van Doren asked the court for permission to argue that due to the defective notice, he was only guilty of misdemeanor refusal. The State objected, arguing that evidence of the inaccurate notice was irrelevant. Judge Windahl took the matter under advisement.
The next day, Judge Windahl addressed the issue of the inaccurate notice and Van Doren's assertion that he had relied on it. The judge reiterated his decision that, as a matter of law, the notice was sufficient because it informed Van Doren that refusal was a crime. But Judge Windahl then indicated that he would let the parties put their evidence on before he ruled whether Van Doren's reliance on the flawed notice could be submitted to the jury. In response, Van Doren told the court that he wanted to make sure that his point for appeal was preserved: that he could not knowingly refuse the test if he did not know the penalty for refusal.
Trial then began. During that first day of trial, Trooper Dunn testified about the DUI processing. In addition, the jury heard the audio recording of that processing and Van Doren's refusal.
The next day, before trial resumed, Judge Windahl again ruled that the warning provided was adequate as a matter of law. He then denied Van Doren's request to present evidence to the jury that he had relied on the notice the trooper had given. He found that, based on the evidence he had heard, Van Doren had decided not to take the test before he was given the flawed warning. In other words, it did not matter that the notice was inaccurate because Van Doren had made his decision to refuse before he was given the notice. Van Doren asked permission to further argue the point and to make a record for appeal, but he did not offer any additional evidence.
Based on this record, Van Doren has not shown that he was denied due process. He concedes that, as a matter of law, Judge Windahl was correct when he found that the flawed notice adequately warned Van Doren of his obligation to submit to the breath test. In fact, we reached the same conclusion in Olson v. State, an unpublished opinion where — relying in part on Yang — we rejected a claim nearly identical to Van Doren's. The only significant difference between Olson and this case is that Van Doren supported his motion to dismiss with an affidavit indicating that he had relied to his detriment on the inaccurate implied-consent notice.
Alaska App. Memorandum Opinion and Judgment No. 5038 (Feb. 8, 2006), 2006 WL 306907 at *4-5.
Although Van Doren filed an affidavit, he waived the right to a pre-trial hearing to address his assertions when he submitted the motion on the pleadings. That said, Judge Windahl's finding that Van Doren had not relied on the flawed notice was not made solely on the pleadings. As already explained, on the first day of trial, Judge Windahl informed the parties that he would not rule on Van Doren's request to tell the jury that he had relied on the flawed notice until after the judge had heard the evidence regarding the DUI processing. At the time Judge Windahl made his ruling, Van Doren asked to argue his position, but he did not ask for permission to present any further evidence.
Prior to making this ruling, Judge Windahl heard the comments made by Van Doren during his DUI processing (which were made before Trooper Dunn gave the implied-consent notice). When Dunn told Van Doren that he had to take a breath test, Van Doren said that he had "already been through it once before" and that "I want to tell you right now, I am not going to take a breathalyzer."
Judge Windahl also heard Van Doren's reasons for refusing after Dunn read the implied consent warning — Van Doren said that the breath test was something he had "not agreed with forever" and that he did not think he should have to take the test. Van Doren also said that he was afraid that he would test over the legal limit.
Judge Windahl was aware of Van Doren's affidavit, in which Van Doren claimed that if he had been told that the refusal was a felony, he would have tried to contact an attorney and, failing that, he would have taken the breath test. Van Doren did not ask to present any other evidence.
This record supports Judge Windahl's finding that Van Doren's decision to refuse was not based on the inaccurate warning. We conclude that Van Doren has not shown that in his case, the inaccurate notice violated due process.
Why Judge Huguelet had good reasons justifying the length of Van Doren's composite sentence
Van Doren contends that Judge Huguelet wrongly found that Van Doren was manipulative, and then — based on this finding — erroneously found that this was an aggravated case for sentencing purposes. He argues that Judge Huguelet found that Van Doren was manipulative because, at sentencing, the judge said that Van Doren "went through a whole bunch of attorneys."
At sentencing, the prosecutor argued that Van Doren's sentence should focus on isolating him for the protection of the public. The prosecutor pointed out that, at the time Van Doren was sentenced for the instant convictions, he had prior DUI convictions from 1993 and 2001, a prior refusal in 1997, and five prior convictions for driving while his license was either revoked or suspended, with yet another charge pending for an offense that occurred while on release for the instant case. He also had unspecified pending theft charges as well as a number of prior assault convictions. Additionally, along with the instant convictions, Van Doren was sentenced for a separate felony for his failure to appear that occurred during the pendency of this case. There was also a pending matter concerning Van Doren's consumption of alcohol and tampering with an alcohol monitoring bracelet he was ordered to wear while on release awaiting trial.
For his part, Van Doren conceded that he had an alcohol problem, but argued that Judge Huguelet should give him a second chance instead of putting him in jail. Van Doren said that he was an asset to the community and that all of his legal issues were caused by alcohol. He blamed his alcohol problems on his ex-wife.
