Opinion
Court of Appeals No. A-9747.
July 18, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-2699 Cr.
M. Elizabeth Varela, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Suzanne C. Powell, Assistant District Attorney, and Roman J. Kalytiak, District Attorney, Palmer, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Christopher R. Steen, whose license was revoked from previous DUI convictions, and who was driving with a blood alcohol level of over .30 percent, pulled out from a parking lot onto the Parks Highway in Wasilla, into the path of a motorcycle. The motorcyclist was seriously injured: his right leg and knee were shattered, and his shoulder and several of his ribs were broken. Even after multiple surgeries, the motorcyclist's injuries were not healed by the time of Steen's sentencing nine months later.
When the police arrived at the scene of the accident and attempted to administer field sobriety tests to Steen, they were unable to complete the series of tests because Steen was so intoxicated that he could not stand upright.
Steen was charged with second-degree assault. And, because Steen had two prior convictions for driving under the influence within the preceding ten years, he was also charged with felony DUI. Steen eventually pleaded no contest to these charges.
AS 11.41.210(a)(2) (recklessly causing serious physical injury to another person).
AS 28.35.030(n).
Steen was fifty-four years old at the time he committed these offenses. He had eight prior convictions for DUI, one prior conviction for refusing a breath test, and three prior convictions for driving while his license was revoked.
In addition, Steen had prior felony convictions for selling cocaine and possessing cocaine with intent to sell. However, these convictions were too old to trigger presumptive sentencing, and thus Steen faced sentencing as a first felony offender.
Under Alaska's pre-March 2005 sentencing law, because Steen was a first felony offender, his sentencing for second-degree assault and felony DUI was governed by former AS 12.55.125(k)(2). Under this statute, unless the State proved one or more aggravating factors, Steen's sentences for these two felonies could not include more time to serve than the presumptive terms of imprisonment that would apply if Steen had been a second felony offender. (In the case of second-degree assault, this limit was 4 years to serve; in the case of felony DUI, this limit was 2 years to serve.)
Based on Steen's eight prior DUI convictions, Superior Court Judge Eric Smith found that one aggravator applied to Steen's conviction for felony DUI: AS 12.55.155(c)(21) — that Steen had a history of repeated instances of criminal behavior similar in nature to his present offense. (Steen conceded this aggravator.)
Based on this aggravator, Judge Smith sentenced Steen to 5 years' imprisonment with 2 years suspended ( i.e., 3 years to serve) for the felony DUI. And, on the second-degree assault conviction, Judge Smith sentenced Steen to 10 years' imprisonment with 4 years suspended ( i.e., 6 years to serve). Judge Smith imposed these sentences consecutively, for a composite 9 years to serve.
On appeal, Steen argues that this composite sentence is excessive. We conclude, however, that we need not reach that issue — because it appears that Steen's sentence for second-degree assault is illegal.
As explained above, Steen's sentencing was governed by former AS 12.55.125(k)(2). Under this statute, Steen's sentence for second-degree assault could not include more than 4 years to serve unless the State proved one or more aggravating factors.
Based on Steen's eight prior convictions for DUI, Judge Smith found that the State had proved aggravator (c)(21) (history of repeated similar offenses). But this aggravator appears to apply only to Steen's conviction for felony DUI, not his conviction for second-degree assault.
In the absence of an aggravator that is applicable to Steen's second-degree assault conviction, Judge Smith could sentence Steen to no more than 4 years to serve — i.e., no more than 10 years' imprisonment with 6 years suspended.
For this reason, we must remand Steen's case to the superior court for reconsideration of Steen's sentence. We refer the superior court and the parties to Walsh v. State, 134 P.3d 366, 372-73 (Alaska App. 2006), and Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
The superior court shall re-sentence Steen within 60 days, and the court shall promptly notify us of its decision. The parties shall then have 30 days to file supplemental memoranda addressing the new sentence.
When we have received the superior court's decision and the parties' memoranda, we will resume our consideration of this case.
This case is REMANDED to the superior court for renewed sentencing proceedings. We retain jurisdiction of this appeal.