Opinion
Court of Appeals No. A-9696.
January 30, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-05-11365 CR.
Marcia E. Holland, Contract Attorney, Public Defender Agency, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Steven T. Yates was convicted of felony driving while under the influence, felony refusal to submit to a chemical test, and driving while license suspended. On appeal, he claims that Superior Court Judge John Suddock erred when he allowed the State to amend the indictment after the trial had started. Yates also claims that his composite sentence is excessive. For the reasons set out here, we reject Yates's arguments and confirm the judgment of the superior court.
AS 28.35.030(n), AS 28.35.032(p), and AS 28.15.291(a)(1), respectively.
Facts and proceedings
On November 28, 2005, a number of motorists called the Anchorage Police Department to report that another motorist who was heading outbound on the Glenn Highway towards Eagle River was driving erratically and on flat tires. At about the time these calls were made, the vehicle left the roadway near Fort Richardson and became mired in the snow in the highway median. The vehicle's two occupants left the vehicle and crossed the median to the inbound traffic lanes. There, another motorist picked them up and gave them a ride to Fort Richardson's main gate, where the two were dropped off.
Officers responding to the calls found Yates and his companion near Fort Richardson's main gate. One of the motorists who had reported the erratic driving identified Yates as the driver.
Soon after the police contacted him, Yates was arrested for driving while under the influence. He was transported to a police substation for a breath test. When requested to do so, he refused to submit a breath sample for testing and was arrested for refusal.
Based on these events, and based on his criminal history, Yates was indicted on one count of felony driving while under the influence and one count of felony refusal to submit to a chemical test. He was also charged with driving while license suspended, a misdemeanor offense.
A jury found Yates guilty of all three counts. This appeal follows.Amending the indictment
On the second day of trial, when the parties discussed jury instructions, Yates argued that the indictment only charged him with driving while above the legal limit — that is, when his blood alcohol content was 0.08 percent or greater. He announced that he would be asking for a judgment of acquittal on this charge because the State had no evidence of his blood alcohol level. In response, the State sought permission to amend this count of the indictment. The State argued that amendment was proper because the defect in the indictment was one of form, that no new or different offense would be charged, and that Yates would not be prejudiced. Judge Suddock agreed, and permitted the State to amend the indictment to drop the blood alcohol theory and charge Yates only with driving "while under the influence."
As originally written, the indictment alleged that Yates
drove or operated a motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance when there was 0.08% or more by weight of alcohol in his blood or there was 0.08 grams or more of alcohol per 210 liters of his breath[.]
Recently, in Lau v. State, another case in which the defendant was charged with both DUI and refusal, we addressed the State's use of this same language. We pointed out in Lau that this wording represents an amalgam of the two discrete ways that a person can violate Alaska's DUI statute, AS 28.35.030(a). Subsection (1) of this statute, the impairment theory, forbids a person from operating a motor vehicle "while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination." Subsection (2) of the statute, the blood alcohol theory, forbids a person from operating a motor vehicle "if . . . there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person's breath."
___ P.3d ___, Alaska App. Opinion No. 2141 (Jan. 18, 2008).
Id. at 3-4.
Yates claims that he was convicted of an offense for which he was not indicted because the superior court allowed the State to amend the indictment to charge him only under an impairment theory. But Alaska Criminal Rule 7(e) allows the superior court to amend an indictment at any time before the jury reaches its verdict, so long as the amended indictment does not charge an additional or different offense and the defendant is not prejudiced.
Here, Judge Suddock found that because Yates was charged with both DUI and refusal, the grand jury could not have reviewed any evidence on the percentage of Yates's breath or blood alcohol content. He noted that it must have been "abundantly clear" to the grand jury that there was no evidence of Yates's blood alcohol level because the grand jury was simultaneously presented with a charge that Yates had refused to submit to a chemical test. Judge Suddock concluded that since there was no claim that the grand jury was improperly instructed on the element of driving while under the influence, the grand jury must have indicted Yates under an impairment theory.
Judge Suddock also found that Yates had not been surprised or disadvantaged by the error in the indictment, so there was no prejudice. He pointed out that Yates had not claimed that he did not know what offense he was facing, and that Yates had conducted his defense at trial as if he had been indicted under an impairment theory.