Judge Huguelet opened his remarks by saying, "since I've had this case, I guess the one observation that I've had consistently throughout is you've been manipulative and there's always an excuse, there's always a rationalization for every missed date, for every miscue, for everything." He then listed some examples: "you went through a whole bunch of attorneys. You brought your father up here for a third-party and then someone else . . . [Y]ou admit that you have an alcohol problem, but, you know, you're sitting here trying to blame it on something else and trying to blame the alcohol abuse for your violations of the law. Well, you're accountable for . . . [your violations], whether you're an alcoholic or not."
After noting that being manipulative was part of alcoholism, Judge Huguelet said, "[O]nce you get the . . . [alcoholism] under control, then hopefully the manipulative behavior will be under control. But until you do, you're not an asset to the community. You're a liability. You're a danger if you're driving and you're drinking, and you're a danger if you're out there untreated and continuing to live in the community."
Because Van Doren had three prior convictions for DUI or refusal, he was subject to a composite mandatory minimum term of 480 days for his current DUI and refusal convictions. Each conviction had a mandatory minimum of 240 days' imprisonment, and these mandatory minimums had to be served consecutively. Because he had prior convictions for driving while his license was either suspended or revoked, he was subject to a mandatory minimum of 10 days for driving with a revoked license. There was no minimum term for the failure to obey a citation.
See AS 28.35.030(u)(4).
See AS 28.35.030(n)(1)(B); Baker v. State, 30 P.3d 118, 119-20 (Alaska App. 2001).
AS 28.15.291(b)(1)(B).
Judge Huguelet imposed the following sentences: 2 years with 1 year suspended for DUI, 2 years with 1 year suspended for refusal, 1 year with 6 months suspended for driving with a revoked license, and 3 months with all suspended for failure to obey a citation. All of this time was to run consecutively. This gave Van Doren a composite sentence of 2 years and 6 months to serve.
Judge Huguelet also imposed 1 year with 6 months suspended for the unrelated felony failure to appear. Van Doren does not challenge this sentence, nor do the parties discuss it in this appeal.
Because Van Doren's felony offenses occurred in 2003, the former presumptive-sentencing scheme applied. As a first felony offender, there was no presumptive sentence for the Class C felony convictions — instead, he faced a maximum of 5 years for each conviction. Under the former statute, the presumptive term for a second felony offender was 2 years. Based on the decision in Austin v. State, to impose more than 2 years for each felony, Judge Huguelet had to find extraordinary circumstances or an aggravating factor. Here, Judge Huguelet imposed individual sentences that did not require any additional findings because no single sentence violated the Austin limit.
See former AS 12.55.125(e) (2004).
See former AS 12.55.125(e)(1) (2004).
627 P.2d 657, 657-58 (Alaska App. 1981) superseded by statute as stated in Dayton v. State, 120 P.3d 1073 (Alaska App. 2005).
See former AS 12.55.125(k) (2004) (codifying the " Austin limit").
The record demonstrates that there were good reasons for Van Doren's composite sentence. One reason was Judge Huguelet's finding that Van Doren refused to take responsibility for his actions, was willing to manipulate others, and rationalized his criminal conduct. Another reason was the judge's finding that Van Doren was a danger to the community. As already explained, Judge Huguelet told Van Doren that he needed to get his alcoholism under control, and "then hopefully the manipulative behavior will be under control. But until you do, you're not an asset to the community. You're a liability. You're a danger if you're driving and you're drinking, and you're a danger if you're out there untreated and continuing to live in the community."
At the time Judge Huguelet imposed the sentences in the instant case, he also sentenced Van Doren for an unrelated felony conviction. The presentence report showed Van Doren's extensive criminal history. For instance, the presentence report showed that since 1993, Van Doren "has been involved in criminal activity or has been before the Court on a nearly continuous basis." The report also pointed out that although courts had been lenient with him with his prior offenses, he continued to offend: "Suspended sentences and suspended fines have had no apparent deterrent effect on this individual. . . . [H]e continues to offend and shows no sign that he can or will be rehabilitated."
Finally, the prosecutor pointed out during sentencing that Van Doren had committed a number of criminal violations during the pendency of this case (other than the felony failure to appear). According to the presentence reports, during the pendency of the instant cases, Van Doren had been charged with thirty-five counts in four new criminal cases. He was charged with one new charge of driving with a revoked license, as well as thirty-four counts of theft for issuing bad checks to employees and writing insufficient fund checks to businesses. He was also arrested and charged with violating his conditions of release.
Based on this record, Van Doren has not shown that Judge Huguelet imposed an improper composite sentence.
Why we find that Judge Huguelet was justified when he found that Van Doren was manipulative
In challenging his composite sentence, Van Doren primarily takes issue with Judge Huguelet's finding that Van Doren was manipulative. He contends that this finding was based on Judge Huguelet's observation that Van Doren "went through a whole bunch of attorneys." He now asserts that it was improper for Judge Huguelet to assess Van Doren's relationships with his attorneys. He argues that he had no control over the fact that some of his attorneys had to withdraw because of poor health, and others had to withdraw because he could not afford to pay them.
