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Beaty v. State4/1/1998
MEMORANDUM AND JUDGMENT
Douglas W. Beaty was convicted, based upon his plea, of driving while intoxicated. AS 28.35.030. Because Beaty had been convicted two or more times within the five years preceding the date of his present offense, he was subject to sentencing as a class C felony offender. A defendant convicted of a class C felony is subject to a maximum sentence of five years of imprisonment. There is a presumptive sentence of two years of imprisonment for a second felony offender; three years for a third felony offender. AS 12.55.125. Beaty was a first felony offender for purposes of presumptive sentencing.
In Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981), we held that " ormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender." We stated that a sentencing Judge should deviate from this rule only in exceptional cases. In order to find that a case is exceptional, the court must find either significant aggravating factors, as specified in AS 12.55.155(c), or extraordinary circumstances that would justify referral to the three-Judge panel under AS 12.55.165-175. Lewis v. State, 845 P.2d 447, 448 (Alaska App. 1993); Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983). A defendant is entitled to advance notice that the state or court is considering the imposition of a sentence exceeding the Austin limit and notice of the proposed aggravating factors or extraordinary circumstances which might justify the deviation from the Austin rule. Lewis, 845 P.2d at 448; Wylie v. State, 797 P.2d 651, 662 (Alaska App. 1990); see also Collins v. State, 816 P.2d 1383, 1384-85 (Alaska App. 1991). In order to deviate from the Austin rule, the court must find the aggravating factors or extraordinary circumstances exist by clear and convincing evidence. Lewis, 845 P.2d at 449 n.1; Buoy v. State, 818 P.2d 1165 (Alaska App. 1991).
Prior to sentencing the state gave notice under Wylie that it intended to establish an aggravating factor, "that the defendant has a criminal history of repeated instances of conduct violative of criminal laws, whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced under this section." AS 12.55.155(c)(21). At sentencing the state established that Beaty had four prior convictions for driving while intoxicated: two in 1991, one in 1990, and one in 1993. Beaty did not dispute the existence of these prior convictions but argued that the court could not consider these prior convictions to establish the aggravating factor. Beaty relied on former AS 12.55.155(e), which provided:
If a factor in aggravation is a necessary element of the present offense, or requires the imposition of a presumptive term under AS 12.55.125(c)(2), (d)(3), or (e)(3), that factor may not be used to aggravate the presumptive term.
This statute, which prohibited the court from relying on the same factor twice, applied in two situations. Neither situation has any application to Beaty's case.
The first situation covered by former AS 12.55.155(e) was if the proposed aggravating factor was a "necessary element of the [defendant's] present offense." Beaty's offense of felony DWI required proof of two prior DWI convictions within the previous five years. AS 28.35.030(n). However, Beaty had four prior convictions for this offense. Beaty's third and fourth prior convictions remained available as proof of aggravating factor (c)(21).
The second situation covered by AS 12.55.155(e) was if the proposed aggravating factor was the basis for "imposition of a presumptive term under AS 12.55.125(c)(2), (d)(3), or (e)(3)
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