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Baker v. State10/3/2001
were a necessary element of Baker's present offense, in finding the aggravating factor. And the three other prior DWIs were sufficient to support his finding that the state established the aggravating factor.
Baker argues his sentence is excessive. He notes that his sentence exceeds the two-year presumptive term for a second felony offender convicted of a class C felony. He points to the fact that, in addition to his sentence of time to serve, he also faces potential residential treatment of up to twelve months.
The state contends that we have no jurisdiction to decide this appeal. The state points to AS 12.55.120(a), which provides that only a "sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding two years of unsuspended incarceration for a felony offense . . . may be appealed to the court of appeals by the defendant on the ground the sentence is excessive . . . ." But Baker's aggregate sentence exceeds two years when we consider his ninety-day consecutive sentence on his driving with a suspended license conviction. Admittedly, this was imposed on a misdemeanor conviction and the statute says that, to be reviewable, the sentence must exceed "two years of unsuspended incarceration for a felony offense." But if Baker had received the additional ninety days for a felony, his sentence would clearly be reviewable. We see no reason to not consider Baker's sentence just because part of the aggregate sentence was imposed on a misdemeanor. Baker's major sentence was on a felony, and, when combined with his sentence for driving with a suspended license, we believe that his aggregate term exceeded "two years of unsuspended incarceration for a felony offense."
We now turn to reviewing Baker's sentence. In imposing sentence, Judge Motyka considered the circumstances of Baker's present offense. He noted that Baker was driving on a suspended license and was driving recklessly when he was first encountered by the police. When Officer Bucher activated his red lights and siren to stop Baker, Baker fled from the officer at a high rate of speed, driving recklessly. The officer had to discontinue the pursuit. Judge Motyka considered Baker's extensive record of prior DWI offenses. He stated that Baker's rehabilitation potential "is somewhat guarded at best." He found that Baker was a worst offender for felony driving while intoxicated. We conclude that Judge Motyka's findings are supported by the record and support the sentence imposed.
AFFIRMED.
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