Opinion
Court of Appeals No. A-12196 No. 6286
02-24-2016
BILLY JOE BOSTWICK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jeffrey Bradley, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kerry A. Corliss, Assistant District Attorney, Palmer, and Craig W. Richards, 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. Trial Court No. 3PA-14-954 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Jeffrey Bradley, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kerry A. Corliss, Assistant District Attorney, Palmer, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
The superior court sentenced Billy Joe Bostwick to a composite sentence of 10 years and 60 days with 4 years suspended — 6 years and 60 days to serve — for Bostwick's convictions of fourth-degree misconduct involving a controlled substance, felony driving under the influence, and driving with a revoked license. Bostwick appeals this sentence as excessive, contending that: (1) the superior court did not adequately support its decision to include 4 years of suspended time in its sentence; and (2) the superior court should have imposed less time to serve because of Bostwick's potential for rehabilitation. We reject these claims and affirm the sentence.
On April 13, 2014, a state trooper attempted to stop Bostwick for a traffic infraction. Instead of stopping, Bostwick accelerated his Ford Expedition and led the trooper on a high-speed chase down the Parks Highway. The troopers had to deploy spike strips to stop Bostwick. Bostwick drove over the spike strips and through a red light before finally coming to a stop.
A search of Bostwick's backpack in the Expedition revealed multiple baggies of heroin, marijuana, and tranquilizer and painkiller pills. A DataMaster measured Bostwick's blood-alcohol level at .101 percent.
For his conduct, Bostwick pled guilty to fourth-degree controlled substance misconduct, felony driving under the influence, and driving while his license was revoked.
AS 11.71.040(a)(3)(A)(i); AS 28.35.030(n); AS 28.15.191(a)(1).
Bostwick had a prior conviction for felony driving under the influence in 2006. He was originally sentenced to 2 years with 20 months suspended for this offense, but he ultimately served the entire 2 years due to probation violations.
Bostwick also had prior felony convictions from a 2007 case for third-degree controlled substance misconduct and two counts of fourth-degree controlled substance misconduct. In the same case, Bostwick was also convicted of the misdemeanor offenses of sixth-degree controlled substance misconduct and driving with a revoked license. The superior court sentenced Bostwick to 4 years and 20 days in prison for all these offenses.
See Bostwick v. State, 2010 WL 668947, at *1-2 (Alaska App. Feb. 24, 2010) (unpublished).
Bostwick was released from prison on mandatory parole in May 2011. In November 2011, Bostwick successfully completed a substance abuse treatment program. But in January 2012, the Parole Board revoked Bostwick's parole due to his consumption and possession of alcohol, and he served the remainder of the sentence in prison.
In addition to the prior convictions described above, the 34-year-old Bostwick had seven other misdemeanor convictions.
For the purpose of presumptive sentencing in this case, Bostwick was a third felony offender, and therefore he was subject to a presumptive sentencing range of 3 to 5 years for each of his class C felony convictions of felony driving under the influence and fourth-degree controlled substance misconduct. At Bostwick's sentencing, Superior Court Judge Eric Smith found — based on Bostwick's criminal history, his performance on probation, and his current offenses — that a composite sentence in excess of the maximum 5-year sentence for a class C felony was necessary "to protect society." The superior court imposed individual sentences of 5 years with 2 years suspended for Bostwick's felony driving under the influence and controlled substance convictions, and 60 days for Bostwick's driving-with-license-revoked conviction. The court imposed the sentences consecutively, resulting in a composite sentence of 10 years and 60 days with 4 years suspended.
AS 28.35.030(n); AS 11.71.040(d); AS 12.55.125(e)(3).
See Phelps v. State, 236 P.3d 381, 382, 392-93 (Alaska App. 2010) (discussing the finding a sentencing judge is required to make when imposing a composite sentence that will exceed the maximum sentence for the defendant's most serious offense); AS 12.55.125(e) (maximum sentence for a class C felony is five years).
Bostwick first asserts that the superior court did not explain the sentencing criteria that supported its decision to include a term of suspended time in addition to the time to serve in his composite sentence. We disagree. The court stated that its inclusion of suspended time in the sentence—rather than the flat-time sentence recommended by the prosecutor—was based on Bostwick's expressed interest in a sentence that included suspended time and probation. The judge found that "a lot of suspended time will be important for deterrence," and that, because of Bostwick's criminal history, if Bostwick were to reoffend, then a court could legitimately impose the suspended time to isolate him.
See State v. Chaney, 477 P.2d 441, 444, 447 (Alaska 1970) (a sentencing court should consider the factors of rehabilitation, isolation, and the deterrence of the offender, as well as the deterrence of others and community condemnation); see also AS 12.55.005 (adding other factors as sentencing considerations).
As we explained in Williams v. State, a sentencing judge may properly include "a substantial period of suspended incarceration ... as a deterrent in the event [the defendant's] efforts toward rehabilitation prove[] unsuccessful." Williams v. State, 859 P.2d 720, 723 (Alaska App. 1993), quoted in Heavyrunner v. State, 172 P.3d 819, 821 (Alaska App. 2007). Given the record in Bostwick's case, we find no error in the superior court's ruling.
Bostwick further argues that the superior court should have accorded more weight to his rehabilitation potential and imposed less time to serve. We hold that, based on the record of Bostwick's current offenses and his history, the court's decision to impose 6 years and 60 days to serve (with another 4 years suspended) is not clearly mistaken.
See State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (clearly mistaken standard of review applies to excessive-sentence claims). --------
The judgment of the superior court is AFFIRMED.