Opinion
Court of Appeals No. A-9041.
November 22, 2006.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles K. Cranston, Judge, Trial Court No. 3KN-94-965 CR.
Brooke Browning, Assistant Public Defender, Kenai, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
The superior court revoked Pamela L. Doshier's probation and imposed 7 of the 8 years that were suspended. Doshier claims that the superior court's reliance on statutory aggravating factors to impose suspended imprisonment when Doshier was originally sentenced in the case violates her Sixth Amendment right to a jury trial recognized in Blakely v. Washington. We conclude that even if Blakely applies to Doshier's case, any possible error in the court's finding of the aggravating factors is harmless beyond a reasonable doubt.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Doshier also argues that her sentence is excessive. We reject that claim because we conclude that Doshier's sentence is not clearly mistaken. Factual background and procedural history
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).
On July 6, 1994, Doshier was driving her car about fifty miles per hour when she rear-ended a stationary vehicle occupied by Patsy and Sam Gibson. Doshier did not apply her brakes or otherwise attempt to avoid the collision. The collision forced the Gibsons' vehicle into oncoming traffic, where it was struck again by a truck. Patsy Gibson was killed almost immediately, and her husband Sam was seriously injured.
The police found several empty wine cooler bottles and a partially-consumed bottle of vodka on the floor of Doshier's vehicle. Testing showed that Doshier's blood-alcohol level was .353 percent.
The grand jury indicted Doshier for second-degree murder and second-degree assault. She reached a plea bargain with the State; Doshier pleaded no contest to manslaughter and second-degree assault. At the time of Doshier's offense, manslaughter was a class A felony with a maximum sentence of 20 years' imprisonment. Because Doshier was a first-felony offender, she faced a presumptive term of 5 years' imprisonment for manslaughter. Second-degree assault was a class B felony with a maximum sentence of 10 years' imprisonment and no presumptive term for first felony offenders.
AS 11.41.120(a) AS 11.41.210(a), respectively.
AS 11.41.120(b); former AS 12.55.125(c).
See former AS 12.55.125(c)(1).
AS 11.41.210(b); AS 12.55.125(d).
Doshier was a first felony offender with a history of driving while intoxicated. She had been charged four prior times with driving while intoxicated, resulting in two convictions for driving while intoxicated and two convictions for reckless driving. Doshier had lost a job as the manager of a Soldotna hotel and restaurant because of her drinking. In June 1994, she enrolled in an in-patient treatment program at Central Peninsula Hospital, but she was terminated from the program eight days before the fatal collision because, when she returned from a pass, she was intoxicated.
The State proposed several aggravating factors under AS 12.55.155(c). Doshier conceded aggravator (c)(4) (Doshier used a dangerous instrument to commit manslaughter) and (c)(6) (Doshier's conduct endangered three or more persons). Superior Court Judge Charles K. Cranston found one additional aggravator, (c)(10) (Doshier's conduct was among the most serious within the definition of manslaughter). Although Doshier argued that a non-statutory mitigating factor, that she had uncommonly good prospects for rehabilitation, applied to her case, Judge Cranston found that she had not proved this mitigating factor by clear and convincing evidence.
See Smith v. State, 711 P.2d 561, 569-70 (Alaska App. 1985).
Judge Cranston also found that Doshier was a worst offender based on the offense and her criminal history.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Judge Cranston originally imposed a composite 20-year term with 6 years suspended. Doshier appealed her sentence. At the conclusion of the appellate process, we directed the superior court to impose no more than a net 20-year term with 8 years suspended, a net 12-year term to serve. Judge Cranston imposed that sentence.
While incarcerated, Doshier completed the Basic Alcohol Drug Education program at Wildwood and another program at Hiland Mountain. She remained in the Hiland Mountain program for two years before going to Akeela House under furlough status. Doshier completed an aftercare program with Akeela House before she was released into the community on July 20, 2002.
Doshier obtained employment quickly, and soon after her release, Doshier reported that she owned a vehicle and resided in a new home.
