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Baker v. State10/3/2001
No. 4464
MEMORANDUM OPINION AND JUDGMENT
Darrell J. Baker was convicted of felony driving while intoxicated and driving while his license was revoked. Superior Court Judge pro tem Gregory J. Motyka sentenced Baker to serve sixty months with thirty-six months suspended for felony driving while intoxicated. He sentenced Baker to 360 days with 270 days suspended for driving while license revoked. He imposed this sentence consecutive to the felony driving while intoxicated sentence. Judge Motyka imposed fines totaling $10,000 with $4,000 suspended. He also revoked Baker's driver's license for five years and ninety days. In addition, Judge Motyka ordered Baker, as a special condition of probation, to complete all alcohol rehabilitation programs ordered by his probation officer, which could include a residential program of up to twelve months. Baker appeals, arguing that the sentence is excessive. We affirm.
On June 10, 2000, shortly before midnight, Anchorage Police Department Officer Bucher saw an orange truck coming eastbound on East 15th Avenue at a high rate of speed. The truck ran a red light and made a left turn crossing four lanes of traffic into the far right lane. Officer Bucher activated his emergency lights and caught up to the truck and noted its license number. The driver fled from Officer Bucher at a high rate of speed, ran a stop sign, and made a right turn with squealing tires . Officer Bucher discontinued the chase.
A few minutes later, several Anchorage Police Department cars were able to locate and stop the orange truck. Officer Bucher arrived at the scene and identified Baker as the person who had been driving the truck when it fled from him. The officers took Baker to the police station where his breath alcohol content was .183. Baker was belligerent throughout the arrest process.
Felony driving while intoxicated is a class C felony. The maximum sentence for a class C felony is five years of imprisonment. There is a presumptive sentence of two years for a second felony offender and three years for a third felony offender. Because Baker had four prior driving while intoxicated (DWI) convictions within the ten years preceding his arrest, Judge Motyka was obligated to impose a fine of not less than $5,000 and a jail term of not less than 360 days. Because Baker was a first felony offender for purposes of presumptive sentencing, Judge Motyka was required to impose a sentence more favorable than two years of imprisonment on the felony DWI charge unless he found the case exceptional. Driving with a revoked license is a class A misdemeanor with a maximum sentence of one year of imprisonment.
The state proposed and Judge Motyka found an aggravating factor applied to Baker's felony DWI conviction: that Baker had engaged in repeated instances of similar criminal conduct. Baker has prior DWI convictions from 1985, 1990, 1992, 1997, and 1998. Judge Motyka did not consider the 1997 and 1998 convictions because those convictions were necessary elements of his present offense. Baker contends that Judge Motyka erred in finding the aggravating factor. He points out that the 1985, 1990, and 1992 convictions were also used by the court to calculate the mandatory minimum sentence. But there is no impediment to the court considering prior DWI convictions to calculate a mandatory minimum sentence and to also consider these prior convictions for determining an aggravating factor. Alaska Statute 12.55.155(e) only states that: "If a factor in aggravation is a necessary element of the present offense . . . that factor may not be used to aggravate the presumptive term." Judge Motyka did not use the two more recent felony convictions, which
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