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Baker v. State5/7/2003
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
No. 4702
MEMORANDUM OPINION AND JUDGMENT
A jury found Fred Albert Baker, Jr., guilty of felony driving while intoxicated (DWI) and felony refusal to submit to a breath test, both class C felonies. Baker was a third felony offender for purposes of presumptive sentencing, so he faced a 3-year presumptive term for each offense. In addition, because Baker had two prior DWI convictions, he faced a 120-day minimum sentence for each offense. Superior Court Judge Jonathan H. Link sentenced Baker to the 3-year presumptive term for each offense. Judge Link concluded that AS 28.35.032(p)(5), which states that "the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person" required him to impose the entire sentence for breath test refusal consecutively to the DWI sentence. Accordingly, Judge Link sentenced Baker to consecutive 3-year terms, for a composite 6 years of imprisonment.
In our previous decision in this case, Baker v. State, we concluded that AS 28.35.032(p)(5) required only the mandatory minimum sentence for breath test refusal be imposed consecutively. Therefore, we vacated Baker's sentence for breath test refusal and remanded for resentencing.
Facts and Proceedings
On the night of April 5, 1999, motorists reported seeing Baker drive through a red light, over curbs, and in excess of 80 miles per hour. Soldotna Police Officer Joseph Shoemaker saw Baker lose control of his vehicle just before stopping him. Shoemaker concluded Baker was intoxicated and arrested him.
At the police station, Baker yelled and screamed while the officer read the implied consent warning. Baker refused to submit to a breath test.
Baker had three prior felony convictions and an extensive misdemeanor record spanning almost twenty years. Judge Link found Baker was a worst offender. Judge Link stressed the Chaney sentencing criteria of isolation to protect the public and community condemnation and found that rehabilitation was "no longer the focus." Judge Link found that if Baker was not isolated, "he's going to drink and he's going to do completely foolhardy things when he drinks, and someone's going to get injured." He also noted that Baker had never successfully completed any period of probation. Judge Link again imposed the 3-year presumptive term for refusal but imposed 2 years consecutive to the DWI sentence and 1 year concurrent. Thus, Baker received a composite 5-year term.
Baker argues that this term is excessive. However, Baker faced a presumptive term of 3 years for DWI and a minimum consecutive 120 days for refusal. Judge Link classified Baker as a worst offender and concluded that imposing a consecutive 2 years on the refusal count was primarily needed "to protect the public." Thus, Judge Link expressed a good reason to exceed the presumptive and minimum sentence required in Baker's case.
From our review of the record, we conclude that Baker's composite 5-year term to serve is not clearly mistaken.
Baker also argues that his sentence in this case, when combined with the sentence imposed by another judge in an Anchorage case, is excessive. But Baker has appealed his conviction and his sentence in the Anchorage case and the appellant's brief has yet to be filed. To the extent that
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