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Mund v. State2/3/1999
nd actually received for all six of his current offenses.
Given the serious nature of Mund's current offenses and his lengthy criminal record, we conclude that Mund's composite sentence is not clearly mistaken.
Mund next asserts that Judge Sanders should have considered the alleged fact that Mund suffers from attention-deficit disorder (commonly referred to as "ADD"). However, the only evidence Mund presented of this alleged disorder is contained in letters written to the court by Mund's relatives. At the sentencing hearing, Mund's attorney suggested to Judge Sanders that he should order the Department of Corrections to test Mund for ADD - a request somewhat at odds with Mund's current assertion on appeal that he presented definite proof of his ADD at sentencing. Moreover, at the sentencing hearing, Mund adamantly denied that he had any mental problems, and he rejected Judge Sanders's offer to order a psychological evaluation.
Because the evidence that Mund suffered from attention-deficit disorder was weak at best, and because Mund's conduct and criminal record amply justified his 5½-year sentence, Judge Sanders did not abuse his discretion when he failed to adjust Mund's sentence on account of this alleged disorder.
Mund's final point on appeal is that, in his sentencing remarks and again in the written judgment, Judge Sanders erroneously described Mund's sentences for driving while intoxicated and refusing a breath test as "presumptive". Driving while intoxicated and refusing to submit to a breath test are misdemeanors, and presumptive sentencing does not apply to them. Thus, Mund is right in asserting that these two sentences can not be presumptive.
Both of these misdemeanors carry mandatory minimum terms, so it is possible that Judge Sanders simply misspoke when he referred to these two sentences as "presumptive". However, the two challenged sentences total more than the composite mandatory minimum term required by law. Under these circumstances, we believe it best to vacate the two challenged sentences and remand this case to Judge Sanders for resentencing on these two counts.
In Conclusion: We AFFIRM Mund's six convictions, and we conclude that Mund's composite sentence of 5 years, 205 days is not clearly mistaken. However, for the reasons described in the preceding two paragraphs, we VACATE Mund's sentences for driving while intoxicated and refusing a breath test, and we remand this case to the superior court for resentencing on these two counts.
We do not retain jurisdiction of this case.
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