Opinion
Court of Appeals No. A-8855, No. 5420.
January 7, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-02-6030 Cr.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, 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 Bolger, Judges.
MEMORANDUM OPINION
Garrett M. Bowley, who was intoxicated and speeding, drove his Ford pickup truck into an Anchorage intersection against a red light. The posted speed limit at this intersection was 40 miles per hour, and Bowley was traveling at almost double that speed.
As Bowley drove into the intersection, he collided with a Dodge Neon that was making a left turn in front of him across the intersection. (This car was obeying a green arrow that authorized the turn.) Bowley hit the Dodge broadside and pushed it completely across the intersection. The driver of the Dodge was seriously injured, and the passenger in the car (who bore the brunt of the impact) was killed. Bowley and his two passengers suffered only minor injuries.
As a result of the collision, Bowley's truck toppled over and landed on its side, with Bowley's leg pinned beneath the vehicle. Bystanders were able to lift the truck enough to allow Bowley to free his leg, and then Bowley walked away from the scene — leaving one of his shoes beneath the truck.
About two hours later, a police officer found Bowley in a nearby neighborhood. At that time, Bowley was barefoot; in other words, he had removed and discarded his other shoe. Bowley lied to the officer about what had happened: he declared that he had been carjacked, and that the people who robbed him of his vehicle also took his shoes. The police later found Bowley's missing shoe in a clump of trees in a residential yard a few blocks from the collision site.
For the conduct resulting in the collision, Bowley was convicted of manslaughter, first-degree assault, and driving under the influence. For his conduct afterwards (leaving the scene and hiding his shoe), Bowley was convicted of leaving the scene of an injury accident and tampering with evidence. For all of these crimes, Bowley received a total of 17 years and 3 days to serve, with an additional 26 years and 27 days suspended.
In our previous decision in this case, Bowley v. State, Alaska App. Memorandum Opinion No. 5242 (July 18, 2007), 2007 WL 2069539, we affirmed Bowley's convictions but we remanded the case to the superior court for reconsideration of certain sentencing issues. In particular, we asked the sentencing judge, Superior Court Judge Michael L. Wolverton, to explain his factual basis for finding two of the aggravating factors listed in AS 12.55.155(c): (c)(6) — that Bowley's conduct placed at least three other people at risk of imminent physical injury; and (c)(10) — that Bowley's conduct was among the most serious within the definition of the offense. See Bowley, Memorandum Opinion 5242 at pp. 11-14, 2007 WL 2069539 at *6-7.
Judge Wolverton has now provided a written explanation of why he found aggravators (c)(6) and (c)(10), and the parties have filed supplemental memoranda addressing the judge's findings. We therefore turn to the issue of whether those findings are factually and legally sustainable.
Aggravator (c)(6) — risk of imminent physical injury to three or more people
From the fact that there were two passengers in Bowley's truck and two occupants in the car that Bowley hit, it is obvious that Bowley's conduct endangered at least those four people. However, Alaska law does not allow the State to prove an aggravating factor by relying on conduct for which the defendant has been separately convicted and punished. Thus, on the issue of whether the State established aggravator (c)(6), neither the State nor the superior court is allowed to rely on the risk of injury that Bowley's conduct posed to the driver and the passenger of the other car ( i.e., the victims of the manslaughter and the first-degree assault).
See Juneby v. State, 641 P.2d 823, 842-43 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
Judge Wolverton found that Bowley's conduct jeopardized the people who came to Bowley's aid after the accident. This finding was based on the fact that, following the collision, Bowley's truck landed on its side, and Bowley's foot was trapped beneath it. When Bowley began yelling for help, several bystanders — at least three — responded to Bowley's cries and lifted the truck up enough so that Bowley could extract his foot. One of these bystanders testified that he felt a sense of urgency because there was a danger that the overturned truck would catch on fire.
Judge Wolverton also found that Bowley's conduct (entering the intersection at high speed against a red light) jeopardized the safety of every other person who was either driving or riding in the other vehicles at the intersection. The judge noted that the force of the impact was great enough to cause Bowley's vehicle to leave the roadway and land on its side. In other words, the judge apparently found that the people in the other vehicles at the intersection were placed in danger because, given the force of the impact, there was no telling where Bowley's truck and the car that he hit would end up.
In his supplemental memorandum, Bowley argues that the evidence does not support Judge Wolverton's findings on these matters. Specifically, Bowley argues that even though there was testimony presented at his trial that he was driving 70 or 80 miles per hour, there was also some reason to believe that Bowley's speed was slower. Bowley also argues that, even though his truck came to rest on its side, there was no express testimony that Bowley's truck was perched in an unstable position, or that the truck was in danger of catching on fire ( e.g., testimony that the vehicle was smoking).