While on probation, Doshier regularly attended Alcoholics Anonymous (AA) meetings a couple of times per week. Doshier also volunteered with Mothers Against Drunk Driving (MADD). She regularly spoke about her experiences at MADD panels.
On April 19, 2004, Doshier told her probation officer that she drank alcohol in violation of her probation. She told her probation officer that she had not driven and that her boss had taken her home. She stated that she wanted to get back into treatment and had been going to AA meetings all weekend.
Doshier reported to her probation officer on April 20, 2004, to discuss her relapse prevention plan. Her probation officer told her that she had to attend AA every day, see a mental health provider for her depression, and return to Akeela House to attend a group session once a week. During the month following her relapse, Doshier met with her probation officer as scheduled and followed the prevention plan that they had developed. The probation officer gave her permission to travel to Fairbanks for a dog show.
Doshier did not make it to the dog show. Instead, she was arrested on May 28, 2004, on the Richardson Highway for driving under the influence (DUI). Several motorists had called the Alaska State Troopers to report a possible intoxicated driver before blocking Doshier's vehicle with their own and removing her keys from the vehicle. The motorists reported that Doshier had been weaving all over the road, signaling in one direction and then turning the other, straddling the center yellow line, and swerving from one side of the road to the other. When she finally stopped, Doshier thought she was heading to Fairbanks but was driving south.
AS 28.35.030.
The trooper who arrived at the scene reported that Doshier smelled of alcohol, had slurred speech and bloodshot eyes, and admitted to drinking vodka. She was asked to perform a number of sobriety tests, all of which she failed. A portable breath test showed Doshier's blood alcohol level to be .316 percent. Doshier was arrested for DUI and transported to Delta for breath testing. Although the conditions of her probation and parole required her to submit to a blood or breath test, Doshier refused to provide a breath sample for the Datamaster.
Doshier was convicted of DUI. On July 19, 2004, District Court Judge Jane F. Kauvar sentenced Doshier to 360 days' imprisonment with 70 suspended (290 days to serve), and 10 years' probation. She also fined Doshier $4000 and revoked Doshier's driver's license for life.
The State filed a petition to revoke Doshier's probation in this case on the grounds that she had violated her probation by consuming alcohol and committing the offense of DUI. Her probation officer concluded that Doshier's time on probation had been a failure. She stated that, "[a]ll the chances and breaks given to the defendant have failed to get her attention. In addition[,] it has failed to protect the community from an alcoholic who has already taken one life."
Doshier argued that, although Judge Cranston had originally found aggravating factors, the probation revocation proceeding violated the Supreme Court's holding in Blakely. Judge Cranston rejected this argument. Judge Cranston found that each of the aggravating factors he found at Doshier's original sentencing hearing could apply equally to what happened in the most recent case; through the use of a dangerous instrument, Doshier had endangered the lives of more than three people by weaving all over the road, leading private citizens to block her path with their own vehicles. He found that it was luck that prevented Doshier from causing another serious accident in May 2004.
Judge Cranston imposed 7 of the 8 years of suspended imprisonment. He stated that, although he was giving her another chance at rehabilitation, the court's focus should be on protecting society from Doshier. He concluded that it would be "in society's best interest . . . to . . . isolate [Doshier] for as long as it takes, consistent with the court still retaining, and the probation department still retaining, some authority over Doshier." Judge Cranston sought to maximize the amount of time Doshier would be under the supervision of the criminal justice system.
The Blakely issue
Doshier renews her claim that the court violated her Blakely right to a jury trial by finding the aggravating factors without submitting them to a jury. The State argues that Blakely does not apply retroactively to a case that was final before Blakely and its predecessor, Apprendi v. New Jersey, were issued. However, we recently held Blakely fully retroactive.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Smart v. State, ___ P.3d ___, Alaska App. Opinion No. 2070 (Oct. 27, 2006), 2006 WL 3042821.
The State also argues that Blakely does not apply when a sentencing court is deciding whether to impose suspended imprisonment after revoking a defendant's probation. We have yet to decide this issue, but we need not resolve it here. Blakely error is subject to a harmless error analysis, and in this case, we find any error was harmless beyond a reasonable doubt.
Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 2552 (2006); Milligrock v. State, 118 P.3d 11, 16-1 (Alaska App. 2005).
At her original sentencing, and at oral argument in this case, Doshier conceded that the facts of her case warranted finding aggravator (c)(4) because her vehicle constituted a dangerous instrument that was used in committing her crimes. The evidence is undisputed that Doshier drove her vehicle into the Gibsons' vehicle. We conclude that there is no reasonable possibility that a jury would find in Doshier's favor on aggravator (c)(4).
Doshier conceded aggravator (c)(6) at her original sentencing. Again, the undisputed evidence shows that Doshier endangered at least three people when she rear-ended the Gibsons' vehicle: Patsy and Sam Gibson, and the driver of the truck that crashed into the Gibsons' vehicle. We conclude that there is no reasonable possibility that a jury would find in Doshier's favor on aggravator (c)(6). Thus, even if we assume that Blakely applies to the imposition of suspended imprisonment when Doshier's probation was revoked, we conclude that any error is harmless beyond a reasonable doubt.
Under the pre-2005 sentencing code, once a sentencing court found any one statutory aggravating factor, the court was authorized by law to impose a sentence up to the maximum for the offense. Because Judge Cranston found statutory aggravating factors, he was authorized to impose the 8 years of suspended imprisonment.
See former AS 12.55.155(a)(2).
Excessive sentence claim
Next, Doshier argues that her sentence is excessive. Because Judge Cranston imposed 7 years of suspended imprisonment, Doshier's composite sentence is 20 years with 1 year suspended, a net 19-year term to serve. Although Doshier concedes the seriousness of her original offense and the recent DUI, Doshier points out that her net 19-year term to serve exceeds reported sentences for other defendants whose conduct and record were more aggravated than hers. Doshier points out that the defendant in Pusich v. State received a composite sentence of 25 years with 7 suspended, a net 18-year term to serve, for killing three people and seriously injuring a fourth. Defendants in other vehicular homicide cases have received composite terms that were shorter or no more than Doshier's when their conduct was more egregious or caused more severe results.
907 P.2d 29 (Alaska App. 1995).
Id. at 32.
See Foxglove v. State, 929 P.2d 669, 672 (Alaska App. 1997) (upholding a composite sentence of 19 years to serve for one count of manslaughter and four counts of first-degree assault, plus another first-degree assault arising from a separate incident); Puzewicz v. State, 856 P.2d 1178, 1181-82 (Alaska App. 1993) (upholding a sentence of 18 years with 5 years suspended for two counts of second-degree murder where the defendant had a record of driving while intoxicated and had failed at attempts at alcohol treatment).
But the superior court imposed substantial imprisonment when Doshier was originally sentenced. At that point she had a significant history of drinking and driving and had already failed at alcohol treatment. In spite of her long incarceration and the programs she attended while incarcerated, Doshier was unable to control her drinking and driving. As Judge Cranston found, Doshier avoided harming others in the most recent DUI through luck. Despite regular probationary supervision and the additional treatment Doshier obtained after her original sentence, Doshier did not avoid drinking and driving. She drank until she was disoriented. Her driving drew the attention of several other drivers who took the extraordinary step of blocking Doshier's vehicle and taking her keys until the troopers arrived. Even so, Doshier produced a spare key and attempted to drive away again. But the other drivers again stopped her vehicle and removed the spare key.
Judge Cranston emphasized Doshier's isolation when he evaluated the sentencing considerations and discounted the prospects of Doshier's rehabilitation. Doshier's failure on probation is a significant circumstance the superior court properly considered when fashioning an appropriate sentence. From our own review of the record, we conclude that Doshier's sentence is not clearly mistaken. Conclusion
See Chrisman v. State, 789 P.2d 370, 371 (Alaska App. 1990).
See McClain, 519 P.2d at 813-14.
The judgment of the superior court is AFFIRMED.