Opinion
Court of Appeals No. A-8776.
February 8, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court No. 3AN-02-4962 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Following a Cooksey plea, Frank J. Olson was convicted of felony driving while under the influence, felony refusal to submit to a breath test, and driving while license suspended or revoked. On appeal, Olson claims that the charges against him should have been dismissed because the police had no lawful reason to contact him. He also contends that the State could not charge him with breath test refusal — or that evidence that he refused the breath test should have been suppressed — because the police used an out-of-date form that indicated that refusal to submit to a chemical test would be a felony offense if he had two prior convictions within the preceding five years, when, in fact, the governing time period was ten years. He also asserts that there was no basis for charging him with driving with a revoked or suspended driver's license because no one witnessed him driving. Finally, he claims that his sentence violates the United States Supreme Court's decision in Blakely v. Washington because the judge, not the jury, found that his offense was aggravated. For the reasons explained below, we reject Olson's claims and affirm his convictions and sentence.
See Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
AS 28.35.030(n), AS 28.035.032(p), and AS 28.15.291(a)(1), respectively.
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Although the State contests all of Olson's claims, the State also argues that the Cooksey plea was flawed because only one of the merit issues that Olson preserved — whether the police contact was unlawful — disposes of this entire case. To the extent that the plea agreement violates Cooksey, we exercise our discretion to grant a petition for review. Facts and proceedings
See Wilburn v. State, 816 P.2d 907, 910 (Alaska App. 1991); see also Oveson v. Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978).
Olson was charged with felony driving while under the influence, felony refusal to submit to a chemical test, and driving while license suspended or revoked. He moved to dismiss the felony driving while under the influence charge on the ground that the police had lacked reasonable suspicion to contact him. He separately moved to dismiss the other two counts. He argued that the refusal charge should be dismissed because the police read him an out-of-date "implied consent" form that indicated that his refusal would be a felony if he had two prior convictions within five years, instead of within ten years as was actually the case. He argued that the driving while license suspended or revoked charge should be dismissed because the State had offered no evidence in its pleadings that would show he was driving the car. Finally, based on the out-of-date implied consent notice, he moved to suppress the evidence that he refused the breath test. An evidentiary hearing was held, where the following evidence was developed.
On June 12, 2002, Anchorage Police Officer Michael Jensen was dispatched to check on a vehicle located in the intersection of East 53rd Avenue and Windflower Street. The dispatch was based on a citizen's report of a man in the vehicle, slumped over the steering wheel. When Jensen arrived, he found
[Olson] in the driver's seat of the vehicle, [which] was on a slight rise, a slight hill[.] . . . I saw [Olson's] vehicle kind of parked in the middle of an intersection. . . . [T]he vehicle was right in the middle of the roadway[.] . . . [Olson's] vehicle was in drive and the vehicle was running. I could see exhaust coming out of the tailpipe. And Mr. Olson appeared to be passed out. He was unresponsive.
Jensen testified that "[i]nitially, my first concern was [Olson's] safety and his health." He also said that Olson's car "was blocking the roadway."
Another police officer, Sergeant William T. Kaas, parked beside Olson's car. Kaas reached into Olson's car and turned off the engine after placing the transmission into park. The officers then tried to rouse Olson. They first spoke to him, but got "no response whatsoever." They had to "physically shake him to get him to wake up." When Olson roused, he "grabbed for the ignition keys." Kaas then removed the keys from the ignition.
Once out of the car, Olson was unsteady on his feet and appeared dazed and confused. Olson had to lean on the car for balance, and Officer Jensen had to hold on to one of his arms because Olson's balance was "very much off." Jensen could smell alcohol on Olson's breath. Jensen later attempted to conduct field sobriety tests, but Olson would not cooperate. Olson was arrested for driving while under the influence. A third police officer, Gary Martin, transported Olson to the Fifth Avenue police substation for a breath test on the Datamaster.
