Opinion
Court of Appeals No. A-12274 Court of Appeals No. A-12298 No. 6397
11-09-2016
MICHAEL SUNG SOO LEE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Christina M. Sherman, Deputy District Attorney, Anchorage, and James E. Cantor, Acting 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 Nos. 3AN-13-13231 CR & 3AN-07-14505 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Appearances: Alexander T. Foote, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Christina M. Sherman, Deputy District Attorney, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
On December 16, 2013, Anchorage police officers arrested Michael Sung Soo Lee for driving under the influence (DUI). A subsequent breath test revealed that Lee had a blood-alcohol content of .143, significantly over the legal limit of .08.
At the time of his arrest, Lee had multiple prior DUI convictions, including a felony DUI conviction from 2005 which resulted in a lifetime revocation of his driver's license. Lee was also on felony probation for a 2007 felony criminal mischief conviction.
The State charged Lee with felony DUI and driving while license revoked (DWLR). The State also filed a petition to revoke Lee's probation in the 2007 felony case. (This was the second petition to revoke in that case.)
AS 28.35.030(n).
Former AS 28.15.291(a)(1) (2015).
Lee subsequently pleaded no contest to the new charges and admitted to violating his probation. In the interim between his arrest and sentencing, Lee made significant efforts towards rehabilitation — completing two substance abuse programs, maintaining steady employment, getting married, and buying a home.
As a third felony offender, Lee faced a presumptive sentencing range of 3 to 5 years for the felony DUI conviction, and a minimum sentence of 30 days on the misdemeanor DWLR conviction. Lee also faced 23 months on the petition to revoke his probation in the 2007 felony case.
AS 28.35.030(n); former AS 12.55.125(e)(3) (2015).
Former AS 28.15.291(b)(1)(D) (2015).
At sentencing, Superior Court Judge Michael Spaan found two statutory aggravators with regard to the felony DUI conviction: (1) Lee was on felony probation at the time of the crime and (2) Lee had five or more prior class A misdemeanor convictions.
AS 12.55.155(c)(20).
AS 12.55.155(c)(31).
The judge recognized Lee's recent efforts towards rehabilitation and noted that Lee had good prospects for rehabilitation if he remained sober. But based on Lee's long history of alcohol-related criminal offenses, the judge chose to prioritize the sentencing goals of isolation, individual and general deterrence, and community condemnation over rehabilitation.
See AS 12.55.005; State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
The judge therefore imposed a sentence of 4 years' incarceration for the felony DUI conviction and 30 days for the DWLR conviction. The judge also imposed 30 days of Lee's suspended time for the probation violation in the 2007 case, returning Lee to probation on that case with approximately 22 months still suspended. Lee's composite term to serve was therefore 4 years and 2 months.
On appeal, Lee challenges his composite sentence as excessive, arguing that the judge failed to adequately consider his recent efforts toward rehabilitation.
We review sentencing decisions under the "clearly mistaken" standard of review, which is founded on two concepts: "first, that reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] second, that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision falls within a permissible range of reasonable sentences." The clearly mistaken standard is thus a deferential standard that "implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify."
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (citation and internal quotations omitted).
McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Here, the record shows that the judge recognized Lee's good prospects for rehabilitation if he remained sober. Indeed, this is one of the reasons why the judge returned Lee to probation in the older case without imposing much suspended time. The judge concluded, however, that Lee's significant history of prior alcohol-related crimes and the fact that he committed the current crime while on felony probation required a sentence in the middle of the applicable presumption range rather than at the low end.
Having independently reviewed the record in this case, we conclude that the composite sentence of 4 years and 2 months to serve is not clearly mistaken.
See Id. at 813-14. --------
We accordingly AFFIRM the judgment of the superior court.