Opinion
Court of Appeals No. A-9546.
May 21, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton and Phillip R. Volland, Judges. Trial Court No. 3AN-03-4935 CR.
David Reineke, 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 Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alejandro R. Marqueda was convicted of felony driving while under the influence, felony refusal to submit to a chemical test, fourth-degree assault, driving while license revoked, resisting arrest, and providing false information. He was given a composite sentence of 40 months to serve with an additional 39 months of suspended time. On appeal, he asserts that his investigative stop was unlawful and that his composite sentence is excessive. As explained below, we find that the investigative stop was lawful. We also find that the composite sentence is not clearly mistaken. Accordingly, we affirm the judgment of the superior court.
AS 28.35.030(n), AS 28.35.032(p), AS 11.41.230(a)(1), AS 28.15.291(a)(1), AS 11.56.700(a)(1), and AS 11.56.800, respectively.
Facts and proceedings
On May 14, 2003, at about 3:00 a.m., Anchorage Police Officer Shane Pollock was driving southbound in the far left lane on C Street. A vehicle driving ahead of him in the middle lane of C Street braked so suddenly and violently that it veered, tires screeching and "out of control," into the far right lane of traffic. There, the vehicle came to a complete stop at a slight angle. The stop was so out of control that Pollock thought the vehicle would go off the roadway and crash through a cable that separated the sidewalk from a parking lot.
Pollock saw no reason for the sudden and violent stop. He pulled in behind the vehicle but did not immediately try to contact the driver. The driver waited about five seconds — "long enough to make [Pollock] wonder why he wasn't going" — before continuing southbound on C Street.
Pollock decided to watch the vehicle to see what the driver would do next. He followed the vehicle for approximately twelve to fourteen blocks, watching it swerve within its lane. He finally decided to stop the vehicle at C Street and Fireweed Lane. He contacted the driver, who initially provided a false driver's license, but was later identified as Marqueda.
Pollock saw evidence that Marqueda was intoxicated and investigated him for driving while under the influence. Marqueda was uncooperative at the scene, inside the police vehicle, and at the police station. Based on Officer Pollock's investigation and Marqueda's criminal history, Marqueda was charged with felony driving while under the influence, felony refusal to submit to a chemical test, resisting arrest, fourth-degree assault, driving while license revoked, providing false information, and driving without insurance.
Before trial, Marqueda moved to suppress the evidence on the ground that his traffic stop was unlawful. After an evidentiary hearing, Superior Court Judge Michael L. Wolverton found that Marqueda's driving was "clearly erratic" and "needed to be checked out." He therefore denied the motion to suppress. A jury then convicted Marqueda of all charges except driving without insurance, which was apparently dismissed by the State.
Marqueda was a second felony offender and subject to presumptive sentencing under the former presumptive sentencing scheme. The superior court found one aggravator — that Marqueda had a history of assaultive behavior. Marqueda was sentenced to a composite term of 40 months to serve, with an additional 39 months of suspended time.
AS 12.55.155(c)(8).
This appeal followed.
Discussion Why we find that the investigative stop was lawful
Marqueda claims that under Coleman v. State, the investigative stop was unlawful because there was no evidence that he violated any traffic regulations or placed any person in danger.
553 P.2d 40 (Alaska 1976).
Under Coleman, the police may conduct an investigative stop when there is "a reasonable suspicion that imminent public danger exists or serious harm to persons or to property has recently occurred." An investigative stop of a vehicle is justified when the officer has "a suspicion that an imminent public danger exist[s] by virtue of the manner in which the [suspect] vehicle [is] being operated."
Id. at 46.
Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).
Pollock testified that he stopped Marqueda because he was driving erratically. Pollock's observation of Marqueda's unexplained sudden stop and his loss of control of the vehicle, followed by his "swerving" within his lane when he continued traveling, provided Pollock with reasonable suspicion that an imminent public danger existed. It is true that Pollock's testimony about the ongoing swerving came during trial. But evidence developed at trial may be used to support a lower court's ruling on a pre-trial motion. In any event, Pollock's police report — which was attached to the State's opposition to Marqueda's motion to suppress — stated that Marqueda was "swerving" within his lane as he drove toward Fireweed.
Waters v. State, 64 P.3d 169, 171 (Alaska App. 2003); Hubert v. State, 638 P.2d 677, 680 n. 2 (Alaska App. 1981).
In Hamman v. State, we upheld an investigative stop based on similar facts. Hamman was stopped after an officer following him saw his van "weaving quite noticeabl[y]" within his lane of travel for approximately one-half to three-quarters of a mile. "The road surface was dry and the lane markers were clearly visible." At one point, Hamman's "passenger-side tires crossed over the white fog line and onto the right shoulder of the road; Hamman drove on the shoulder for about thirty feet before he `jerked' the van back into the lane."
883 P.2d 994 (Alaska App. 1994).
Id. at 994-95.
Id. at 995.
Id.
id.
Under Ebona and Hamman, Pollock had reasonable suspicion — based on Marqueda's unexplained erratic driving — that an imminent public danger existed "by virtue of the manner in which [the] vehicle was being operated." Judge Wolverton therefore did not err when he found that the investigative stop was justified.
See Ebona, 577 P.2d at 701.