After arriving at the substation, Martin started the Datamaster, and then read Olson "all the required forms, including implied consent." Olson refused to provide a sample of his breath for testing.
The implied consent form that Martin read Olson contained information that was out of date. The notice Martin used informed Olson that refusal to submit to a chemical test was a felony if he had twice been convicted of driving while under the influence or refusal within the previous five years. But the law when Olson was arrested provided that a person was guilty of a class C felony if the person had "previously been convicted two or more times [under subsection (a)] since January 1, 1996, and within the 10 years preceding the date of the present offense." Olson's most recent qualifying convictions were from May 1997 and September 2000. The May 1997 conviction was approximately three weeks outside of the five-year window.
Former AS 28.35.030(n) (2002) (emphasis added).
Superior Court Judge Michael L. Wolverton denied Olson's motion to dismiss the driving while under the influence charge. Judge Wolverton found that the police had conducted a proper welfare check:
[T]his is . . . a welfare check that is incumbent upon officers in [these] circumstances to conduct. . . . [If an officer is informed of or comes upon] a vehicle where there's somebody slumped over the wheel, it would be unconscionable for them simply not to do anything and just say "well, I guess it's okay." The . . . car is in the middle of the road [and] the person could be . . . in insulin shock, could have [had] a heart attack, the person could have been shot and somebody left [him] in the vehicle, stabbed and somebody left [him] in the vehicle, all manner of other physical problems. And the officer needs to go up and for the sake of the individual behind the wheel, . . . do something[.] So . . . I'm going to deny the motion.
Although Judge Wolverton did not discuss Olson's separate motion to dismiss the refusal and driving with a revoked or suspended license charges, he issued a written order denying that motion without comment. He also issued a written order, again without a specific comment, denying Olson's motion to suppress the evidence of his refusal.
Later, Olson entered no contest pleas, attempting to preserve the merit issues he had raised with his various motions. Judge Wolverton accepted Olson's pleas, and he was convicted of two class C felonies and one class A misdemeanor.
Olson was sentenced on February 2, 2004, approximately five months before the Blakely decision was issued. With two prior felony convictions, Olson was a third-felony offender for purposes of presumptive sentencing. He was subject to a 3-year presumptive term for each of his current felony convictions. In addition, based on his four prior driving while under the influence convictions, Olson was subject to 360-day mandatory minimum terms for the driving while under the influence and refusal convictions. Finally, Olson was subject to a 30-day mandatory minimum sentence for the driving while license suspended or revoked conviction.
See former AS 12.55.125(e)(2) (2004).
See AS 28.35.030(n)(1)(C), AS 28.35.032(p)(1)(C).
See AS 28.15.291(b)(1)(D).
The State filed notice of four aggravating factors: AS 12.55.155(c)(6), Olson's conduct created a risk of imminent physical injury to three or more persons; (c)(10), Olson's conduct was the most serious conduct included in the definition of the offense; (c)(20), Olson was on parole or probation for a previous felony conviction when he committed the present offenses; and (c)(21), Olson had a criminal history of repeated conduct similar in nature to the present offenses. Olson filed notice of two mitigators under AS 12.55.155: (d)(9), his conduct constituting the offense was among the least serious conduct included in the definition of the offense; and (d)(13), any harm he had caused was consistently minor and inconsistent with the imposition of a substantial period of imprisonment.
Judge Wolverton found that the State had proven three of the aggravators — (c)(6), (c)(20), and (c)(21). He rejected aggravator (c)(10) and both of Olson's mitigators.
Judge Wolverton then imposed 5 years with 2 years suspended for the driving while under the influence conviction, and 5 years with 2 years suspended for the refusal conviction. Olson was required to serve the 360-day mandatory minimums for these convictions consecutively, and to serve the remaining unsuspended time concurrently. The suspended time was imposed consecutively. Judge Wolverton also imposed 360 days with 330 days suspended for the license conviction. Olson was required to serve this sentence consecutively to the other two. Olson's composite sentence was thus 3 years and 30 days to serve, with 4 years and 330 days suspended.
