Opinion
Court of Appeals No. A-11461 Trial Court No. 3PA-08-1105 CR No. 6042
04-09-2014
DOROTHA L. DUPREE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Tracey Wollenberg, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Dorotha L. Dupree crossed the center line of the Parks Highway and collided head-on with another vehicle, seriously injuring two people. A chemical test three hours after the collision revealed that Dupree's blood alcohol level was .227 percent, nearly three times the legal limit. The State charged Dupree with multiple offenses based on this conduct.
See AS 28.35.030(a)(2).
Dupree's case was ultimately resolved by a plea agreement. Dupree pleaded guilty to one consolidated count of first-degree assault and one count of misdemeanor driving under the influence, and the State dismissed the other charges. Dupree admitted that the aggravating factor set out in AS 12.55.155(c)(10) applied to her conduct — that the first-degree assault was among the "most serious" within the definition of the offense. Dupree also agreed to an active term of imprisonment of 8 to 10 years for the assault conviction. Sentencing was otherwise left to the court to decide.
AS 11.41.200(a)(1).
AS 28.35.030.
At the sentencing hearing, the superior court noted that Dupree's offense was "about as bad as it gets" for a first-degree assault, both in terms of Dupree's level of intoxication and the seriousness of the injuries, which left the victims with lasting disabilities. The court also found that Dupree, at 51 years old, was a "poster child ... for alcoholism and a lifelong alcoholic," who had failed at many previous attempts at rehabilitation. The court emphasized the Chaney sentencing goals of isolating Dupree and expressing the community's condemnation of her crimes. After weighing these factors, the court imposed a sentence of 12 years with 3 years suspended (9 years to serve) for the assault and a consecutive sentence of 60 days with 40 days suspended (20 days to serve) for driving under the influence.
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS 12.55.005 (codifying sentencing factors stated in Chaney).
After imposing sentence, the court informed Dupree of her right to appeal the components of the sentence she had not agreed to as part of her plea bargain with the State. The judge also stated:
[R]egarding the truth in sentencing components, you will receive — you may receive up to one third of your jail time off for good behavior. Regarding parole, you must serve at least one third of your sentence or any mandatory minimum term before you'll be eligible for parole.Under the "truth in sentencing" provisions in AS 12.55.025(a)(3)(B) and Alaska Criminal Rule 32.2(c)(2)(B), a sentencing court is required to inform the defendant, if applicable, of the "approximate minimum term of imprisonment the defendant must serve before becoming eligible for release on discretionary parole."
In Dupree's case, the judge gave Dupree incorrect information about when she would be eligible for discretionary parole. Contrary to the information Dupree received from the sentencing judge, Dupree would not be eligible for discretionary parole after she served one-third of her sentence. Instead, she was not eligible for discretionary parole until she served her presumptive sentence of 9 years' imprisonment (less good time) plus one-fourth of her 20 days' imprisonment. In other words, Dupree would not be eligible for discretionary parole until around the time that she would otherwise be released on mandatory parole.
Dupree was subject to a presumptive term of 7 to 11 years on the first-degree assault charge because she caused serious physical injury and used a dangerous instrument (the motor vehicle) during the commission of the offense. AS 12.55.125(c)(2)(A).
See AS 33.16.090(b)(2) (prisoner sentenced within presumptive range set by AS 12.55.125(c) may not be released until he or she has served the imposed term, minus good time); (b)(7) (prisoner must serve one-quarter of the total active term of imprisonment imposed for each additional crime, and this term must be consecutive to the time imposed for the primary crime). See generally Luckart v. State, 314 P.3d 1226, 1230-31 (Alaska App. 2013) (describing the relationship between discretionary parole eligibility and presumptive sentencing).
See AS 33.16.010(a), (c).
After the Department of Corrections informed Dupree that she was effectively not eligible for discretionary parole, Dupree's attorney filed a motion for a new sentencing hearing. The motion argued that Dupree was entitled to a new sentencing hearing because the superior court "sentenced Ms. Dupree while believing incorrectly ... that she would be eligible for discretionary parole."
The superior court denied the motion for a new sentencing hearing, stating that it had reviewed its own remarks at sentencing as well as Jackson v. State and that, "[b]ased upon memory and a review of the sentencing hearing, the court finds that no reliance was placed upon the issue of parole eligibility when sentencing Dorotha Dupree in this case."
616 P.2d 23, 25 (Alaska 1980) (disapproving consideration of a defendant's parole eligibility when determining the appropriate length of sentence).
Dupree appeals.
Why we conclude the sentencing court's error in informing Dupree that she would be eligible for discretionary parole was harmless
Dupree asserts — and the State concedes — that the sentencing court was wrong when it declared at sentencing that Dupree would be eligible for discretionary parole after serving one-third of her sentence. Dupree argues that because the court sentenced her under the mistaken assumption that she would be eligible for discretionary parole at that time, she is entitled to a new sentencing hearing "under the correct assumptions."
See AS 33.16.090(b)(2).
But the trial court specifically found that it had not relied on any assumptions about Dupree's discretionary parole eligibility when it made its sentencing decisions. The record supports this finding. When the court imposed its sentence of 12 years with 3 years suspended, 9 years to serve, the court discussed the terms of Dupree's plea agreement (which required an active term of imprisonment between 8 to 10 years) and the relevant Chaney criteria. The court did not mention Dupree's parole eligibility until the end of the hearing, and then only in the context of the "truth in sentencing" requirement that the sentencing court inform the defendant of parole eligibility.
See AS 12.55.025(a)(3)(B); Alaska R. Crim. P. 32.2(c)(2)(B).
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Dupree argues that the trial court did not independently set out its findings and recollections on this issue, but instead simply adopted the State's proposed order. But Dupree cites no authority for the proposition that a sentencing court may not rely on an order proposed by one of the parties if the order accurately reflects the court's independent assessment of the record. Dupree has advanced no evidence suggesting the superior court did not independently review the record or that the court's findings based on that review were clear error. Additionally, we fail to see how the remedy Dupree is requesting — a new sentencing hearing — would be meaningful given the superior court's finding that the original sentencing was not influenced by any assumptions regarding Dupree's discretionary parole eligibility.
Conclusion
The superior court's decision is AFFIRMED.