On appeal, Yates does not argue that the indictment's language, in conjunction with the grand jury record, did not provide him notice of the offense he was actually charged with. Indeed, Yates concedes that the grand jury heard no evidence of a breath or blood test result. He also concedes that the grand jury heard essentially the same evidence that was presented at his trial. In other words, he acknowledges that the indictment was amended to conform to the evidence presented to the grand jury.
Yates nevertheless argues that it was unfair to allow the State to amend the indictment after his trial began. He claims that he relied on the indictment in deciding to go to trial on both the DUI and refusal charges rather than enter a "standard plea agreement" which "typically results" in the dismissal of one of these offenses. But this argument is not persuasive. First, it is speculative. There is nothing in the record showing that Yates would have, or could have, entered into a favorable plea agreement had the State amended the indictment prior to trial. Second, based on the record in this case, it would have been unreasonable for Yates to believe that the State, once it became aware of the problem, would not seek to amend the indictment prior to the jury's verdict.
Yates also argues that the amendment "prejudiced the defense that [he] elected to present at his trial." He asserts he was prejudiced because he committed himself to defending against the "blood alcohol level" theory during his opening statement to the jury. But Judge Suddock found that Yates had conducted his defense aware that he was charged under the "impairment" theory. Yates did not contest this finding at trial, and the record supports it. We have examined Yates's opening statement and nothing in it communicated to the jury that his defense depended or hinged solely on the fact that the State would be unable to prove that his blood alcohol content was 0.08 or higher. Nor did Yates say anything that undermined his defense. Rather, he told the jurors that the State would be unable to prove that he had been driving while intoxicated. His attorney explained that the State had the burden of proving each element beyond a reasonable doubt, and then she added that "you're not going to hear any evidence . . . of when Mr. Yates consumed alcohol, where, [or] how much — because the State doesn't know. The evidence is not going to show — they don't have it."
Based on the record before us, we uphold Judge Suddock's decision to allow the State to amend the driving while under the influence count of the indictment.
Yates's composite sentence is not clearly mistaken
Yates was convicted of two felonies, driving while under the influence and refusal to submit to a chemical test. He was also convicted of one misdemeanor, driving while license suspended. Yates was subject to presumptive sentences of 2 to 4 years for each of the felony convictions. In addition, there was a mandatory minimum sentence of 240 days on the refusal conviction, which had to be served consecutive to any other sentence Yates received.
AS 12.55.125(e)(2).
AS 12.35.032(p)(1).
Despite Yates's extensive criminal history, Judge Suddock sentenced Yates to the minimum lawful time to serve for the two felony convictions. That is, he imposed a composite term of 2 years and 240 days to serve.
Judge Suddock then sentenced Yates for the misdemeanor conviction. Based on Yates's history of convictions for driving while license suspended, Judge Suddock imposed a term of 180 days with 150 days suspended, consecutive to the other sentences. Thus, Yates had to serve 30 days consecutive to the other two sentences. His composite term to serve was 2 years and 270 days.
Yates claims that this composite term is excessive, and he asserts that the misdemeanor term should have been imposed concurrent to the felony sentences. He argues that under the "principle of parsimony," imposing the misdemeanor term concurrent with the felonies would have adequately achieved Judge Suddock's sentencing goals.
But the record shows that Judge Suddock had a particular concern about Yates's license offense.
Judge Suddock pointed out that Yates had four prior convictions for driving while license suspended and had received increasingly severe sentences. Judge Suddock observed that Yates had been sentenced to 70 days to serve for his most recent driver's license offense. He then told Yates that "[i]t doesn't seem to have come clearly through to you that you are out of the driving business and I just feel a need to impress upon you with this sentence [that] you've got to stay out from behind the wheel of a car."
Judge Suddock found that Yates's prior punishment had failed to change his behavior. As a result, Judge Suddock found it necessary to impose the sentence for the current driving while license suspended conviction consecutive to the other two sentences. Yates therefore has a composite sentence to serve that is only 30 days longer than the mandatory minimum term he had to serve for his two felony convictions. In light of the record, we do not find that Yates's composite sentence was clearly mistaken. Conclusion
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).
We AFFIRM the superior court's judgment.