While these factual issues might be debatable, we are obliged to uphold the superior court's findings of fact unless they are clearly erroneous.
(In Lepley v. State, 807 P.2d 10 95, 1099 n. 1 (Alaska A pp. 19 91), this Cou rt held that a sentencing judge's findings as to the existence of aggravating and mitigating factors should be reviewed under the "clearly erroneous" standard. In Michael v. State, 115 P.3d 517, 519 (Alaska 2005), the supreme court disapproved Lepley in part: (1) the sentencing court's findings of historical fact are still reviewed under the "clearly erroneous" standard of review, but (2) the question of whether given facts establish a particular aggravating or mitigating factor is reviewed de novo — i.e., it is treated as a question of law. Michael did not change the law with respect to a sentencing court's findings of historical fact: when we assess a sentencing court's rulings regarding aggravators and mitigators, we continue to review the court's findings of fact under the "clearly erroneous" standard of review.)
In Bowley's case, employing the "clearly erroneous" standard of review, we conclude that the superior court's contested findings of historical fact are supportable. Given the extensive damage to the vehicle that Bowley hit, and given the fact that Bowley's truck flipped and came to rest on its side, Judge Wolverton could reasonably conclude that Bowley's truck was traveling at the greater speed suggested by the testimony — i.e., 70 to 80 miles per hour.
And, with regard to Bowley's contentions that there was no express testimony that his truck was perched in an unstable position, or that his truck was in danger of catching on fire, we conclude that no express testimony on these subjects was required. It would appear to be a matter of common knowledge that a gasoline-powered motor vehicle could catch fire if it is subjected to the amount of impact present in this case. Moreover, it would also appear to be matter of common experience that when a motor vehicle comes to rest on its side, and when the weight of the vehicle must be shifted to allow the extraction of a person from underneath, there is a danger that the vehicle may tip over.
For these reasons, we conclude that Judge Wolverton's findings are not clearly erroneous. In other words, the judge could reasonably conclude that Bowley's conduct endangered at least one other person besides the two passengers in his car and the two victims of his offenses. Accordingly, we uphold Judge Wolverton's finding of aggravator (c)(6).
Aggravator (c)(10) — conduct among the most serious within the definition of the offense
Judge Wolverton concluded that Bowley's conduct was among the most serious within the definition of manslaughter because Bowley's culpable mental state exceeded normal recklessness and approached extreme indifference to the value of human life — the culpable mental state required to prove second-degree murder.
See AS 11.41.110(a)(2).
Judge Wolverton noted that, in the commentary to the "extreme indifference" clause of the second-degree murder statute, the legislature cited shooting into a tent without knowledge as to whether the tent is currently occupied as a prime example of acting with extreme indifference to the value of human life. See 1978 Senate Journal, Supp. No. 47 (June 12), page 10. When Judge Wolverton examined Bowley's conduct in this case — driving while intoxicated, greatly exceeding the speed limit, and driving into an intersection against a red light, disregarding his passenger's warning that the light was red — he concluded that this conduct was analogous to shooting into a tent without knowledge of who might be inside.
In his supplemental memorandum, Bowley argues that the evidence does not support Judge Wolverton's findings on these matters. Specifically, Bowley points to the testimony given by the two passengers in his car (one of whom was Bowley's friend) that the light controlling traffic in their direction was yellow, and not yet red, when they entered the intersection.
But at Bowley's trial, the driver of the Dodge Neon testified that she did not begin her left turn until she saw the left-turn arrow change to green, and a traffic engineer testified that the traffic signal at the corner of DeBarr and Airport Heights is designed so that the light facing Bowley — i.e., the light controlling east-bound traffic through the intersection — would have turned red 1.4 seconds before the left-turn arrow turned green.
In addition, a witness who observed the collision testified that the light facing Bowley was indeed red, and that another car traveling in the same direction as Bowley had already stopped for the red light before Bowley entered the intersection. This witness testified that Bowley switched lanes so that he could drive around this car and enter the intersection.
In other words, there was ample evidence to support a finding that Bowley entered the intersection well after the traffic light turned red in Bowley's direction.
Bowley also challenges the assertion that he was driving greatly in excess of the speed limit. But the posted speed limit was 40 miles per hour, and a witness who observed the collision testified that Bowley was traveling 70 to 80 miles per hour.
