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Stotesbury v. State3/13/2002
MEMORANDUM OPINION AND JUDGMENT
No. 4545
MANNHEIMER, Judge, concurring.
Stephen Lee Stotesbury pleaded no contest to felony driving while intoxicated (DWI) and driving while license suspended. At sentencing, the State argued that the court should impose "the maximum allowable under the law." For his part, Stotesbury asked that the court impose a composite sentence no greater than the presumptive 3-year term required for felony driving while intoxicated. (Stotesbury had multiple felony convictions starting in 1978 and had not alleged any mitigating factors.) The superior court found that Stotesbury was a worst offender and imposed the maximum term for each offense: 5 years for DWI and 1 year for driving while license suspended. Later that same day, the court issued a written judgment that specified that the terms were imposed consecutively. Thus, the written judgment provides that Stotesbury received a composite 6-year term to serve.
Stotesbury argues that the written judgment violates double jeopardy. In the alternative, Stotesbury argues that the judge's findings at sentencing do not support a composite term in excess of the 5-year maximum sentence for DWI. Because of these purported flaws, Stotesbury argues that we must direct the superior court to impose concurrent sentences.
Shortly after midnight on May 3, 2000, the Anchorage Police contacted Stotesbury near the intersection of East 42nd Avenue and Dale Street. Stotesbury's car was blocked by two security guard vehicles. Stotesbury complained that the security guards were harassing him. Anchorage Police Officer Doyle Warren smelled alcohol about Stotesbury and noticed that his eyes were glassy and bloodshot. Stotesbury admitted that he had been drinking, driving, and had not been wearing his eyeglasses. Officer Warren arrested Stotesbury, and Stotesbury's breath test showed that his breath alcohol was .292%. Officer Warren also discovered that Stotesbury's license was suspended.
Stotesbury had multiple felony convictions in Oregon and multiple driving offenses including driving while intoxicated. The State charged Stotesbury with felony driving while intoxicated and driving while license suspended.
Stotesbury faced a 3-year presumptive term because he had multiple felony convictions for burglary and theft in Oregon. Superior Court Judge pro tem Sigurd E. Murphy found that the State had proven several statutory aggravating factors under AS 12.55.155(c): (c)(7) (Stotesbury had prior felony convictions of a more serious class than felony driving while intoxicated); (c)(15) (Stotesbury had three or more prior felony convictions); and (c)(21) (Stotesbury had a history of repeated instances of conduct violative of criminal laws similar in nature to Stotesbury's present offense). Judge Murphy found that the State had proven (c)(21) with evidence of six prior DWI convictions.
Judge Murphy found that Stotesbury had "very little" chance of rehabilitation. He also stated that isolation was a primary sentencing factor because Stotesbury was a worst offender, had a 25-year criminal history, and represented a "very real danger" to the community whenever released.
The Double Jeopardy Claim
Stotesbury points out that double jeopardy is violated if a court increases a defendant's sentence after it has been meaningfully imposed. Under Shagloak v. State, a sentence is meaningfully imposed when it is "not subject to change under our Criminal Rules." In Shagloak, the court held that a sentence was not subject to change under the criminal rules unless there existed "an objectively ascertainable mistake - a mistake which can be determined
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