Opinion
Court of Appeals No. A-10439.
February 24, 2010.
Appeal from the District Court, Third Judicial District, Palmer, Gregory Heath, Judge, Trial Court No. 3PA-08-3627 CR.
Craig Condie, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. Michael Perry, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Mark A. Downs was convicted of driving with a revoked license. District Court Judge Gregory Heath sentenced Downs to serve 360 days for that offense. He ordered Downs to serve this sentence consecutively to sentences Downs was already serving, giving Downs an aggregate sentence of 900 days to serve.
AS 28.15.291(a).
Downs argues that the 360 days he received in this case is excessive because Judge Heath failed to properly take into account the 540 days he was already serving for other, unrelated convictions. He also contends that Judge Heath failed to consider his rehabilitative potential in sentencing him. For the reasons set out here, we affirm the judgment of the district court.
Why we affirm the sentence
On December 25, 2008, Downs was stopped for a traffic violation. Police discovered that his license was revoked because of a DUI conviction. Downs later pleaded no contest to driving with a revoked license.
At the time of sentencing, Downs had twenty-seven prior convictions. Fourteen of those convictions were for driving with a revoked or suspended license — three of them for offenses that occurred within the year prior to this offense. In one of those cases, in 1993, Downs was classified as a worst offender and sentenced to 360 days to serve. Based on this record, Judge Heath again found that Downs was a worst offender. He also found that Downs's current offense was particularly serious because his license had been revoked for a DUI conviction.
In this appeal, Downs asserts that Judge Heath did not properly consider the other sentences he was serving when he imposed the sentence in this case. But at the sentencing hearing, Downs's attorney repeatedly told Judge Heath that Downs had already been sentenced to serve 610 days for recent, unrelated offenses. (In fact, Downs had been sentenced to serve 540 days.) Downs argued that courts "don't give that kind of time for most felonies." Downs acknowledged his extensive criminal history, but he argued that, in light of the significant time he had to serve in the unrelated cases, Judge Heath could satisfy the sentencing criteria in this case by imposing 60 days to serve. Downs also argued that less time should be imposed in this case because he had not yet had the benefit of the deterrent effect of his unserved time.
Judge Heath was not required to give a shorter sentence in this case simply because Downs already faced a lengthy aggregate sentence for similar criminal offenses, particularly considering that the majority of those sentences were for recent convictions for driving with a revoked license. Because Judge Heath found that Downs was a worst offender — a finding that Downs does not contest — he had the authority to sentence Downs to a year in jail for the conviction in this case.
See Downs v. State, 872 P.2d 1229, 1231 (Alaska App. 1994).
We recognize that Judge Heath did not discuss at great length his decision to give the near-maximum sentence to Downs, even though it would — when imposed consecutively to the other sentences — give Downs a cumulative sentence of 900 days. But the record makes clear that Judge Heath was aware of the sentences that had been imposed in Downs's other cases. Judge Heath concluded that a severe sentence was nevertheless called for in this case because Downs was driving with a license that had been revoked because of a DUI conviction. Judge Heath emphasized the Chaney factor of general deterrence, stating that the community had to get the message that "once you get your license revoked on DUIs, you can't be driving."
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); see also AS 12.55.005 (codifying the Chaney criteria).
Downs was a repeat offender, which indicated that he was a dangerous offender for sentencing purposes. Judge Heath stated that the primary Chaney criteria in these circumstances were community condemnation, deterrence of others, and isolation. Based on Downs's lengthy criminal history, Judge Heath could rightly consider these factors as the primary sentencing goals, and give Downs significant time to serve even though he would receive an aggregate term of 900 days. We approved a lengthy cumulative sentence for similar offenses in Downs v. State.
See State v. Graybill, 695 P.2d 727, 730 (Alaska 1985) (a defendant's history of repeated non-violent misdemeanor crimes supports a finding that the defendant is a dangerous offender).
Dow ns also asserts that Judge Heath failed to properly consider his potential for rehabilitation. It is true that Judge Heath did not expressly address rehabilitation. But as just explained, Judge Heath was aware of the Chaney criteria and listed the three factors that he considered most important in this case: community condemnation, deterrence of others, and isolation. The fact that he did not mention rehabilitation when listing these factors shows that he gave this factor little if any weight. Downs's extensive criminal history and long record of recidivism demonstrate a substantial resistance to deterrence and rehabilitation; hence, Judge Heath did not abuse his discretion by giving little or no weight to Downs's potential for rehabilitation.
See Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
We conclude that the sentence imposed in this case was not clearly mistaken. Conclusion
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).
The district court's judgment is AFFIRMED.