It is true that one of Bowley's passengers declared that he was traveling 20 to 25 miles per hour ( i.e., considerably slower than the speed limit), and Bowley's other passenger declared that he was traveling at, or only slightly above, the speed limit (perhaps as fast as 45 miles per hour). But Judge Wolverton could reasonably conclude, both from the extreme force of the impact and from the two passengers' potential bias in favor of Bowley, that Bowley's vehicle was traveling at the higher rate of speed, well in excess of the speed limit.
Bowley also contests Judge Wolverton's finding that Bowley ignored his passenger's warning that the light was red. He points to the passenger's testimony at trial — where the passenger said that she warned Bowley that the light was yellow and was about to turn red.
But this passenger was impeached with a pre-trial interview that she gave four days after the collision. In this interview, the passenger told the police, "I seen the red light, and [I] told [Bowley that] the light — that [a] red light was coming up." When she was confronted with this pre-trial interview, the passenger conceded that she had previously said that the light was red.
For this reason, the evidence supports Judge Wolverton's finding that the passenger indeed warned Bowley that the light was red — and that Bowley ignored this warning.
The next question is whether, viewing the facts in the light most favorable to Judge Wolverton's ruling, Bowley's conduct is properly categorized as among the most serious within the definition of manslaughter (under a reckless homicide theory).
Bowley drove while intoxicated, at nearly double the speed limit, and he drove through a residential intersection against a red light. Viewing these factors in isolation, they might describe an all-too-frequent pattern of behavior exhibited by drunk drivers. But Bowley did not drive through the red light because of alcohol-induced inattention or impaired coordination or reaction time (or a combination of these). Rather, he did so purposely. His passenger warned him that the light was red, but he did not even try to stop. Instead, he switched lanes so that he could maneuver around a car that had already stopped for the red light.
We agree with Judge Wolverton that this is the type of conduct that approaches the culpable mental state of extreme indifference to the value of human life — i.e., the culpable mental state that would have made Bowley's conduct second-degree murder instead of manslaughter. Accordingly, we uphold Judge Wolverton's finding of aggravator (c)(10).
Whether Bowley's composite sentence of 17 years to serve and 26 years suspended is clearly mistaken
Now that we have upheld the superior court's rulings on the two aggravating factors, the remaining issue to be resolved is Bowley's claim that his composite sentence — 17 years to serve, with an additional 26 years suspended — is overly severe.
As explained above, this composite sentence was imposed for five separate crimes. Bowley was convicted of manslaughter, first-degree assault, and driving under the influence for the motor vehicle collision, and he was convicted of the additional offenses of leaving the scene of an injury accident and tampering with evidence based on his conduct afterwards.
When we review the composite sentence that a defendant has received for two or more criminal convictions, our duty is to assess whether the composite sentence is clearly mistaken, given the whole of the defendant's conduct and history.
H all v. State, 145 P.3d 605, 609 (A laska A pp. 2006); Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
Bowley had a prior felony conviction — a conviction for fourth-degree controlled substance misconduct — from 2001. He was on probation from that felony when he committed the crimes in this case. (Because of this, Bowley stipulated to aggravator (c)(20).) Moreover, at Bowley's sentencing hearing in the present case, the State made an offer of proof (which Bowley did not contest) that when the police searched his truck, they found fifteen one-ounce baggies of marijuana, an electronic scale, and dozens of tablets (each) of morphine sulfate, oxycodone, Mylan, clonazepam, and diazepam. In other words, the evidence indicated that Bowley was selling drugs.
Bowley had a history of careless driving. In the three years preceding the events in this case, Bowley received two tickets for speeding and one ticket for careless driving (based on excessive lane changes). Bowley's probation officer spoke with him about these tickets, because she feared that he might commit another traffic offense and then lose his driver's license on points. Indeed, four days before the events in this case, Bowley's probation officer gave him a travel pass to leave the Anchorage area — and again cautioned him to drive slowly so that he would not get a speeding ticket.
Bowley's sentences for manslaughter and first-degree assault were governed by the pre-2005 version of Alaska's presumptive sentencing law. Because of his prior felony conviction, Bowley was a second felony offender for presumptive sentencing purposes. Accordingly (under the pre-2005 version of the law), he faced a 10-year presumptive term of imprisonment for both the manslaughter conviction and the first-degree assault conviction. And because of the aggravating factors proved by the State, Judge Wolverton was authorized to impose up to the 20-year maximum term for each of these offenses.
Former AS 12.55.125(c)(3).
Former AS 12.55.155(a)(2).
In his sentencing remarks, Judge Wolverton declared that Bowley's offenses of manslaughter and first-degree assault were among the most serious, but he also declared that Bowley's composite sentence had to be significantly increased (above what would normally be imposed for these two crimes) because of Bowley's conduct after the collision — his act of leaving the scene and failing to render aid.
