Opinion
A-14057
05-15-2024
CHARLES ERNEST HERRMANN, Appellant, v. STATE OF ALASKA, Appellee.
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Prineville, Oregon, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Scott Crawford, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).
Appeal from the Superior Court, Third Judicial District, Seward, Jason M. Gist, Judge, Trial Court No. 3SW-21-00172 CR
Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Prineville, Oregon, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Scott Crawford, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Charles Ernest Herrmann was charged with driving with a revoked license and felony DUI after he drove ninety-four miles-per-hour through a residential neighborhood and failed field sobriety tests. He later violated his conditions of release by leaving the presence of his third-party custodian and consuming alcohol. Herrmann pleaded guilty, pursuant to a plea agreement, to felony DUI and violating conditions of release. The parties stipulated to a maximum sentence of 30 days for violating conditions of release, and open sentencing for the felony DUI. At sentencing, the superior court found that Herrmann was a worst offender, sentenced him to a composite sentence of 5 years and 30 days flat, and restricted his eligibility for discretionary parole. Herrmann now appeals.
AS 28.15.291(a)(1) and AS 28.35.030(n), respectively.
AS 11.56.757(a).
Herrmann first argues that the superior court erred in finding that he is a "worst offender." A worst offender is a defendant who, based on the circumstances of the present offense, their criminal history, or both, is the "worst type of offender 'within the group of persons committing the offense in question.'" At Herrmann's sentencing, the superior court explained that Herrmann - whose criminal record included thirteen misdemeanor DUI and three felony DUI convictions - had the most DUI convictions that it had "ever seen." We conclude that the superior court's worst offender finding is supported by the record.
Foley v. State, 9 P.3d 1038, 1040 (Alaska App. 2000).
Keyser v. State, 856 P.2d 1170, 1177 (Alaska App. 1993) (quoting Hintz v. State, 627 P.2d 207, 210 (Alaska 1981)).
See Foley, 9 P.3d at 1040 (concluding worst offender finding supported by the record where the defendant drove into a lane with oncoming traffic, had seven prior DUI convictions, and had one hit and run conviction).
Herrmann next argues that the superior court erred in restricting his eligibility for discretionary parole. Under Alaska law, the superior court may "restrict the eligibility of a prisoner for discretionary parole for a term greater than that required [by statute]" if it provides expressly articulated reasons that are case-specific and supported by substantial evidence. Here, the superior court noted Herrmann's extensive DUI history, finding that "the need for isolation here is so great" that restricting Herrmann's discretionary parole was warranted. The record supports the court's concerns. The sentencing record reflected that Herrmann had fifty-five total criminal convictions, that his alcoholism was ongoing, and that he habitually violated probation and parole conditions. Based on this record, the court's decision to restrict discretionary parole was not clearly mistaken.
AS 12.55.115; Thomas v. State, 413 P.3d 1207, 1213 (Alaska App. 2018) (citing State v. Korkow, 314 P.3d 560, 565 (Alaska 2013)).
See Adams v. State, 390 P.3d 1194, 1207 (Alaska App. 2017) (concluding "judge was not clearly mistaken when she denied parole eligibility").
Herrmann next argues that his composite sentence of 5 years and 30 days flat was excessive. When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that different reasonable judges, confronted with identical facts, will differ on what constitutes an appropriate sentence, and that a reviewing court will not modify a sentence that falls within a permissible range of reasonable sentences. We have independently reviewed the sentencing record in this case and do not find the sentence imposed here clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
The judgment of the superior court is AFFIRMED.