During the course of the proceedings — from his arrest in June 2003 until his trial in March 2005 — six private attorneys appeared on Van Doren's behalf. Of these, two withdrew because of poor health while two, and possibly a third, withdrew because of nonpayment of fees. The sixth — also a private attorney — represented Van Doren at his trial.
Van Doren may be blameless for the two attorneys who withdrew for health reasons, but it was not unreasonable for Judge Huguelet to hold him responsible for retaining other attorneys and then not paying them. Each time Van Doren retained a new attorney, the case was delayed to allow that new attorney time to prepare for trial. Ultimately, Van Doren's course of conduct delayed trial for nearly two years. This conduct not only supports a finding that Van Doren was manipulating the system, but also indicates that he was manipulating the attorneys he hired but did not pay.
Furthermore, the record indicates that when finding Van Doren was manipulative, Judge Huguelet did not rely solely upon Van Doren's history of running through a number of attorneys. He also relied on Van Doren's own allocution wherein Van Doren blamed his legal troubles on his alcoholism and then blamed his problems with alcohol on his ex-wife. And Judge Huguelet referred to Van Doren's conduct during the pendency of the case — particularly Van Doren's "rationalization" for his two failures to appear and other issues.
In addition, Judge Huguelet had the presentence report that showed that Van Doren had a history of alcohol-related charges "suggest[ing] . . . significant alcohol abuse" and that he had more than thirty charges pending for writing bad checks to employees and businesses, as well as other theft charges. Van Doren did not challenge the presentence report at sentencing or otherwise explain or discuss these incidents.
Based on this record, Van Doren has not shown that Judge Huguelet erred when he found that Van Doren was manipulative. Nor has he shown that the judge erred when he based this finding in part on Van Doren's course of conduct with his attorneys.
Why we find that Judge Huguelet did not abuse his discretion when he ordered Van Doren to serve his sentences for DUI and refusal consecutively
Van Doren also contends that Judge Huguelet abused his discretion when he imposed the sentences for DUI and refusal consecutively. He argues that Judge Huguelet abused his discretion because he was unaware that he had the authority to impose these terms to be served partially concurrently. But the record does not support this argument.
As already explained, the mandatory minimum sentence Van Doren faced for each of his two felony convictions was 240 days, or 8 months. Judge Huguelet was required to impose these mandatory minimum terms consecutively, for a total of 16 months.
The transcript shows that both attorneys informed Judge Huguelet that, because of Van Doren's prior DUI and refusal convictions, the minimum term Judge Huguelet could impose for the current DUI and refusal convictions was 8 months. Actually, it could be argued that the attorneys — in particular, the defense attorney — told the judge that the total consecutive time he had to impose was 8 months, rather than 16 months. For instance, the prosecutor said, "[B]ecause of his priors he would need to do a minimum, a very minimum of 8 months consecutively on both the DUI and then on the refusal. So that's the very minimum he could do on those two." When the defense asked for a sentence of 120 days, Judge Huguelet asked for clarification based on the State's representation that 8 months was the minimum. The defense attorney said, "It's presumptive 120 days on each of the two, Your Honor. It would be a presumptive 8 months total for the DUI [and the] refusal[.]"
But even if Judge Huguelet thought that 8 months was the total amount he was required to impose, this misunderstanding was in Van Doren's favor. More importantly, this record shows that Judge Huguelet was told that only part of the two sentences had to be imposed consecutively.
Van Doren argues that the attorneys misled Judge Huguelet by telling him that the sentences were "presumptive" as opposed to mandatory minimums. It is true that the defense attorney used the incorrect term of "presumptive," rather than the correct term of "mandatory minimum." But even if Judge Huguelet did not recognize that the attorney was mislabeling the sentences, both attorneys made it clear that the judge was required to impose only the mandatory minimum portion of the sentences consecutively.
In short, the record shows that Judge Huguelet was aware that he was required to impose only the mandatory minimums for the DUI and the refusal consecutively.
Why we find that the composite sentence was not excessive
Van Doren does not otherwise argue that his composite sentence is excessive. Based on the record, we conclude that his composite sentence is not clearly mistaken. The maximum time he faced for all four convictions was 12 years and, based on Austin, unless there were extraordinary circumstances, he faced a maximum of 6 years. Because of his prior convictions, he had to serve a minimum of 1 year and 4 months. He was sentenced to serve 2 years and 6 months. In light of Van Doren's lengthy criminal history as reflected in his presentence report, his unwillingness to take responsibility for his actions, and the danger he posed to the community when driving intoxicated and without a license, Judge Huguelet's sentencing decision fell within a permissible range of reasonable sentences. Conclusion
See State v. Hodari, 996 P.2d 1230, 1232-33 (Alaska 2000).
The superior court's judgment is AFFIRMED.