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Powell v. State4/9/2004
e both exceptionally dangerous and seemingly incorrigible. Powell's 15-year presumptive term is based on his prior felony convictions, but Powell's dangerousness is more clearly demonstrated by his almost two dozen convictions for driving offenses. Chief among these are his eleven prior convictions for driving while intoxicated. But Powell also has been convicted eight times for driving with a suspended or revoked license, once for reckless driving, and once for leaving the scene of an accident.
Moreover, Powell is distinguished from the typical drunk driving offender because his criminal history also demonstrates a propensity for violence. He has been convicted of *539 one felony assault and several other misdemeanor assaults (as well as resisting arrest).
Finally, the record demonstrates Powell's contempt for authority and his disdain for any efforts to foster his rehabilitation. Again and again, Powell has jumped bail when facing criminal charges. He also committed perjury in an attempt to avoid liability when he was sued for damages stemming from his current offenses. Dozens of criminal convictions and jail sentences have failed to deter Powell from further criminal activity--most notably, his continuing string of drunk driving offenses. And, perhaps most important, Powell has repeatedly absconded from alcohol treatment programs.
As was true in Neal, the sentencing record in Powell's case shows that he "presents a [substantial] threat of continued criminal conduct which would seriously threaten the public safety". That record fully supports the conclusions that Powell poses a great danger to the public safety, that Powell has poor prospects for rehabilitation, and that, unless and until Powell is rehabilitated, the only way to protect the public from him is to keep him isolated in prison.
We acknowledge that Powell's 26-year sentence exceeds any that we have affirmed for defendants convicted of vehicular homicide. [FN10] However, as we explained above, Powell is a third felony offender who faced a presumptive term of 15 years. (Indeed, because Powell did not propose any mitigating factors, this 15-year presumptive term was essentially the mandated minimum term.)
FN10. See Pusich v. State, 907 P.2d 29 (Alaska App.1995) (upholding a composite sentence of 18 years to serve--25 years with 7 years suspended--for a consolidated count of manslaughter charging three deaths, and one count of first-degree assault); Foxglove v. State, 929 P.2d 669 (Alaska App.1997) (upholding a composite sentence of 19 years to serve for one count of manslaughter and four counts of first-degree assault, plus another first-degree assault arising from a separate
incident).
This 15-year presumptive term represents the legislature's judgement as to the prison term that should be imposed on a typical third felony offender who commits a typical act of first-degree assault. [FN11] But Powell is not a typical third felony offender.
FN11. See Mullin v. State, 886 P.2d 1323, 1328 (Alaska App.1994); Juneby v. State, 641 P.2d 823, 833, 838 (Alaska App.1982).
First, Powell had three prior felonies, not just two. Second, Powell was being sentenced for two first-degree assaults, not just one. Third, Powell's criminal history includes eleven prior convictions for driving while intoxicated, as well as several convictions for misdemeanor assault. Fourth, Powell has engaged in repeated violations of bail and probation conditions, often accompanied by flight from Alaska, and he continues to drive even though, because of past offenses, his license has been revoked for more than the next hundred years. And fifth, Powell has repeatedly refused to engage in treatment for his alcoholism.
When we consider these aspects of Powell's case in combination, w
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