Opinion
Court of Appeals No. A-9804.
August 15, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-2840 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Elizabeth Crail, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Climie L. Douglas argues that the composite term that the superior court imposed on his convictions for first-degree eluding a police officer, driving while under the influence (DUI), refusal to submit to a chemical test, and violating conditions of release is excessive. Because Douglas's sentence is not clearly mistaken, we affirm.
AS 28.35.182(a), AS 28.35.030(a)(1), AS 28.35.032(a), and AS 11.56.757(a) (b)(1), respectively.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
Background facts and proceedings
Early in the morning of August 21, 2005, Douglas was a passenger in a car driven by Benjamin D. Smith that was stopped by University of Alaska, Fairbanks Police Officer Stephen Goetz for speeding. Smith got out of the car, refused Officer Goetz's repeated orders to get back in the car and was eventually subdued. While this was going on, Officer Goetz saw Douglas pull a handgun from behind his back, slide into the driver's seat, and drive away.
Goetz radioed this information to Officer Kurt Lockwood who saw Douglas drive past him heading in the other direction. Officer Lockwood followed with his lights and siren activated, and during the pursuit, Douglas drove at speeds exceeding one hundred miles per hour. Douglas lost control of the vehicle, hit a large street sign, and drove across the median, through the opposing lanes, and off the road through a chain link fence. The car came to rest after colliding with two trucks in the parking lot of the Red Fox Bar. Douglas was walking away from the car when contacted by the trooper. He exhibited signs of intoxication. Douglas declined to submit to a chemical test of his breath. Douglas's conduct violated his bail release conditions in a pending felony case.
A jury convicted Douglas as charged. Douglas had a felony conviction in 2000 for third-degree assault, so Douglas faced a presumptive sentencing range of 2 to 4 years' imprisonment for his conviction of first-degree eluding a police officer. The State proposed two statutory aggravating factors from AS 12.55.155: (c)(8) (Douglas had a criminal history of aggravated or repeated instances of assaultive behavior) and (c)(12) (Douglas was on bail release on a felony charge when he committed the present offense). Superior Court Judge Mark I. Wood found both aggravating factors — (c)(8) based on Douglas's criminal history, and (c)(12) based on the jury's verdict in the current case that Douglas violated conditions of release. Even though Judge Wood found both aggravating factors, he announced that he would not use his authority to exceed Douglas's presumptive range.
AS 11.41.220(a).
AS 28.35.182(e) and AS 12.55.125(e)(2).
Judge Wood concluded that the eluding charge was an aggravated case because of the extreme driving and the involvement of alcohol. He concluded that the DUI was extremely aggravated, that the refusal charge was typical, and that the violation of conditions of release represented "a complete disregard for the orders of the court."
Judge Wood imposed 4 years with 2 years suspended for eluding, 2 months for DUI, 3 days for refusal, and 6 months for violation of conditions of release. He imposed the sentences consecutively. Thus, Douglas received a composite 4-year, 8-month, 3-day sentence with 2 years suspended. Discussion
Douglas does not challenge the time imposed on any of the individual counts. Nor does he challenge Judge Wood's finding of aggravating factors. Douglas argues only that his composite sentence is excessive. Douglas claims that because Judge Wood recognized that he had a potential substance abuse problem, he should have imposed less time to serve and less suspended time.
However, when we evaluate a composite term against a claim of excessiveness using the clearly mistaken standard of review, we examine the particular facts of the case in light of the total range of sentences authorized by the legislature for the particular offense. This standard of review recognizes that there is a permissible range of reasonable terms that a judge may impose in a case.
See State v. Wentz, 805 P.2d 962, 965 (Alaska 1991). See also State v. Hodari, 996 P.2d 1230, 1232-33 (Alaska 2000).
Here, Douglas attempted to flee at very high speed while being pursued by the police. He was under the influence of alcohol and lost control of the car he was driving. He caused thousands of dollars of damage. In addition, Douglas violated his conditions of release in another felony case. Although two statutory aggravating factors applied, Judge Wood imposed the minimum time to serve in the presumptive range that applied to Douglas's felony conviction.
From our review of the sentencing record in this case, we conclude that Douglas's composite term is not clearly mistaken. Conclusion
See McClain, 519 P.2d at 813-14.
The judgment of the superior court is AFFIRMED.