Opinion
Court of Appeals No. A-9747.
April 16, 2008.
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. Alison B. Collins, 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Christopher R. Steen, whose license was revoked from previous DUI convictions, and who was driving with a blood alcohol level of over .30 percent, pulled out from a parking lot onto the Parks Highway in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 also 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 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. All told, Steen 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for DUI, one prior conviction for refusing a breath test, and three prior convictions for driving while his license was revoked.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.
With regard to Steen's 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.
In our previous decision in this appeal, we pointed out that Steen's sentence for second-degree assault appeared to be unlawful because, under former AS 12.55.125(k)(2), Steen's sentence for this offense could not include more than 4 years to serve unless the State proved one or more aggravating factors, and because the one aggravator that the State proved (Steen's history of DUI offenses) did not apply to the second-degree assault conviction. We therefore remanded Steen's case to the superior court for re-sentencing. Steen v. State, Alaska App. Memorandum Opinion No. 5240 (July 18, 2007), 2007 WL 2069549.
On remand, Superior Court Judge Eric Smith reduced Steen's sentence on the second-degree assault conviction to 10 years with 6 years suspended — that is, 4 years to serve — so that it conformed to the sentencing restriction in former AS 12.55.125(k)(2). The remaining question was whether Steen's sentence for felony DUI should be increased. See Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
The prosecutor asked Judge Smith to re-sentence Steen to the maximum term of imprisonment for felony DUI — 5 years. But after weighing Steen's history of DUI offenses against Steen's expressed remorse and willingness to seek treatment, Judge Smith concluded that he could not find that Steen was a "worst offender" for purposes of the DUI conviction — although Judge Smith declared that Steen was "right on the edge" of this classification. Judge Smith then increased Steen's felony DUI sentence by 1 year to serve: he sentenced Steen to 5 years with 1 suspended.
Thus, on remand, Steen's sentence for felony DUI was increased, his sentence for second-degree assault was reduced, and his overall composite sentence was likewise reduced: from 15 years with 6 suspended (9 years to serve) to 15 years with 7 suspended (8 years to serve).
The final issue to be resolved in this appeal is Steen's claim that this modified sentence is excessive. When a defendant who has been sentenced for two or more offenses pursues a sentence appeal, this Court assesses whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history.
See, e.g., Custer v. State, 88 P.3d 545, 549 (Alaska App. 2004); Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Steen has an extensive history of driving while under the influence, and of driving even though his license was revoked. Moreover, Steen's blood alcohol level in this case was almost four times the legal limit. In addition, Steen inflicted serious, long-term injuries on the victim. Given these factors, we can not say that Judge Smith's sentencing decision is 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).
Accordingly, the judgement of the superior court is AFFIRMED.