Discussion The police contact with Olson was lawful
In his pre-trial motion, Olson claimed that the police had conducted an unlawful investigatory stop. He argued that the stop was unlawful because the police had no reasonable suspicion that imminent public danger existed or that serious harm to persons or property had recently occurred. After an evidentiary hearing, Judge Wolverton ruled that the police contact with Olson was justified under the "community caretaker" doctrine.
We review the decision to deny Olson's motion in the light most favorable to upholding the trial court's ruling. We uphold the trial court's factual findings unless they are clearly erroneous. We independently determine whether the trial court's factual findings support its legal conclusion.
See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
Id.
Id.
The evidence showed that Olson was slumped over, asleep or unconscious, behind the steering wheel of a vehicle sitting in the middle of the road with its transmission in "drive" and the engine running. Olson "was unresponsive" when the police tried to rouse him. Although Olson argues that the evidence showed that the police were not concerned about him, Officer Jensen testified that "[i]nitially, my first concern was his safety and his health." These facts support Judge Wolverton's conclusion that the police had a lawful reason to contact Olson in carrying out their community-caretaker role. Olson's motion to dismiss the refusal charge
See Howell v. State, 115 P.3d 587, 589-90 (Alaska App. 2005) (contact justified when police found occupant of car parked at business early in the morning hunched over steering wheel with coat pulled over his head). See also Ozhuwan v. State, 786 P.2d 918, 922 (Alaska App. 1990) (recognizing that police officers' community caretaker responsibilities can justify a fourth amendment stop); Rogers-Dwight v. State, 899 P.2d 1389, 1391-92 (Alaska App. 1995) (accord); Crauthers v. State, 727 P.2d 9, 10-11 (Alaska App. 1986) (accord).
As already explained, the police read Olson an out-of-date "implied consent warning" form. Relying on that form, the police told Olson that if he had been twice convicted of driving while under the influence or refusal within the past five years, then "the penalty for refusing is a class C felony. Otherwise, the penalty is a class A misdemeanor[.]" If that form had been accurate, Olson would have been guilty of a misdemeanor for refusal to take the breath test. But based on the law actually in effect when Olson was asked to submit to a breath test, his refusal was a felony.
Former AS 28.35.030(n) (2002).
Olson argues that this error required dismissal of the refusal charge. He argues that his refusal was not "knowing and intelligent" because, based on the warning the police gave him, he believed he was committing a misdemeanor, not a felony.
But the validity of Olson's conviction does not hinge on his awareness of the precise penalty for his refusal. In Alaska, the elements of the crime of breath test refusal require that the State prove that the defendant was under arrest for driving while under the influence, that the defendant was aware that he was legally obligated to take the breath test, and that the defendant refused to take the test. Although AS 28.35.032(a) requires certain warnings, one of which is a warning that refusal is "a crime," that warning is not an element of the offense. The pertinent issue is whether the defendant refused the breath test knowing that submitting to the test was required by law.
Yang v. State, 107 P.3d 302, 308-12 (Alaska App. 2005).
Id. at 309.
We have explained this principle in a number of cases. In Hoople v. State, we held that in driving while under the influence and refusal cases, the State was not required to prove that the defendant committed the offense with an awareness of the legal effect of his prior drunk driving or refusal convictions, even if those convictions enhanced the offense from a misdemeanor to a felony.
985 P.2d 1004 (Alaska App. 1999).
Id. at 1006.
And in Ortberg v. State, we held that the criminal mischief statute did not require the State to prove that a defendant knew or had reason to believe that the damage caused would ultimate exceed $500, even though that value of damage made the offense a felony.
751 P.2d 1368 (Alaska App. 1988).
Id. at 1374 1369.
Likewise in Knutsen v. State, we said that "[s]everal times in the past, we have held that no culpable mental state need be proved regarding a circumstance or result if that circumstance or result does not alter the criminality of the defendant's conduct but instead serves only to trigger a greater punishment for the offense."
