Opinion
A-13930 A-13939 7130
10-16-2024
KEIF ALLEN HERING, Appellant, v. STATE OF ALASKA, Appellee.
Justin Racette (opening brief) and Renee McFarland (reply brief), Assistant Public Defenders, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court Nos. 4FA-17-00796 CR & 4FA-20-00027 CR Paul R. Lyle, Judge.
Justin Racette (opening brief) and Renee McFarland (reply brief), Assistant Public Defenders, and Terrence Haas, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
Pursuant to a plea agreement, Keif Allen Hering pleaded guilty to one count of first-degree failure to stop at the direction of a peace officer (felony eluding) and admitted to violating his probation in a prior felony case. The parties agreed that sentencing would remain open to the superior court.
At the sentencing hearing, the court found two aggravating factors in relation to the felony eluding conviction but declined to find Hering's proposed mitigating factor. The superior court imposed a sentence of 4.5 years to serve on the felony eluding conviction and revoked 1 year of suspended time in Hering's prior felony case - for a composite sentence of 5.5 years.
Hering now appeals his sentence, raising two claims.
First, Hering argues that the superior court erred in failing to find the "least serious" mitigating factor in relation to his felony eluding conviction. Having reviewed the record, we agree with the superior court that Hering's conduct did not qualify as "among the least serious" within the definition of the offense.
Second, Hering argues that his composite sentence of 5.5 years to serve is excessive and that the court failed to make sufficient findings to justify exceeding the 5-year Neal-Mutschler ceiling - i.e., the maximum permissible sentence for his felony eluding conviction. We conclude, however, that the superior court made sufficient findings to justify a sentence above 5 years and that the court's imposition of a composite sentence of 5.5 years is not clearly mistaken.
We therefore affirm the judgment of the superior court.
Background facts and proceedings
On January 2, 2020, just before 5:00 a.m., an Alaska State Trooper in North Pole observed a vehicle driving without illuminated taillights. The trooper activated his overhead lights and sirens in order to initiate a traffic stop. The vehicle turned into a vacant lot, looped around, and pulled back out onto the road. The vehicle then turned onto another road and accelerated to around 55 miles per hour in a 35-mile-per-hour speed zone. The vehicle proceeded to drive down the center of the road, forcing an oncoming vehicle to pull over, and then turned onto an ATV trail. About a quarter of a mile down the trail, the vehicle lost control and crashed into a tree.
Because Hering entered into a plea agreement, these facts are taken from the presentence report.
When the trooper made contact with the driver of the vehicle, Keif Allen Hering, the trooper observed that Hering smelled of alcohol and had slow, slurred speech and bloodshot, glassy eyes. The trooper noticed three one-ounce liquor bottles and an empty twenty-four-ounce bottle of alcohol behind the vehicle's driver seat. Hering was unable to perform sobriety tests due to injuries he sustained in the crash and was taken to the hospital.
While Hering was at the hospital, the trooper obtained a search warrant to test Hering's blood, which was collected some number of hours after Hering crashed his vehicle. This test revealed that Hering's blood contained no alcohol but did contain both methamphetamine and amphetamine. At the time, Hering was on probation in a 2017 case in which he had been convicted of felony driving under the influence (and had absconded from probation).
The State charged Hering with first-degree failure to stop at the direction of a peace officer (felony eluding), felony driving under the influence, reckless driving, and driving while license is revoked. Based on these offenses (and Hering's failure to report to probation), the State also filed a petition to revoke Hering's probation in his 2017 case.
AS 28.35.182(a)(1), AS 28.35.030(n), AS 28.35.400, and AS 28.15.291(a)(1), respectively.
Hering subsequently entered into an Alaska Criminal Rule 11 plea agreement with the State. Pursuant to the agreement, Hering pleaded guilty to one count of felony eluding and, based on this conviction, admitted to violating his probation in the 2017 case. The State dismissed the remaining charges. The parties agreed that sentencing would be open to the superior court.
