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Castro v. State3/24/2004
ommitted while her driver's license was suspended from her second DWI. In addition, Castro had numerous other traffic citations and offenses prior to her third DWI conviction, including improper lane change, speeding (19 miles per hour over the speed limit), and operating a vehicle without a driver's license (twice).
Further, Castro's file reveals that she has had an alcohol problem since she was a teenager, and that (in the words of her probation officer) she continues to have "significant alcohol abuse issues". When Castro was arrested for the felony DWI in this case, her blood alcohol level was .245 percent. And during her ensuing felony probation, she continued to drink and she failed to complete alcohol treatment programs.
Based on his review of the file, Judge Wolverton concluded that Castro "presented a danger to the community" because she continued to drink while on probation and because "three [prior] times, she's been drinking and then chosen to drive". Judge Wolverton declared that he did not trust Castro not to drink, nor did he trust her not to drive after she had been drinking: "Ms. Castro's track record is that she's done that three times in a relatively short period of time."
Judge Wolverton further concluded that, given the fact that Castro had declared that she wanted no further probation supervision, Castro's sentence had to emphasize the sentencing goals of community condemnation, reaffirmation of societal norms, and the need to isolate an offender who, in the past, had repeatedly chosen not to abide by the conditions of her probation. The judge then declared, " nd for that reason, I'll exercise my [sentencing] discretion ... and impose the balance of [Castro's] sentence, flat time."
We have recognized that "when a history of probation violations establishes a person's poor prospects for rehabilitation, that fact may be deemed an extraordinary circumstance" for purposes of the Austin sentencing rule - the rule that, in the absence of statutory aggravating factors or extraordinary circumstances, a first felony offender should receive a sentence more favorable than the presumptive term specified for a second felony offender convicted of the same crime. (This rule is now codified in AS 12.55.125(k)(2).)
Here, Castro's sentence is at the cusp of the Austin rule: her 2-year prison term equals the presumptive term for a second felony offender. But Judge Wolverton could reasonably conclude that Castro poses a significant danger to the public when she drinks. He could also reasonably conclude - based on Castro's continued drinking while on probation, her failure to pursue alcohol treatment, her repeated decisions to abscond from probation supervision for months at a time, and her current rejection of further probation - that Castro is unwilling to recognize or deal with her alcohol problem, and that she will therefore continue to present a significant danger to the public for the foreseeable future. Thus, Judge Wolverton could reasonably choose to emphasize the sentencing goals of community condemnation and isolation when he sentenced Castro.
Given the totality of circumstances in Castro's case - Castro's background and criminal history, the facts of the present offense (the felony DWI), and Castro's conduct while on felony probation - Judge Wolverton could reasonably conclude that a 2-year prison term was consistent with the Chaney sentencing criteria. We therefore hold that this sentence is not clearly mistaken.
The sentencing decision of the superior court is AFFIRMED.
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