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ISON v. STATE6/13/1997
Kyle C. Ison appeals the 2-year presumptive term he received for felony driving while intoxicated, AS 28.35.030(a) and 030(n); AS 12.55.125(e)(1). He questions the superior court's rulings on two of the mitigating factors listed in AS 12.55.155(d). Specifically, Ison asks us to reverse the superior court's rejection of mitigator (d)(9), to clarify the meaning of mitigating factor (d)(13), and to address the relationship between mitigators (d)(9) and (d)(13).
As a preliminary matter, the State questions Ison's right to appeal. The State relies on Alaska Appellate Rule 215(a), which declares that felony defendants can file a sentence appeal only if they received more than 2 years to serve. See also AS 12.55.120(a). Because Ison received exactly 2 years to serve, and not more, the State argues that Ison can not appeal his sentence.
However, Ison's appeal is not a "sentence appeal" governed by Appellate Rule 215(a) and AS 12.55.120(a). A sentence appeal is premised on the assumption that the defendant's sentence was lawfully imposed. In a sentence appeal, the defendant asserts that a lawful sentence is excessive — i.e., that it constitutes an abuse of sentencing discretion. Ison, on the other hand, asserts that the sentencing court committed legal error during the sentencing process — that the court erred in construing and applying mitigating factors. As we recently explained in Rozkydal v. State, 938 P.2d 1091, 1093-94 (Alaska App. 1997), such assertions of error are appealable regardless of the length of the defendant's sentence. We therefore turn to Ison's arguments.
At his sentencing, Ison proposed the mitigating factor codified in AS 12.55.155(d)(9) — that "the conduct constituting offense was among the least serious conduct included in the definition of the offense". The superior court rejected this mitigator. We must affirm the sentencing court's ruling unless Ison shows that it is clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App. 1991).
Ison's argument on this point consists of one paragraph in which he views the evidence in the light most favorable to himself. The State's evidence suggested that Ison's offense was more serious than Ison construes it. Moreover, in his description of his conduct, Ison fails to mention that he was driving with a suspended license and that he physically resisted the officers when they arrested him. We uphold the superior court's ruling that Ison failed to prove mitigator (d)(9).
Ison next argues that, even if his offense was not among the least serious, the superior court still should have found mitigator (d)(13). Under AS 12.55.155(d)(13), a felony offense is mitigated for purposes of presumptive sentencing if
the facts surrounding the commission of the [present] offense and any previous offenses by the defendant establish that the harm caused by the defendant's conduct is consistently minor and inconsistent with the imposition of a substantial period of imprisonment.
Ison argues that the superior court should have found this mitigator because Ison has never seriously hurt any person or any property.
At age 27, Ison already has a lengthy criminal history. He has three convictions for driving while intoxicated. He was convicted of felony criminal mischief in 1990 for causing damage to another's property. Ison served 18 months in prison for this prior felony. In addition, Ison has ten convictions for driving without a license, as well as convictions for speeding, reckless driving, misdemeanor assault, disorderly conduct, failure to appear, and contempt of court.
Ison asserts, however, that he has never caused substantial injury to
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