As a third felony offender, Hering faced a presumptive sentencing range of 3 to 5 years on the felony eluding conviction. Hering also faced the imposition of up to 4 years and 355 days of suspended time on his 2017 case. (In the 2017 case, Hering had received a sentence of 60 months with 60 months suspended after he graduated from Wellness Court and qualified for a mitigated sentence. Hering had one prior probation violation in which the court imposed 10 days of his suspended time.)
AS 12.55.125(e)(3).
The cases were joined for sentencing. The State proposed two aggravating factors in relation to the felony eluding conviction: (1) that, under AS 12.55.155(c)(15), Hering had three or more prior felony convictions, and (2) that, under AS 12.55.155(c)(31), Hering had five or more prior misdemeanor convictions. Hering stipulated that these two aggravating factors applied. Hering also proposed a mitigating factor: that, under AS 12.55.155(d)(9), his conduct was "among the least serious conduct included in the definition of the offense."
The State originally proposed a third aggravating factor but later withdrew it. Aggravating factors were not strictly necessary since Hering was a third felony offender and the high end of the applicable presumptive range - 5 years - was the same as the statutory maximum. See AS 12.55.125(e)(3).
The superior court found the two aggravating factors proposed by the State but rejected Hering's proposed mitigating factor. The court imposed a sentence of 4.5 years to serve on the felony eluding conviction and revoked 1 year of suspended time on the 2017 case - for a composite sentence of 5.5 years to serve. The court also converted the entirety of Hering's term of probation in the 2017 case to supervised probation. (Hering had originally received a split 5-year term of probation in the 2017 case - the first half was supervised probation and the second half was unsupervised probation.)
Hering now appeals his sentence.
Why we conclude that Hering failed to establish that his conduct was among the least serious included in the definition of felony eluding
Hering first argues that the superior court erred in failing to find that his conduct was among the least serious conduct included in the definition of first-degree failure to stop at the direction of a peace officer (i.e., felony eluding).
AS 12.55.155(d)(9) (defining the "least serious" mitigating factor).
A person commits first-degree failure to stop if the person (1) commits second-degree failure to stop (i.e., the person fails to stop at the direction of a peace officer as soon as practical and in a reasonably safe manner under the circumstances), and, as relevant to this case, (2) simultaneously commits the offense of reckless driving.
AS 28.35.182(a)(1).
Reckless driving is defined by statute as driving "in a manner that creates a substantial and unjustifiable risk of harm to a person or to property." A "substantial and unjustifiable risk" is defined as "a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."
AS 28.35.400(a).
Id.
In the superior court, Hering argued that his conduct "just barely" constituted reckless driving and was "at the low end of recklessness." In support of this argument, Hering maintained that the police pursuit was "short" and occurred in the early morning hours in an area that was not "heavily trafficked." Hering contended that he turned onto the ATV trail in the hope of de-escalating the situation, and he noted that the only injury and property damage was to himself and his vehicle.
The superior court rejected the mitigator, finding that Hering's conduct posed an actual risk to people and property. The court found that Hering was going 20 miles per hour over the speed limit in a residential neighborhood at 4:50 a.m. The court further found that Hering was driving down the middle of the road, did not take any action to avoid hitting another car, and forced another driver to "take evasive action," posing a "real danger to an innocent motorist."
The court rejected Hering's explanation that he turned down the ATV trail in order to de-escalate the situation and found that Hering had instead turned onto the trail in order to further evade the officer. The court pointed out that the pursuit ended only because Hering crashed into a tree - not because Hering eventually pulled over - and that he had caused injury and damage to himself and his vehicle.
On appeal, Hering renews his claim that his conduct was among the least serious included within the definition of felony eluding. In support, he relies on our decision in Ambacher v. State, in which we found insufficient evidence of reckless driving to support the defendant's felony eluding conviction.
Ambacher v. State, 521 P.3d 604, 610 (Alaska App. 2022).
