Opinion
Court of Appeals No. A-8904.
March 15, 2006.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge. Trial Court No. 1KE-00-673 CR.
Eric Hedland, Assistant Public Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Stephen R. West, District Attorney, Ketchikan, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In an earlier opinion, we affirmed Byron L. Peters's convictions for felony driving while intoxicated and driving while license revoked. Peters's case is before us again because Peters challenges the sentence the superior court imposed after it revoked Peters's probation. Peters claims that his sentence is excessive. Because we conclude that his sentence is not clearly mistaken, we affirm the superior court.
Peters v. State, Alaska App. Memorandum Opinion and Judgment No. 4766 (October 1, 2003), 2003 WL 22249922.
AS 28.35.030(n) and AS 28.15.291(a)(1), respectively.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
On July 21, 2000, Craig Police Chief James See arrested Peters for driving under the influence and driving while license revoked.
Because Peters had at least two prior Washington convictions for driving while intoxicated since 1996, the grand jury indicted Peters on one count of felony driving under the influence. Ultimately, a jury found Peters guilty of felony driving under the influence and driving while license revoked.
Superior Court Judge Trevor N. Stephens found that Peters faced a presumptive 3-year term because Peters had two qualifying prior felony convictions. The State asserted that statutory aggravating factor AS 12.55.155(c)(21) applied because Peters had a history of repeated instances of criminal conduct similar in nature to the offense for which Peters was being sentenced. Judge Stephens found that this factor applied. In September 2001, Judge Stephens imposed a 4-year term, with 1 year suspended, for felony driving under the influence and 180 days, with 160 days suspended, for driving on a revoked license. Peters appealed his convictions but did not appeal his sentence.
See former AS 12.55.125(e)(2).
Peters had problems while on parole release and while on probation. Peters's probation officer filed a petition to revoke probation based on two incidents where Peters consumed alcohol in violation of his probation conditions. The probation officer also testified that she discovered that Peters had violated his release conditions pending the hearing on the petition by consuming alcohol and possessing marijuana. Judge Stephens revoked Peters's probation and imposed three months of suspended imprisonment.
The probation officer filed another petition to revoke probation based on allegations that Peters consumed alcohol and possessed marijuana a little more than a week after Peters was in court on the previous probation revocation. Judge Stephens again revoked Peters's probation and then imposed the balance of Peters's suspended imprisonment.
Peters has an extensive criminal record that started in the early 1980's and included several convictions for driving under the influence. Peters was unsuccessful on parole release and had several violations of probation. At disposition on the second petition to revoke probation, Judge Stephens concluded that rehabilitation was no longer a primary goal of sentencing. He observed that individual deterrence had not worked. Judge Stephens concluded that isolation was a primary goal in sentencing Peters and imposed the remaining suspended imprisonment.
Peters argues that his sentence is excessive if one views only Peters's conduct underlying the offenses without considering his record. He claims that he should not have received more than the presumptive term because his offense was "garden variety." But Peters's extensive criminal history throughout his adulthood establishes good reason for imposing a significant term in this case.
We are not able to say that Peters's composite sentence of 4 and 1/2 years to serve is clearly mistaken when considering that sentence in the context of Peters's record, the original offense, and the repeated violations of his probation conditions.
Conclusion
Peters's sentence is AFFIRMED.