Opinion
No. A-9420.
January 24, 2007.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Court of Appeals No. A-9420, Trial Court No. 3PA-01-99 CR; 99-2388 CR; 96-390 CR; 96-378 CR; 95-2016 CR; 95-1246 CR.
Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Michael J. Walsh, Assistant District Attorney, Palmer, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Lee F. Rose appeals the composite term of imprisonment he received when the superior court revoked his probation in several cases and imposed all his suspended imprisonment. The court revoked Rose's probation on the basis of Rose's new charges of felony driving while under the influence and driving while license revoked. Rose was sentenced on these new charges at the same time that the court revoked his probation.
We affirm Rose's sentence because the composite term that the superior court imposed is not clearly mistaken. Facts and proceedings
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court must uphold a sentencing decision unless the sentence is clearly mistaken).
On July 18, 2003, Rose drove his pickup off the road and crashed into a ditch. Rose was injured and emergency personnel transported him to the Valley Hospital in Palmer. Rose exhibited signs of intoxication; a blood-alcohol test showed that he had an alcohol level of .30 percent.
The grand jury indicted Rose for felony driving while under the influence because Rose had at least two prior qualifying convictions for driving while under the influence. Rose was also charged with one count of driving while license revoked.
AS 28.35.030(a)(1) (2), (n)
AS 28.15.291(a)(1).
Rose pleaded no contest to these two charges. The superior court imposed a presumptive 2-year term for felony driving while under the influence.
AS 28.35.030(n) AS 12.55.125(e).
Rose was on probation in several other cases. He admitted he violated his probation in each case based on the new case of felony driving while under the influence and driving while license revoked.
In Palmer case 3PA-95-1246, Rose was convicted of fourth-degree assault and sentenced to 360 days with 330 days suspended. Rose's probation had been revoked previously, and there were 165 days still suspended. The court imposed all 165 days consecutive to Rose's sentence in the other cases.
AS 11.41.230(c)(1).
In Palmer case 3PA-95-2016, Rose was convicted of driving while license revoked and sentenced to 210 days with 180 days suspended. Rose's probation had been revoked previously, and there were 60 days still suspended. The court imposed all 60 days consecutive to Rose's sentences in the other cases.
In Palmer case 3PA-96-378, Rose was convicted of two counts of fourth-degree assault and sentenced to 360 days with 270 days suspended on each count. The court imposed all 270 days on each count concurrently, and consecutive to Rose's sentences in the other cases.
In Palmer case 3PA-96-390, Rose was convicted of third-degree criminal mischief, reckless endangerment, and driving while intoxicated. Rose was sentenced to 360 days with 270 days suspended on both the criminal mischief and reckless endangerment counts and 360 days with 180 days suspended on the driving while intoxicated count. Although Rose's probation had been revoked previously, none of his suspended time had been imposed. The court imposed the 270 days suspended on the criminal mischief and reckless endangerment counts concurrently, and all 180 days on the driving while intoxicated count consecutive to the 270-day term for criminal mischief and reckless endangerment. All the time in this case was imposed consecutive to Rose's sentences in the other cases.
Former AS 11.46.484.
AS 11.41.250.
Former AS 28.35.030(a).
In Palmer case 3PA-99-2388, Rose was convicted of driving while license revoked and sentenced to 365 days with 320 days suspended. Although Rose's probation had been revoked previously, none of his suspended time had been imposed. The court imposed all 320 days consecutive to Rose's sentences in the other cases. In Palmer case 3PA-01-99, Rose was convicted of driving while intoxicated and sentenced to 365 days with 305 days suspended. The court imposed all 305 days consecutive to Rose's sentences in the other cases.
Thus, the superior court revoked a composite total of 1570 days of suspended time from all these cases.
In addition to the crimes for which he was on probation, Rose had a criminal history that extended back into his teenage years that included several assault convictions and five other driving while intoxicated convictions.
Superior Court Judge Beverly W. Cutler examined the Chaney sentencing factors and stressed the deterrence of Rose and others and the necessity of Rose's isolation to protect society. Judge Cutler concluded that Rose's rehabilitation was " on the bottom of the scale," compared to the other factors. She found that "society deserves protection from Mr. Rose for a significantly long period of time[.]"
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005.
Rose appeals the term imposed when Judge Cutler revoked his probation and imposed the remainder of his suspended imprisonment.
Discussion
Rose first argues that the term imposed in these six cases, when added to the term imposed for felony DUI and driving with a revoked license, results in a term to serve that violates the Neal-Mutschler rule. That rule is a common-law sentencing rule that requires a sentencing judge who imposes consecutive sentences totaling more than the maximum sentence for the defendant's most serious offense to expressly find that the total sentence is necessary to protect the public. Rose's most serious offense was felony DUI, which had a maximum 5-year term. Rose's composite term to serve for the new case and the probation revocations exceeded 5 years.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Judge Cutler explained why she placed little emphasis on Rose's potential rehabilitation, and why it was important to stress the protection of the public. Judge Cutler did not cite the Neal-Mutschler rule explicitly in her sentencing remarks, but an express finding is not always required. In Neal, the supreme court concluded that no express finding was needed because the record made clear that defendant had a lengthy criminal record, had failed repeatedly at substance abuse treatment, and presented "a risk of criminal conduct which would seriously threaten the public safety."
Neal, 628 P.2d at 21.
In Waters v. State and Powell v. State, we upheld composite terms to serve that exceeded the maximum penalty for each defendant's most serious crime because they were mature adults with long histories of serious offenses and ongoing substance abuse problems.
64 P.3d 169, 174-75 (Alaska App. 2003).
88 P.3d 532, 538-39 (Alaska App. 2004).
Rose is a mature adult; he was forty-eight years old when sentenced. In addition to his many charges for driving while under the influence, Rose has a long history of assaultive conduct as reflected in his record of misdemeanor and felony assault convictions. The record shows that Rose presents a continuing "risk of criminal conduct which would seriously threaten the public safety." The record supports Judge Cutler's conclusions that Rose presents a danger to the public safety, that he has poor prospects for rehabilitation, and that it was necessary to isolate him in prison to protect the public.
Rose also argues that Judge Cutler improperly considered Rose's age when considering his prospects for rehabilitation. But viewing her comments as a whole, it is apparent that Judge Cutler viewed rehabilitation as a less important sentencing factor because Rose was well into adulthood, had many opportunities for rehabilitation through his adult life, and yet continued to abuse alcohol and re-offend.
Viewing the sentencing record as a whole, we conclude that Judge Cutler's decision to impose all of Rose's suspended imprisonment in addition to the sentences on the new cases was not clearly mistaken. Conclusion
See McClain, 519 P.2d at 813-14.
The judgment of the superior court is AFFIRMED.
On consideration of the Petition for Rehearing filed on 1/02/07,
IT IS ORDERED:
1. The Petition for Rehearing is GRANTED. However, additional text has been added on page 2.
2. Memorandum Opinion and Judgment, issued on 12/20/06, is WITHDRAWN.
3. Memorandum Opinion and Judgement 5163 is issued on this date in its place, reflecting the changes.
.