Opinion
Court of Appeals No. A-9421.
July 12, 2006.
Appeal from the District Court, Third Judicial District, Anchorage, Stephanie L. Rhoades, Judge. Trial Court No. 3AN-05-4969 CR.
James V. Gould, Gorton, Logue, and Graper, Anchorage, for the Appellant.
John E. McConnaughy III, Deputy Municipal Attorney, and Frederick H. Boness, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Dennis P. Mouser pleaded no contest to misdemeanor driving under the influence (DUI). The trial court found Mouser a worst offender and sentenced him to 360 days in jail. Mouser challenges his sentence as excessive, arguing that the court should not have found him a "worst offender," should have given him credit for the nine years since his last conviction for driving while intoxicated, and should have found that he had potential for rehabilitation. We affirm.
Anchorage Municipal Code (AMC) 09.28.020(A).
Facts and proceedings
On June 6, 2005, Mouser drove through a stop sign and nearly hit an Anchorage Police Department car. He had a breath alcohol level of .215 percent. The officer arrested him for driving under the influence. After arraignment, Mouser asked to participate in Wellness Court. However, he did not like the assessment from the Salvation Army Clitheroe Center recommending that he spend 42 to 56 days in residential treatment and elected to return to the district court. In district court, Mouser pleaded no contest to DUI.
AMC 09.28.020(A).
Mouser was a fourth offender for purposes of calculating his mandatory minimum sentence, and the trial court was required to sentence him to 120 days to 1 year in prison. In determining the appropriate sentence, the court considered Mouser's serious history of driving while intoxicated — he was convicted of felony driving while intoxicated (DWI) in 1996, misdemeanor DWI in 1980, 1982, and twice in 1993, DWI in Nevada in 1990, DWI in Arizona in 1979, and DWI in California in 1977. The court considered his serious criminal history — he was convicted of assault in 1999, escape in 1998, shoplifting twice in 1993, reckless endangerment in 1993, disorderly conduct in 1993, shoplifting in 1992, assault in 1989, driving with license suspended in 1984, malicious destruction of property in 1981, criminal trespass in 1981, damaging property in 1980, and disorderly conduct in 1980. The court considered the fact that he was driving with a .215 percent breath alcohol level, ran a stop sign, and nearly hit a police cruiser. The court considered his problem with alcohol addiction and his failure to address it. And finally, the court found there was nothing in the regular district court sentencing structure to address rehabilitation that had not been attempted before.
AMC 09.28.020(C)(1)(d) (minimum sentence for driving under the influence if the person has been previously convicted three times is 120 days in prison and a $5,000 fine); AMC 09.48.010(D)(2) (maximum sentence for driving under the influence is one year in prison and a $10,000 fine).
The court found that Mouser was a worst offender, that he had a low prospect for rehabilitation, and that there were strong needs for both deterrence and isolation in this case. The court sentenced him to 360 days in jail. Mouser appeals.
Discussion
This court upholds a sentence unless, after reviewing the record, we are "convinced that the sentencing court was clearly mistaken in imposing the sanction it did."
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). See also McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Williams v. State, 800 P.2d 955, 957 (Alaska App. 1990).
Mouser argues that the court should not have classified him as a worst offender and imposed the maximum sentence "given the unremarkable nature of the circumstances of his instant offense" and the length of time since his previous convictions. We assume, for the purposes of argument, that Mouser's 360-day sentence amounts to a "maximum sentence," even though the court could have imposed an additional five days.
AMC 09.48.010(D)(2).
A maximum sentence is appropriate when the defendant is found to be a "worst offender" — the worst offender "within the group of persons committing the offense in question." In reviewing a "worst offender" finding, we have considered the following factors: "prior criminal convictions, age, military records, employment history, drug or alcohol addiction, presentence report evaluations and recommendations, and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public."
Hintz v. State, 627 P.2d 207, 210 (Alaska 1981); see also State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
Wortham, 537 P.2d at 1120.
Here, Mouser drove with a .215 percent breath alcohol level, ran a stop sign, and nearly hit a police cruiser. He had twenty-one prior convictions, including eight prior DWI convictions. In addition, the court found he had an unaddressed alcohol addiction problem and demonstrated dangerous propensities that posed a clear risk to the public. Even Mouser's counsel at sentencing conceded, "Clearly, I think, his record would allow the court to find him a worst offender."
Mouser points out that his eight previous DWI convictions are ten to thirty years old. But these convictions can be given "[s]ubstantial weight . . . if the present circumstances indicate that the prior conviction[s] [are] still relevant." Here, Mouser's eight prior convictions for driving while intoxicated are relevant to his current driving under the influence. As the sentencing court noted, "The credit that you get for having a lengthy period of time between your felony DWI and this one is that you didn't get charged with a new felony." The sentencing court was not clearly mistaken in finding Mouser a worst offender.
Maal v. State, 670 P.2d 708, 711 (Alaska App. 1983).
See id.
See Sielak v. State, 581 P.2d 226, 228 (Alaska 1978).
Next, Mouser argues that the court should not have rejected his potential for rehabilitation based on his withdrawal from Wellness Court. However, the judge did not punish Mouser for withdrawing from Wellness Court. She simply stated that, in light of his decision not to participate in Wellness Court, the district court sentencing structure did not allow her to address rehabilitation in any way "that hasn't been previously done before." Given that this was Mouser's ninth conviction in thirty years for driving under the influence, the court was not clearly mistaken in concluding that his prospects for rehabilitation were poor.
Finally, Mouser argues that the court should not have rejected his potential for rehabilitation without considering his assessments from the Office of Children's Services and the Clitheroe Center. However, Mouser did not submit the assessments to the sentencing court, and he does not cite any authority that would have required the court to consider them. "[W]here a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal." Accordingly, Mouser's argument is waived. As noted above, this was Mouser's ninth conviction for DWI, and the sentencing court was not clearly mistaken in finding that he had a low chance for rehabilitation.
Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) (citations omitted). See also Alto v. State, 64 P.3d 141, 147 (Alaska App. 2003).
In sentencing Mouser, the court was faced with a defendant who had eight prior convictions for DWI, including a felony conviction in Alaska, thirteen other criminal convictions, an alcohol addiction problem, and demonstrated dangerous propensities that posed a clear risk to the public — in this case, driving with a .215 percent breath alcohol level, running a stop sign, and nearly hitting a police cruiser. The court was not clearly mistaken in finding Mouser a worst offender and sentencing him to 360 days in jail. Conclusion
See McClain, 519 P.2d at 813-14.
Mouser's sentence is AFFIRMED.