Opinion
Court of Appeals No. A-11480 Trial Court No. 3AN-10-7571 CR No. 6024
02-26-2014
RICK EUGENE SMITH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. Michael Perry, Assistant District Attorney, Palmer, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Vanessa H. White, Judge.
Appearances: Ariel J. Toft, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. W. Michael Perry, Assistant District Attorney, Palmer, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
In 2010, Rick Eugene Smith committed his third felony DUI, and his ninth DUI overall. He received a sentence of 5 years' imprisonment with 2 years suspended (3 years to serve).
After serving this sentence, Smith was released on probation. Approximately one month after his release, Smith was charged with violating his probation by (1) possessing alcoholic beverages and (2) drinking. A federal fish and wildlife officer found Smith fishing illegally on the Kenai Peninsula. Smith was in possession of alcohol, and when the officer administered a portable breath test to Smith, the result was .21 percent.
At the disposition hearing in the superior court, Smith acknowledged that he had violated his probation in these ways. He told the superior court that he wished to reject further probation and, instead, receive a flat sentence of imprisonment. During his allocution, Smith suggested that he was capable of dealing with his drinking problem, and he asserted, "I hardly ever really drink any more." Smith's attorney suggested that an appropriate sentence would be 4 years to serve — i.e., one additional year to serve.
The superior court rejected this recommendation and imposed the whole remaining 2 years of Smith's sentence.
In this appeal, Smith argues that the superior court should have imposed only one year of those remaining two. However, the superior court fully explained why it decided to impose the entirety of Smith's remaining jail time:
The Court: [T]his is [Mr. Smith's] third felony DUI. [He] was out on probation for about a month before he [committed] these violations. ... [H]e blew a .210 [on the portable breath test], just a month [after his release from prison]. So [when you] say that you hardly ever drink anymore, [that] is hard for me to accept, Mr. Smith —
because you were drinking within a month of your release on probation.
Mr. Smith's prior DUIs include a hit-and-run, and so he presents a palpable risk to the community if he chooses to drink and drive. It's true [that] on this [petition to revoke], there's no evidence that he had been driving. But the bottom line is that Mr. Smith has a very serious alcohol problem, [and] that he has made the decision nine times to drink and get behind the wheel of a car and place everyone in his path at risk of physical harm.
For him to say now, "I don't drink much anymore", when he drank to a .210 within a month of his release, just tells me that [Mr. Smith's] denial system is both elaborate and fully intact, and he continues to present a risk to public safety.
. . .
And in this case, the primary Chaney criteri[on] is isolation — not to punish Mr. Smith, but to protect the community. And rehabilitation is really no longer a viable alternative for Mr. Smith, ... given his history [of] all of the felony DUI's, given his history on this [petition to revoke his probation]. And so I impose the remaining two years of his suspended time.
The superior court's assessment is fully supported by the record, and we therefore conclude that Smith's sentence of 5 years to serve is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
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The sentencing decision of the superior court is AFFIRMED.