Why we find that Marqueda's composite sentence is not excessive
Marqueda was convicted of two class C felonies and four class A misdemeanors. Under Alaska's pre-March 2005 sentencing law, Marqueda, as a second felony offender, was subject to a presumptive term of 2 years, and a maximum term of 5 years, for each class C felony. Based on Marqueda's four prior convictions for assault, Superior Court Judge Phillip R. Volland found one statutory aggravating factor — repeated assaultive behavior. Judge Volland imposed a composite sentence of 40 months to serve with an additional 39 months of suspended time.
Former AS 12.55.125(e).
AS 12.55.155(c)(8).
On appeal, Marqueda claims that his composite sentence of 40 months to serve is clearly mistaken. He argues that Judge Volland had no good reason to impose a composite term to serve that exceeded the 3-year presumptive term for a third felony offender convicted of class C felony offenses.
See State v. Wentz, 805 P.2d 962, 964 (Alaska 1991) (noting that the sentence imposed by the trial court may be reversed only when the appellate court is convinced the sentencing court was clearly mistaken).
Marqueda's argument — that, absent good cause, a sentencing judge may not sentence a second felony offender to a term of imprisonment exceeding the presumptive term that would apply to a third felony offender — is based on an analogy to the Austin rule that formerly applied to the sentencing of first felony offenders under Alaska's pre-March 2005 presumptive sentencing law.
The Austin rule — later codified informer AS 12.55.12 5(k)(2) — declared that a first felony offender's time to serve should not exceed the presumptive term applicable to a second felony offender unless the sentencing judge found one or more of the aggravating factors listed in AS 12.55.155(c) or extraordinary circumstances as defined in AS 12.55.165. Marqueda argues that a similar rule should apply to the sentencing of a second felony offender — i.e., that a second felony offender should not receive more time to serve than the presumptive term applicable to a third felony offender unless the sentencing judge finds aggravating factors or extraordinary circumstances. We rejected this argument in Harris v. State.
Austin v. State, 627 P.2d 657 (Alaska App. 1981).
980 P.2d 482, 486 (Alaska App. 1999).
In Harris, we observed that Austin only ad dressed sentencing for first felony offenders. We then noted that even if the rule in Austin applied by analogy to sentencing for second felony offenders, the court was justified in imposing a sentence in excess of the presumptive term for a third felony offender in that case because the court found an aggravating factor.
Id. at 486.
Id. at 486.
Marqueda's basic claim is that his composite sentence is excessive. When we review a composite sentence that exceeds the presumptive term for the defendant's most serious offense, our focus is on the totality of the circumstances. Here, looking at the totality of the circumstances, the composite sentence does not fall outside the range of reasonable sentences authorized by the legislature. A presumptive sentence is considered the appropriate sentence for a typical felony offender who engaged in typical conduct within the definition of the offense. Although the presumptive term for the defendant's most serious offense is an important benchmark, it can be exceeded for any good reason.
See Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App. 1987).
Wentz, 805 P.2d at 965.
Clark v. State, 8 P.3d 1149, 1150 (Alaska App. 2000).
Farmer, 746 P.2d at 1301.
Marqueda's most serious offenses were felony driving while under the influence and felony refusal to submit to a chemical test. Each offense called for a 2-year presumptive term for the typical offender. But Marqueda's conduct was not typical. In addition to his erratic driving, Marqueda was verbally and physically uncooperative with the police, and by his actions he placed Pollock and himself in danger. Pollock could see, when Marqueda got out of his vehicle, that he had a holster under his jacket. But Marqueda ignored Pollock's demands to keep his hands away from the holster and instead reached inside his coat where the holster was located. He also refused to keep his hands where Pollock could see them. When another officer arrived, they discovered that Marqueda had a can of pepper spray in the holster. Later, after Marqueda was handcuffed, he tried to walk away from the officers. When placed in Pollock's vehicle, Marqueda began to spit and kick the vehicle's windows. Later, at the police station, Marqueda assaulted Pollock by head-butting him in the face.
Marqueda was forty-eight years old when he was sentenced in this case. He had a prior felony conviction and six prior misdemeanor convictions. He had previously been convicted of a felony assault, two misdemeanor assaults, and two misdemeanors for driving while under the influence. He also had a prior driving while license suspended conviction. Additionally, while on bail awaiting trial for the current offenses, he committed and was convicted of another misdemeanor assault for stabbing his son with a knife (he was indicted for first-degree felony assault).
As already noted, Judge Volland found one aggravator — a history of assaultive behavior based on Marqueda's four prior assault convictions. He rejected Marqueda's claim that his conduct in this case was least serious. In fashioning Marqueda's sentence, Judge Volland placed equal weight on the Chaney criteria of rehabilitation, deterrence of others, and community condemnation. He found that Marqueda had been sentenced to "fairly minimal" periods of incarceration in the past and that a considerably longer period of incarceration was necessary "to impress upon [Marqueda] the significance of his actions and to deter him from future drinking and driving and assaultive behavior." He also found that the lengthy sentence was necessary to reflect the community's concerns about the "seriousness of the conduct and the risk undertaken when drinking and driving." Judge Volland found that the sentence he imposed — 40 months to serve plus an almost equal period of suspended time — balanced the need for rehabilitation in the community with the deterrence and community condemnation goals achieved by "substantial jail time." He also found that the community considered an assault on a uniformed police officer serious misconduct, and that the sentence for this offense should be served consecutively to the felony sentences. The record supports these findings.
See State v. Chaney, 477 P.2d 991, 999 (Alaska 1970); AS 12.55.005 (codifying the Chaney sentencing criteria).
Looking at the totality of the circumstances, we cannot conclude that Marqueda's composite sentence is clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.