In Ambacher, the defendant drove 25 miles per hour over the speed limit on a road with little traffic in the middle of a clear, dry day. Although the wheels of his vehicle briefly crossed the center and fog lines as he navigated a long S-curve, he reduced his speed during this time, and there was no evidence that he endangered other people or property. And ultimately, the pursuit ended after a minute and a half when Ambacher turned into a trailer park and came to a full stop.
Id. at 605.
Id.
Id.
Hering's conduct stands in marked contrast to the conduct in Ambacher. According to the superior court's findings, Hering drove down the middle of the road, forcing another driver to pull over and posing an actual risk of danger to that driver. In addition, Hering did not stop of his own volition or maintain control over his vehicle; the pursuit ended only when Hering drove onto an ATV trail in order to further evade the officer and then crashed into a tree, injuring himself and damaging his vehicle.
Moreover, unlike in Ambacher, which addressed the sufficiency of the State's evidence to support a conviction, Hering had the burden of proving his proposed mitigator by clear and convincing evidence. Here, even after forcing a driver to take evasive action, Hering continued to drive in such a dangerous manner that he crashed his vehicle into a tree. We agree with the superior court that Hering failed to meet his burden of showing that this conduct qualified as among the least serious within the definition of felony eluding premised on a reckless driving theory.
AS 12.55.155(f)(1).
See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (recognizing that an appellate court reviews de novo the question of whether the defendant's conduct, as found by the trial court, was "among the least serious conduct within the definition of the offense"). Hering cites several cases in which the defendant's driving was more egregious than his own driving. But the fact that Hering's conduct may not have been among the most serious does not necessarily make it among the least serious. See State v. Parker, 147 P.3d 690, 695 (Alaska 2006).
We therefore uphold the superior court's rejection of the "least serious" mitigator.
Why we conclude that Hering's sentence is not clearly mistaken
As we previously noted, Hering faced a maximum sentence of 5 years on the felony eluding conviction. The superior court sentenced Hering to a composite sentence of 5.5 years to serve - 4.5 years on the eluding conviction and 1 year for the probation violation in Hering's prior case.
Hering argues that the court failed to make sufficient findings to exceed the 5-year maximum sentence for his felony eluding conviction, in violation of the Neal-Mutschler rule. Under Neal-Mutschler, before a sentencing judge imposes consecutive sentences that exceed the maximum term of imprisonment for the defendant's most serious offense, the judge must find that confinement for the composite term is necessary to protect the public or to satisfy another sentencing goal.
Phelps v. State, 236 P.3d 381, 384-85, 392-93 (Alaska App. 2010) (discussing Neal v. State, 628 P.2d 19, 21 (Alaska 1981), and Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977), and articulating the contemporary Neal-Mutschler rule).
We have never explicitly held that the Neal-Mutschler rule applies to the circumstances in this case - i.e., to the imposition of previously suspended time upon a probation revocation. The State contends that the Neal-Mutschler rule restricts a court's sentencing authority only when the court is imposing consecutive sentences for two or more new crimes. The superior court recognized that this is an open question under Alaska law but nonetheless proceeded to make findings on this point "out of an abundance of caution."
See Davis v. State, 2018 WL 6119900, at *3 (Alaska App. Nov. 21, 2018) (unpublished) (stating that this Court has "never explicitly held that probation revocation sentences are governed by the Neal-Mutschler rule" (citing Gottschalk v. State, 2007 WL 1519633, at *2 (Alaska App. May 23, 2007) (unpublished); Rose v. State, 2007 WL 465218, at *2 (Alaska App. Jan. 24, 2007) (unpublished); Weaver v. Anchorage, 2009 WL 1099424, at *1 (Alaska App. Apr. 22, 2009) (unpublished))).