101 P.2d 1065 (Alaska App. 2004).
Id. at 1069. See also Bell v. State, 668 P.2d 829, 833-34, 835 (Alaska App. 1983) (rejecting mistake of fact defense in prosecution for first-degree promoting prostitution because it was defendant's "intentional procurement of a person . . . for prostitution that renders him liable for first-degree promoting, regardless of his actual awareness of that person's age").
Olson points out that the implied consent statute, AS 28.30.032, requires the police to warn an arrestee asked to submit to a breath test that refusal to take the test is a crime. From this, he argues that the police must inform the arrestee whether refusal will be a misdemeanor or a felony. But nothing in the implied consent statute or in our case law requires the police to inform an arrestee of the actual penalty that could be imposed for refusal. Moreover, as we have just explained, Olson's mens rea for the offense of refusal did not hinge on his knowing that he was committing a felony. As we noted in Yang v. State, evidence that the police informed the defendant that refusal was a crime is relevant to determining whether the defendant understood the purpose of the breath test and the legal obligation to take the test. But the warning is not an element of the crime that the State is required to prove.
107 P.2d 302.
Id. at 311.
Id. at 309.
Furthermore, Olson presented no evidence, by affidavit or testimony, that he in fact misapprehended the potential class of offense he faced when he refused to submit to the breath test. That is, Olson never offered to prove that he indeed relied to his detriment on the erroneous information about a five-year "look-back" for prior convictions when he made his decision to refuse the breath test. Olson's attorney argued that it was possible that Olson was misled by the out-of-date warning, but Olson never actually asserted that he was misled. That is, he did not assert that he specifically remembered that his May 1997 conviction was entered three weeks before the supposed five-year time period, and that he therefore believed he faced only misdemeanor penalties if he refused the test.
In any event, Olson concedes that he refused the breath test after he was warned that he had a legal duty to submit to the test. Even if Olson believed at the time that he was only committing a misdemeanor, that belief does not bar his prosecution for felony refusal, or show that he lacked the requisite culpable mental state for the offense.
For these same reasons, we reject Olson's claim that evidence of his breath test refusal should have been suppressed.
The State had sufficient evidence to charge Olson with driving while license revoked or suspended
Olson claims that the State could not charge him with driving while license suspended because neither the police nor any witnesses actually saw him driving. But as the State points out, there was enough evidence to support the charge: witnesses saw Olson, the sole occupant, behind the wheel of a vehicle that was in gear, had its engine running, and was in the middle of the road. This evidence provided circumstantial proof that Olson drove the vehicle to the spot where he was contacted by the police.
Olson's sentence did not violate Blakely
Olson was sentenced as a third felony offender. As a third felony offender Olson's presumptive term for each class C felony conviction was 3 years. As explained earlier, Judge Wolverton found three of four alleged aggravators. Based on two of these aggravators, he increased the suspended portion of Olson's sentence. (Judge Wolverton did not place any weight on aggravator (c)(6), and did not lengthen Olson's sentence based on that aggravator.)
See former AS 12.55.125(e)(2)(2004).
Olson claims that his sentence violated Blakely v. Washington, because Judge Wolverton, and not a jury, found the aggravating factors. In addition, Judge Wolverton found the aggravators by the "clear and convincing" standard, and not beyond a reasonable doubt. But, as the State points out, the basis of aggravating factor (c)(21) was Olson's prior convictions. Blakely is not violated when a sentencing judge finds and then aggravates a presumptive sentence based on prior convictions. Here, two of Olson's prior convictions were used to increase the presumptive term to 3 years — a felony driving while under the influence conviction and a felony escape conviction. Olson also had four prior driving while under the influence convictions, but only one of those, the felony, was used to classify him as a third felony offender. Olson did not contest that he had the three other driving while under the influence convictions. Therefore, under Blakely, Judge Wolverton could lawfully find aggravator (c)(21) — that Olson had a criminal history of repeated conduct similar in nature to the present offenses.
