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Beaty v. State4/1/1998
." These three statutes provided enhanced punishment for defendants whose criminal act was directed at uniformed or otherwise clearly identified police officers, fire fighters, correctional officers, and emergency service providers (EMT's, paramedics, ambulance attendants, etc.) engaged in the performance of their duties. Beaty's prior DWI offenses were not "directed" at anyone, much less the officers and emergency providers listed in AS 12.55.155(e)(3).
Beaty further contends that his third and fourth prior DWI convictions cannot be used to establish aggravator (c)(21) because, under AS 28.35.030(n)(1)(C), those prior convictions are taken into account when determining the mandatory minimum sentence (here, 360 days in jail) for Beaty's offense. Beaty asserts that a minimum sentence is the "functional equivalent" of a presumptive term, and thus, because his third and fourth prior DWI offenses were used to calculate the applicable mandatory minimum term under AS 28.35.030(n)(1), the State could not rely upon those same prior offenses to prove aggravating factor (c)(21).
Beaty provides no legal authority for this argument other than former AS 12.55.155(e). As we have already explained, that statute does not apply to Beaty's case. Moreover, as our prior cases have repeatedly explained, a mandatory minimum term is not the "functional equivalent" of a presumptive term. A mandatory minimum term is the amount of incarceration "appropriate for the offender whose conduct is the least serious contemplated by the definition of the offense". Middleton v. Anchorage, 673 P.2d 283, 284 (Alaska App. 1983). A presumptive term, on the other hand, is the amount of incarceration deemed appropriate for "the typical offender." Id. See Brown v. State, 926 P.2d 1195, 1198 (Alaska App. 1996); Martin v. State, 664 P.2d 612, 619-20 (Alaska App. 1983) (rejecting an equal protection claim based on disparate treatment of offenders subject to minimum and presumptive sentencing). Therefore, even though Beaty's mandatory minimum term was increased on account of his third and fourth prior DWI offenses, those prior offenses remained a valid basis for the superior court to find aggravating factor (c)(21).
For these reasons, Judge Sanders correctly ruled that Beaty's third and fourth DWI convictions could be used as a basis for proving aggravator (c)(21), and we conclude that Judge Sanders was not clearly erroneous in finding this aggravator. Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).
Beaty next contends that his sentence is excessive. However, under AS 12.55.120(a) and Appellate Rule 215(a), we have no jurisdiction to consider whether a felony sentence which does not exceed two years of unsuspended incarceration is excessive. Therefore, under Appellate Rule 215(k), we refer this case to the supreme court for discretionary review of Beaty's contention that his sentence is excessive.
AFFIRMED in part, and referred to the supreme court under Appellate Rule 215(k).
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