For the manslaughter, Judge Wolverton imposed the 10-year presumptive term, enhanced by an additional 10 years of suspended imprisonment.
For the first-degree assault, Judge Wolverton imposed the same sentence — 10 years to serve plus 10 years suspended. Judge Wolverton ordered that 3 of the 10 years to serve, and all 10 years of the suspended time, were to run consecutively to the manslaughter sentence. Thus, for the manslaughter and the first-degree assault, Bowley received a total of 13 years to serve and an additional 20 years suspended.
For the act of leaving the scene and failing to render aid, Judge Wolverton sentenced Bowley to a consecutive 10 years with 6 years suspended ( i.e., 4 years to serve). With the addition of this sentence, Bowley's composite sentence reached 17 years to serve plus 26 years suspended.
(For the act of evidence tampering, Bowley received 2 years to serve, but Judge Wolverton made this sentence wholly concurrent with the other sentences, so it did not increase Bowley's composite term of imprisonment.)
In support of his contention that a composite sentence of 17 years to serve is excessive, Bowley relies primarily on prior Alaska cases involving drunk drivers who killed and seriously injured two or more victims. He notes that, among these cases, the defendants who received a lengthy time to serve (10 to 19 years) either caused more injury and death than Bowley did or, alternatively, they had worse driving records than Bow ley's. See Foxglove v. State, 929 P.2d 669 (A laska App. 1997); Pusich v. State, 907 P.2d 29 (Alaska App. 1995); Puzewicz v. State, 856 P.2d 1178 (Alaska App. 1993); Ratliff v. State, 798 P.2d 1288 (Alaska App. 1990). See also Doshier v. State, Alaska App. Memorandum Opinion No. 3781 (March 18, 1998), 1998 WL 119455.
Bowley's characterization of these cases is accurate, but his argument overlooks two important factors about his case.
First, Bowley was a second felony offender for presumptive sentencing purposes. He faced a presumptive 10-year term of imprisonment for both the manslaughter and the first-degree assault convictions — and, because Bowley proved no mitigators, this 10-year presumptive term was effectively the minimum sentence that the superior court could impose.
Second, Bowley was separately convicted of two felonies — leaving the scene of an injury accident, and tampering with evidence — for conduct he committed after the manslaughter and first-degree assault. Judge Wolverton concluded that Bowley's composite sentence should reflect a significant enhancement for the crime of leaving the scene of the accident. And, as explained above, Judge Wolverton adhered to this view when he imposed Bowley's sentence. The judge imposed a total of 13 years to serve for the crimes of manslaughter and first-degree assault, and then he imposed an additional 4 years to serve for the crime of leaving the scene of the injury accident.
These two factors lead us to conclude that Bowley's composite total of 17 years to serve is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (stating that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
Bowley makes a separate argument that his composite 26 years of suspended imprisonment is excessive (even assuming that his 17 years to serve is affirmed).
As this Court explained in Heavyrunner v. State, 172 P.3d 819, 821 (A laska App. 2007), "even though suspended imprisonment is not the equivalent of time to serve, in determining whether a sentence is excessive, we must consider the sentence in its entirety, including all suspended time." (Quoting Jimmy v. State, 689 P.2d 504, 505 (Alaska App. 1984).)
This Court has recognized that a sentencing judge may properly impose "a substantial period of suspended incarceration . . . to serve as a deterrent in the event that [the defendant's] efforts toward rehabilitation prove[] unsuccessful." Williams v. State, 859 P.2d 720, 723 (Alaska App. 1993). Accord, Heavyrunner, 172 P.3d at 821.
When Judge Wolverton sentenced Bowley, he declared that the sentencing goal of rehabilitation was not "out of the picture". The judge stated that he believed Bowley "[had] the wherewithal to make good on [his] promise [of reformation]", and Judge Wolverton declared that he intended to impose a sentence that gave Bowley the opportunity to prove himself.
At the same time, however, Judge Wolverton stated that the sentencing goal of deterrence was of particular importance in Bowley's case. As we noted above, Bowley had a history of driving offenses, he was apparently selling various kinds of drugs, and he was on felony probation when he committed the offenses in this case. In addition, Bowley had completed an 18-week drug and alcohol rehabilitation program while he was on probation — and then, as evidenced by the facts of this case, he returned to drinking.
Judge Wolverton declared that Bowley's sentence had to include "a significant portion of suspended jail time" to deter Bowley from engaging in "further violations [of the law] upon [his] release". Given this record, we conclude that the suspended portion of Bowley's composite sentence, although lengthy, is not clearly mistaken.
Conclusion
The sentencing decision of the superior court is AFFIRMED.