Opinion
Court of Appeals No. A-10372.
July 29, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge. Trial Court No. 4FA-07-3594 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, for the Appellant.
Scott L. Mattern, Assistant District Attorney, Fairbanks, and Rick Svobodny, Juneau, Acting Attorney General, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Kenneth T. Ross received a sentence of 4 years' imprisonment for his conviction of felony driving under the influence of alcohol and a consecutive sentence of 3 years' imprisonment for his conviction of assault in the third degree arising out of the same incident. We conclude that the sentencing judge adequately considered Ross's prospects for rehabilitation and that the sentencing record adequately supports the judge's decision to impose consecutive sentences.
AS 28.35.030(n).
AS 11.41.220(a)(1)(B).
Background
On August 5, 2007, Ross drove his vehicle into the opposing lane of traffic on the Parks Highway and collided head on with a correctional van transporting residents from the Northstar Center in Fairbanks. Ross and his passenger, as well as several passengers from the correctional van, had to be hospitalized for treatment of their various injuries. Tests of Ross's blood conducted after the crash determined that his blood alcohol content was .22 percent.
Just a few hours before this collision, Ross w as a passenger in a vehicle when the driver was arrested for driving under the influence. The arresting troopers impounded that vehicle because none of its passengers, including Ross, were sober enough to drive.
Ross has a long history of prior offenses. He was adjudicated a delinquent minor in 2002 for vehicle theft in the first degree, and violated his probation over the following two years by consuming alcohol, failing to complete residential treatment, and failing to follow after-care recommendations. Ross was first convicted as a minor consuming alcohol in 1998, and he had subsequent convictions for this offense in 2002, 2003, 2005, and 2006.
Ross was convicted of misdemeanor driving under the influence of alcohol in 2000 and 2002, and convicted of felony driving under the influence in 2005. Ross has also been convicted of driving without a valid driver's license, driving with a revoked driver's license, theft in the third degree, escape in the fourth degree, and disorderly conduct. He violated his probation on two occasions during 2006 by consuming alcohol. And, while the instant case was pending, he was convicted of fourth-degree assault for attacking his pregnant girlfriend while he was intoxicated.
Ross has also faced serious challenges with substance-abuse treatment. In 2000 he escaped from a residential treatment program in Bethel by climbing out of a window. He applied for treatment at the GRAF Healing Place in 2000 and 2001, but then refused to enter the program. He did complete the GRAF inpatient program in 2003, but was shortly thereafter discharged from outpatient treatment for failing to attend his appointments. He was admitted to the Ralph Perdue Center's inpatient program in late 2003 but left before completing that program. In 2006, his placement at Northstar Center was terminated because he tested positive for using cocaine. Ross was also taken into protective custody on three separate occasions from 2007 to 2008 because he was incapacitated by either alcohol or drugs.
In the present case, Ross entered a plea of no contest to felony driving under the influence and to assault in the third degree based on the injuries to four of the correctional van passengers from the head-on collision. Ross faced a presumptive sentence of 2 to 4 years' imprisonment for each offense because he had been previously convicted of a felony. At the sentencing hearing, Ross conceded three aggravating factors: that his conduct created a risk of imminent physical injury to three or more persons, that his prior criminal history included a felony delinquency adjudication, and that his prior criminal history included convictions for five or more class A misdemeanors. These aggravating factors authorized the sentencing court to impose any sentence up to the 5 year maximum term of imprisonment for each offense.
See AS 12.55.125(e)(2).
AS 12.55.155(c)(6).
AS 12.55.155(c)(19).
AS 12.55.155(c)(31).
AS 12.55.125(e); 12.55.155(a)(1).
Superior Court Judge Robert B. Downes imposed a sentence of 4 years' imprisonment for felony driving under the influence and a consecutive sentence of 3 years' imprisonment for assault in the third degree. Judge Downes also recommended several parole conditions; some of these conditions required Ross to submit to substance abuse evaluation and treatment, mental health evaluation and treatment, and alcohol testing, and also placed restrictions on Ross's presence at places where alcohol is sold or consumed.
Ross now appeals to this court contending that his sentence is excessive.
Discussion
Ross first argues that Judge Downes should not have imposed consecutive sentences that exceeded the maximum penalty for each offense. Generally, a judge may not impose a composite sentence for two or more offenses that exceeds the maximum for the most serious offense, unless the judge makes a finding that a longer term of imprisonment is necessary to protect the public. But no express finding is necessary when the sentencing record adequately establishes that the defendant presents a continuing risk of criminal conduct that could seriously threaten public safety.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377 , 381 (Alaska 1977).
See Powell v. State, 88 P.3d 532, 538 (Alaska App. 2004).
The sentencing record in Ross's case supports Judge Downes's decision to impose consecutive sentences. Ross has committed a continuing series of alcohol-related offenses over the course of ten years. He has not been previously deterred by fines, short jail sentences, probation, formal supervision, conditions of release, suspension of his driver's license, or even by his arrest in this case. Within two weeks of crashing into the Northstar van, Ross committed the offense of driving while his driver's license was suspended. And while his sentencing hearing was pending, Ross was taken into protective custody because he was incapacitated, and was also convicted of fourth-degree assault for the separate incident when he attacked his pregnant girlfriend.
Judge Downes explicitly found that, based on his past behavior, Ross was a menace to society and a grave danger to other drivers. The judge concluded that the aggravating factors made Ross the worst type of offender in his class. He also concluded that Ross would need to be isolated because he had been a danger to the community for many years. These findings are supported by the sentencing record, which demonstrates the necessity for Ross to receive consecutive sentences exceeding the maximum term of imprisonment for each offense.
Ross also argues that Judge Downes failed to consider Ross's youth and his need for structured alcohol treatment. But Judge Downes's remarks reveal that he did consider that Ross is a young man who needs alcohol treatment to be rehabilitated. He also recommended numerous parole conditions designed to ensure that Ross will receive appropriate supervision and treatment when he is released from imprisonment.
A judge is not obligated to give rehabilitation top priority when the sentencing record establishes that the defendant has poor prospects for rehabilitation. In the present case, Judge Downes could rely on Ross's previous failures in substance abuse treatment, his prior violations of probation and bail release, the substance abuse evaluation that found that Ross's relapse potential "[a]ppeared high," and the pre-sentence report's conclusion that Ross's prospects for rehabilitation were dismal. We therefore conclude that Judge Downes gave the appropriate degree of consideration to Ross's prospects for rehabilitation.
See Boziel v. State, 864 P.2d 553, 556 (Alaska App. 1993).
Conclusion
We conclude that the sentencing decision in this case was not clearly mistaken. We therefore AFFIRM the judgment of the superior court.
See, e.g., McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) ("[W ]e now adopt the clearly mistaken test in the review of sentence appeals.").