Opinion
Court of Appeals No. A-9229.
May 23, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge., Trial Court No. 3AN-98-4387 CR.
Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Clayton W. Gottschalk was convicted in 1999 of felony while driving under the influence and felony breath-test refusal. Both of these offenses are class C felonies.
AS 28.35.030(n) and AS 28.35.032(p), respectively.
Id.
Gottschalk's sentencing was governed by Alaska's pre-2005 sentencing provisions. Under those provisions — specifically, under former AS 12.55.125(k)(2) — Gottschalk could not receive more than 2 years to serve on either offense unless the superior court found one or more of the aggravating factors listed in AS 12.55.155(c), or unless the superior court found extraordinary circumstances as defined in AS 12.55.165.
The superior court sentenced Gottschalk to consecutive terms of 36 months with 28 months suspended on each count. Because each of these sentences involved only 8 months to serve, these sentences were lawful in the absence of aggravating factors or extraordinary circumstances.
Gottschalk was released from prison in 2000, but by the end of that year the State had filed a petition to revoke his probation, alleging that Gottschalk had consumed intoxicating liquor, refused to submit to a breath test, and committed weapons misconduct and trespass. The superior court found that Gottschalk had violated his probation, and the court imposed 18 months of the previously suspended jail time on Gottschalk's felony DUI conviction, effectively bringing Gottschalk's DUI sentence to 36 months with 10 months suspended (26 months to serve).
Gottschalk served this sentence and was again released. In 2006, the State filed a second petition to revoke Gottschalk's probation. The superior court again found that Gottschalk had violated his probation. But before the sentencing hearing, Gottschalk filed a motion under Criminal Rule 35(a), arguing that he had already been subjected to an illegal sentence and that the superior court could not lawfully impose any further jail time.
Gottschalk's argument was based on the United States Supreme Court's decision in Blakely v. Washington. Gottschalk pointed out that, under former AS 12.55.125(k)(2), his original sentence could not have exceeded 24 months to serve absent a finding of at least one aggravating factor. Gottschalk argued that this limitation continued to govern his sentencing at any probation revocation proceeding. Gottschalk contended that, in the absence of aggravating factors, the superior court could not lawfully impose more than 16 months of his previously suspended jail time — because, if more than 16 months was imposed, Gottschalk's total time to serve (including his original time to serve of 8 months) would exceed 24 months. Gottschalk argued that, under Blakely, such a sentence would be unlawful unless the State proved one or more aggravating factors to a jury.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
The superior court denied Gottschalk's motion, and ultimately the superior court revoked all of Gottschalk's previously suspended jail time. Thus, Gottschalk has now been ordered to serve 36 months ( i.e., 3 years) for each felony offense, for a total of 6 years' imprisonment.
Gottschalk now appeals the superior court's sentencing decision. He renews his Blakely challenge, and he also argues that his composite sentence of 6 years violates the Alaska Supreme Court's Neal-Mutschler rule, which restricts a sentencing court's authority to impose consecutive sentences that exceed the maximum sentence that could be imposed for the defendant's single most serious offense.
See N eal v. State, 628 P.2d 19, 21 (A laska 1981); M utschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Recently, this Court rejected the Blakely argument that Gottschalk raises. In Surrells v. State, we held that proof of aggravators is not necessary when the superior court revokes the probation of first felony offenders sentenced for class C felonies under former AS 12.55.125(k)(2), even if the defendant's total time to serve after the revocation exceeds the 2-year ceiling on time to serve that would have governed the defendant's original sentencing.
151 P.3d 483 (Alaska App. 2006).
Id. at 489-90.
Given this authority, the superior court correctly rejected Gottschalk's Blakely argument. The remaining issue is Gottschalk's argument that his sentence violates the Neal-Mutschler rule.
Under Neal, before a judge imposes consecutive sentences that exceed the maximum term of imprisonment for the defendant's single most serious offense, the judge "should make a formal finding that confinement for the [composite] term is necessary to protect the public." We assume, for purposes of deciding Gottschalk's appeal, that the Neal-Mutschler rule applies when a court is revoking a defendant's probation.
Neal, 628 P.2d at 21.
As explained above, both of Gottschalk's felony offenses — DUI and breath-test refusal — are class C felonies. The maximum term of imprisonment for these offenses is 5 years. Thus, Gottschalk's composite term of 6 years exceeds the Neal-Mutschler ceiling. Moreover, the superior court made no formal Neal-Mutschler finding when the court imposed the 6-year composite sentence.
AS 12.55.125(e).
However, even when the sentencing judge has not made an explicit Neal-Mutschler finding, an appellate court may affirm the sentence if "[t]he record contains ample evidence that [the offender] presents a risk of continued criminal conduct which would seriously threaten the public safety."
Neal, 628 P.2d at 21. See Walsh v. State, 134 P.3d 366, 372 (Alaska App. 2006); Powell v. State, 88 P.3d 532, 538-39 (Alaska App. 2004); Waters v. State, 64 P.3d 169, 174-75 (Alaska App. 2003) (applying this rule).
At the time of Gottschalk's original sentencing for felony DUI and felony breath-test refusal in 1999, he was also found guilty of driving with a suspended license and leaving the scene of an accident. Moreover, Gottschalk had three prior misdemeanor assault convictions, two prior DUI convictions, four prior convictions for driving with a suspended license, three convictions for disorderly conduct, and convictions for concealment of merchandise, resisting arrest, and failure to appear.
As described above, Gottschalk's probation was revoked in 2000 for weapons misconduct and trespass. (Gottschalk, who was highly intoxicated, got into an argument with another man and threatened to shoot him.) While Gottschalk was on bail release in connection with these charges, he was arrested in Dillingham for felony DUI; his blood alcohol content was .27 percent.
Three days after Gottschalk was released after serving the additional jail time from his first probation revocation, Gottschalk was again arrested for DUI — which became the basis for the State's second petition to revoke Gottschalk's probation.
Judge Wolverton relied on this record in concluding that Gottschalk had proven that he was not amenable to probation supervision and that the primary goal in sentencing Gottschalk was the safety of the community. We conclude that Judge Wolverton's findings and Gottschalk's extensive record of prior offenses and failures on probation clearly establish that the sentence imposed was "necessary to protect the public." We conclude that the record in this case fully supports the sentence that Judge Wolverton imposed.
The judgment of the superior court is AFFIRMED.