Opinion
Court of Appeals No. A-9695.
February 21, 2007.
Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge, Trial Court No. 2NO-05-507 CR.
Kirsten Bey, Assistant Public Defender, Nome, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
John A. Earthman, District Attorney, Nome, and Craig J. Tillery, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Stephen B. Sherman pled no contest to criminally negligent homicide, assault in the third degree, and driving while under the influence. Superior Court Judge Ben J. Esch sentenced Sherman, a first felony offender for purposes of presumptive sentencing, to a composite sentence of 4 years and 20 days to serve with an additional 1 year suspended. Sherman appeals, arguing that the sentence is excessive. We affirm.
AS 11.41.130(a).
AS 11.41.220(a)(1)(B).
AS 28.35.030(a).
On July 26, 2005, Sherman was driving while intoxicated and struck John Kotongan and Glenna Tate. Kotongan died of his injuries. Tate's leg was broken. As a result of this incident, Sherman ultimately entered no contest pleas to criminally negligent homicide, assault in the third degree, and driving while under the influence.
Criminally negligent homicide is a class B felony. As a first felony offender for purposes of presumptive sentencing, Sherman faced a presumptive sentencing range of 1 to 3 years of imprisonment. Assault in the third degree is a class C felony. Sherman faced a presumptive sentencing range of 0 to 2 years of imprisonment. Driving while under the influence is a class A misdemeanor. Sherman had a prior conviction for this offense. He therefore faced a mandatory minimum sentence of 20 days of imprisonment
AS 11.41.130(b).
AS 12.55.125(d)(1).
AS 11.41.220(d).
AS 12.55.125(e)(1).
AS 28.35.030(b).
AS 28.35.030(b)(1)(B).
Judge Esch ultimately sentenced Sherman to a composite sentence of 4 years and 20 days of imprisonment with an additional 1 year of suspended imprisonment. Judge Esch imposed 3 years of imprisonment on the criminally negligent homicide conviction. He imposed a consecutive 2 years with 1 year suspended on the third-degree assault conviction. And he imposed a consecutive 20 days of imprisonment on the DUI conviction. In imposing the sentence, Judge Esch recognized that Sherman was a twenty-one-year-old first felony offender. He found that Sherman was "genuinely and deeply sorry" that he had "caused so much pain to so many other people." He found that the incident had a deep impact on Sherman and found that Sherman would never forget this terrible incident. He also pointed out that Sherman had a good employment history and solid family and community support. He found that Sherman had done his best to aid Kotongan by taking him immediately to the hospital after the collision. And he found that Sherman had cooperated with the authorities. He found that all of these were positive factors that he was taking into account in imposing the sentence.
But Judge Esch also found that it was necessary to impose a substantial period of isolation because of the seriousness of the offense. He emphasized the fact that Sherman had caused Kotongan's death and had seriously injured Tate. He reasoned that it was necessary to impose a substantial sentence to send a message to the community that drinking and driving led to these kinds of results and that it was necessary to impose a substantial sentence in order to deter others. Judge Esch pointed out that Sherman had four prior convictions: a DUI at age seventeen, a minor consuming alcohol at age eighteen, a misdemeanor assault at age nineteen, and a driving without a valid operator's license. He also pointed out that Sherman had previously violated his probation by consuming alcohol. He concluded that Sherman had an extensive prior record of alcohol-related violations and that this prior record had to be an important consideration in imposing a sentence.
Sherman argues that, under the sentencing rule announced in Farmer v. State, Judge Esch was required to expressly justify any sentence of imprisonment exceeding the top of the presumptive range for Sherman's single most serious offense — the 3-year sentence for criminally negligent homicide. In Farmer, we held that when a defendant who is subject to presumptive sentencing is being sentenced for two or more crimes, the presumptive term for the defendant's single most serious crime is "a benchmark that is not to be exceeded without good reason." Sherman contends that Judge Esch violated this rule by failing to give a good reason for imposing a composite sentence that exceeded 3 years to serve.
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
Farmer was decided under Alaska's pre-2005 sentencing law. The parties to this appeal assume that Farmer remains good law even though the legislature substantially revised the presumptive sentencing statutes in March 2005. We need not decide whether that assumption is warranted — because, when Sherman raised this argument in the superior court, Judge Esch gave an explanation of his decision to impose more than 3 years to serve. We conclude that the judge's explanation satisfies the Farmer requirement of "good reason."
Judge Esch pointed out that, at the time of this offense, Sherman "was not legally entitled to possess or consume alcohol, let alone consume alcohol to excess and [then] drive a motor vehicle." Judge Esch also pointed to Sherman's "extensive prior record of alcohol[-]related offenses."
In addition, we note that Sherman was being sentenced for crimes against two separate victims — a circumstance that can provide the "good reason" for a greater sentence under Farmer. In both Farmer and Splain v. State, this Court upheld composite sentences exceeding the defendant's single most severe presumptive term when the defendant was convicted of assaulting more than one person.
924 P.2d 435 (Alaska App. 1996).
Farmer, 746 P.2d at 1302; Splain, 924 P.2d at 437.
Judge Esch concluded that these factors "[constituted] a good reason to exceed [3 years to serve] . . . and to add 1 unsuspended year of incarceration for the assault on Ms. Tate." We agree that these factors satisfy the Farmer test. Sherman's composite sentence is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
The sentencing decision of the superior court is AFFIRMED.