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Powell v. State4/9/2004
esent offense, or on the defendant's criminal history, or both).
Having made this "worst offender" finding, Judge Souter was authorized to impose a composite sentence of up to 20 years' imprisonment (the maximum penalty for a single count of first-degree assault, Powell's most serious offense). [FN8] But under the Neal-Mutschler rule established by our supreme court, Judge Souter could not impose a sentence exceeding 20 years to serve unless he affirmatively found that a longer term of imprisonment was necessary to protect the public. [FN9]
FN8. See id.
FN9. See Neal v. State, 628 P.2d 19, 21 (Alaska 1981): "Our past decisions imply that where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public." (Citing Mills v. State, 592 P.2d 1247, 1248 (Alaska 1979), and Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977)).
Judge Souter did not expressly mention the Neal-Mutschler rule in his sentencing remarks, but he explained why he had small hopes for Powell's rehabilitation, and why he believed that Powell was a particularly dangerous offender:
The Court: I have to look at reality. I have to consider [the] risks to the public here. Because of the long, continued nature of Mr. Powell's alcoholism, his inability to control his conduct when he is drinking--he gets violent when he's drinking, he just cannot control himself when he drinks. He drinks to excess, and then he can't control himself.... [T]his pattern ... [is] deeply ingrained, it's deeply rooted. He's been doing this ... since he was an adolescent, ... [for] over twenty years. We're talking thirteen [sic: twelve] known convictions for driving while intoxicated. We're talking several other alcohol-related convictions[.] ...
And the worst part ... for society is that Mr. Powell is dangerous. He's a real threat to the life and the limb of other people on the highway. It's a wonder that he has not killed ... or seriously maimed somebody [or] crippled them. He hurt two people seriously in this case....
Judge Souter also explained why he had decided to sentence Powell to "straight time" (that is, a sentence consisting solely of time to serve) rather than imposing a partially suspended sentence with attendant probation:
The Court: As much as I would like to be able to decide [this] issue the other way, ... I cannot avoid the conclusion that Mr. Powell is a danger to others and that he has got to be incarcerated for a long time for the sake of other people, the sake of the safety of other people. Now, oftentimes, judges order ... probationary sentences on top of prison-time sentences because they want to encourage rehabilitation and they want to maintain control of [an offender] after ... they get out of jail.[But] I'm not going to do that in this case because ... [the] evidence here is very strong ... that Mr. Powell is not going to rehabilitate [himself]. As soon as he gets out of jail, he's going to start doing it again. That's the weight of the evidence. I hope he can do it, I hope he can change, but the weight of the evidence is that he won't, ... based on [our] past experience with him [in] the justice system[.]
At the same time, Judge Souter rejected the prosecutor's request for a restriction on Powell's parole eligibility:
The Court: I'm going to order ... straight-time sentences, [but] I'm going to let the Parole Board deal with [Mr. Powell]. Because I cannot foresee the future, I'm not going to restrict parole [as the prosecutor has asked]. I'm going to leave [parole] up to the Parole Board--which is tough: they're no pushovers.... I think the Parole Board can do the job here.... I d
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