We need not decide this issue because, even assuming that the Neal-Mutschler rule applies to this situation, the record shows that the superior court made ample findings to justify its imposition of a composite sentence exceeding the 5-year statutory maximum for felony eluding. The court found that a sentence exceeding 5 years was necessary "to protect the public," "to deter Mr. Hering from future criminal conduct," and to "reaffirm respect for societal norms." The court pointed to Hering's "past abysmal performance when on probation and parole," including repeated acts of absconding, and noted that "nothing that has been done so far has worked," including lesser periods of incarceration, the imposition of suspended time, supervised probation, or Wellness Court. The court explained its determination that, at this point, nothing short of a substantial period of isolation, "which need[ed] to be more than five years," was sufficient to protect the public and deter Hering from repeatedly engaging in driving offenses that put the public at risk.
The State argues that this Court lacks jurisdiction to review the excessiveness of Hering's composite sentence. The State relies on the fact that one of the constituent parts of Hering's composite sentence - Hering's sentence in his 2017 felony case - is below the two-year jurisdictional threshold required to appeal a felony sentence as excessive to this Court. See AS 22.07.020(b). But under AS 12.55.120, a defendant has the right to appeal to this Court a sentence of imprisonment "for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense or exceeding 120 days for a misdemeanor offense . . . on the ground that the sentence is excessive." AS 12.55.120(a) (emphasis added). In Peters v. State, we held that our jurisdictional statute, AS 22.07.020 - which directly refers to AS 12.55.120 and was enacted at the same time - should be read in conjunction with AS 12.55.120. Peters v. State, 943 P.2d 418, 420-21 (Alaska App. 1997). Accordingly, we concluded that we had jurisdiction to hear an excessive sentence appeal of unsuspended sentences imposed simultaneously for two misdemeanors when the composite sentence exceeded the 120-day misdemeanor threshold, even though no individual sentence did. Id. We reach the same conclusion here.
The superior court's explicit findings on the Neal-Mutschler rule were amplified by its extensive findings on the Chaney sentencing criteria. In particular, the court noted that Hering had eighteen prior convictions, which included multiple prior felonies (two convictions for felony driving under the influence, one prior conviction for felony eluding, and one prior conviction for felony refusal to submit to a chemical test) and ten driving-related misdemeanors. The court acknowledged that Hering had previously graduated from Wellness Court but noted that his pattern of absconding from probation and his substance use continued even after that time. The court found that Hering's potential for rehabilitation was "very low" and that it was "highly likely that he [would] recidivate."
AS 12.55.005; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
As a result of Hering's extensive driving-related criminal history, the court placed "considerable weight" on the isolation of Hering to prevent harm to the public. The court found that Hering "[could not] be trusted not to drive recklessly and irresponsibly" if released and that he had shown "no insight into the danger he poses" to the public. The court also found that "a robust sentence [was] needed to maintain respect" for the societal norm that citizens will yield to the direction of law enforcement officers and not put the public at risk by trying to evade law enforcement.
These findings provide further justification for the court's decision to exceed the maximum permissible sentence for Hering's most serious offense.
Hering notes that the superior court converted his entire probation term in the 2017 case to supervised probation and argues that the superior court's imposition of a composite sentence of 5.5 years together with this conversion was excessive. But the court specifically found that a "considerable period" of supervision was necessary to protect the public - a finding that is supported by the record. And although the State argued that Hering was a "worst offender" and the court noted that "the facts would support such a finding given [Hering's] criminal history and his repeated failures at rehabilitation," the court declined to make such a finding because it concluded that a sentence of less than the maximum sentence - together with the conversion of probation from unsupervised to supervised - would be sufficient to meet the Chaney criteria.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (providing that a worst offender finding may be based on the defendant's history, the current offense, or both).
This Court will affirm a sentencing decision unless the decision is clearly mistaken. Having reviewed the record, we conclude that the superior court's findings for exceeding the Neal-Mutschler threshold were more than sufficient and that the composite sentence imposed is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813 (Alaska 1974) (holding that a "sentence will be modified only in those instances where the reviewing court is convinced that the sentencing court was clearly mistaken in imposing a particular sentence").
Conclusion
The judgment of the superior court is AFFIRMED.