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Powell v. State4/9/2004
rn to court for a hearing on September 18th. Instead, Powell jumped bail and remained a fugitive for almost eight months.
In April 1998, Powell was arrested at his Anchorage residence. While awaiting trial, he was released to Genesis House (a treatment center). In November 1998, Powell was convicted of the 1997 felony assault, but he was apparently allowed to continue his residence at Genesis House.
Shortly thereafter, in late November 1998, Genesis House released Powell. Sixty-eight days later, in January 1999, Powell committed the offenses in the present case: his twelfth DWI, plus two counts of first-degree assault (for seriously injuring two people) and one count of reckless endangerment.
While the present charges were pending, one of Powell's victims (Roberto Hernandez) sued him in small claims court to recover damages stemming from the collision. At the trial in front of District Court Judge James N. Wanamaker, Powell committed perjury by falsely testifying that he had not been driving the vehicle. (Powell testified that he had been lying asleep in the back seat at the time of the collision.)
The superior court's findings and sentencing decision
As already explained, Powell was a third felony offender convicted of two class A felonies (first-degree assault). The presumptive term for a third felony offender convicted of a class A felony is 15 years' imprisonment, and the maximum term of imprisonment for a class A felony is 20 years. [FN4]
FN4. AS 12.55.125(c).
Superior Court Judge Milton M. Souter presided over Powell's sentencing. He found that the State had proved four aggravating factors under AS 12.55.155(c): (c)(20)--that, at the time of his present offense, Powell was on felony probation (from the 1997 third-degree assault); (c)(6)--that Powell's conduct created a risk of imminent injury to three or more persons; (c)(15)-- that Powell had more than two prior felony convictions; and (c)(8)--that Powell's criminal history included repeated instances of assault. (Powell did not dispute these four aggravators.)
Based on these aggravators, Judge Souter was authorized to impose a sentence of up to 20 years' imprisonment on each of Powell's first-degree assault convictions. [FN5] Because Powell did not prove (or even assert) any mitigating factors, the 15-year presumptive term was, in essence, the minimum sentence that Judge Souter might impose for these two felonies. [FN6]
FN5. See AS 12.55.155(a)(2).
FN6. Id.
The prosecutor asked Judge Souter to impose 20 year maximum sentences for each of Powell's two first-degree assault convictions, to make these two felony sentences consecutive by at least 5 years, and to limit Powell's parole eligibility by requiring him to serve at least 20 years before he became eligible for parole. Powell's attorney conceded that Powell should receive 20 years to serve, but she asked Judge Souter to impose no more than that.
Thus, in practical terms, Judge Souter was confronted with two major decisions: (1) whether to impose a composite sentence that exceeded the 20- year maximum for a single count of Powell's most serious offense (first-degree assault), and (2) whether to restrict Powell's parole eligibility.
Based on Powell's extensive record of criminal offenses and his repeated failures at rehabilitation, Judge Souter found that Powell was a worst offender for sentencing purposes. [FN7] The judge expressed "grave doubt *537 that further rehabilitative efforts are going to bear [fruit]".
FN7. See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975), Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App.1990) (defining the term "worst offender", and explaining that a "worst offender" finding can be based either on the circumstances surrounding the defendant's pr
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