Grohs v. State, 118 P.3d 1080, 1083 (Alaska App. 2005) ("when a defendant's maximum sentence hinges on the defendant's prior convictions, at least when the defendant does not dispute the fact of those prior convictions, a sentencing judge can rely on the prior convictions without submitting them to a jury").
See id.
Olson also challenges the other two aggravators that Judge Wolverton found. Judge Wolverton expressly placed no weight on aggravator (c)(6) (that Olson's conduct endangered three or more people.) Thus, any error regarding this aggravating factor was harmless.
As for aggravator (c)(20) — that Olson was on parole or probation for a previous felony conviction when he committed the present offenses — Olson acknowledged before sentencing that he was on probation or parole for a felony escape conviction when he committed the current offenses. He argued that the court should not consider the fact that he was on probation or parole because the sentence in his escape case was illegal and, after he committed his current offenses, was changed to a flat-time sentence without probation or parole. He also asserted that "once the impact" of this court's decision reversing one of his convictions in Olson v. State was factored in, and his time remaining to serve on the escape conviction adjusted to reflect that circumstance, he should not have been on probation or parole in June 2002.
77 P.3d 15 (Alaska App. 2003).
Judge Wolverton rejected this argument on policy grounds:
The Court: Regardless of the argument [Olson has] made [that] retrospectively should he have been convicted of [the prior] charge, the spirit of the [legislature's] concern [embodied] in . . . aggravator [(c)(20)] is quite clear: . . . if you are under supervision and [you are] nevertheless [committing new] criminal offenses, we have concern, as a society, about that.
In other words, if a defendant is still committing new offenses while the defendant is under probation or parole supervision, this conduct suggests that the defendant poses a risk to society and is less amenable to rehabilitative measures. This remains true regardless of whether the defendant's sentence is later changed to eliminate probation or parole supervision, or the defendant's conviction is later set aside.
We followed a similar logic in Clark v. State, where we held that the validity of a defendant's conviction for being a felon in possession of a concealable firearm is not affected by the fact that the defendant's underlying felony conviction is later reversed on appeal.
739 P.2d 777 (Alaska App. 1987).
Id. at 781.
Clark was convicted of being a felon in possession of a concealable firearm. After the date of his offense ( i.e., the date of the firearm possession), Clark's prior felony was reversed on appeal. Clark argued that, because his prior felony conviction was ultimately reversed, he was not guilty of being a felon in possession because he was not a "felon" on the day that he possessed the firearm. We rejected this argument on policy grounds:
It appears to us that sound public policy supports what we perceive to be the intent of the legislature. . . . We see no reason why the legislature would want to encourage a person who has formerly been convicted of a felony to gamble by possessing a concealable firearm, hoping that if he or she is arrested for being a felon in possession that he or she can defend against that offense by having the former conviction set aside. We accordingly conclude the [superior court] did not err in finding that Clark violated AS 11.61.200(a)(1) by possessing a concealable firearm while his former conviction was on appeal, and that this court's later reversal of Clark's former conviction was not a defense to the felon in possession charge.
Id.
We conclude that the same reasoning applies to Olson's case. As Judge Wolverton recognized, the policy behind aggravator (c)(20) is that people who commit new crimes while they are under probation or parole supervision are potentially more dangerous, or less amenable to rehabilitation, than the typical offender. The force of this reasoning is not diminished by the fact that the defendant's conviction or sentence is later struck down on appeal.
Olson conceded that he was actually on felony probation or parole when he committed his current offenses. Thus, any potential error in Judge Wolverton's finding of aggravator (c)(20) was harmless beyond a reasonable doubt. Conclusion
See Snelling v. State, 123 P.3d 1096, 1098-99 (Alaska App. 2005).
Olson's convictions and sentence are AFFIRMED.