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Brockway v. State12/21/2001
No. 1777
David Brockway pleaded no contest to third-degree weapons misconduct (felon in possession of a concealable firearm). Because Brockway had two felony convictions from 1996, he faced a 2-year presumptive term for his current offense.
In anticipation of his sentencing, Brockway asked the superior court to disregard the 1996 convictions and treat him as a first felony offender. Brockway claimed that the superior court had failed to fully comply with Alaska Criminal Rule 11(c) when the court accepted Brockway's pleas to the 1996 charges, and thus his prior convictions were flawed.
Superior Court Judge Eric Smith expressed doubt whether Brockway was entitled to collaterally attack his 1996 convictions in the current sentencing proceedings, but he nevertheless addressed the merits of Brockway's arguments and rejected them.
In this appeal, Brockway again claims that his 1996 convictions should not be counted for sentencing purposes; he renews his argument that his 1996 pleas were invalid. We conclude, however, that Brockway had no right to collaterally attack his 1996 convictions during the sentencing proceedings for his current conviction. For this reason, Judge Smith properly sentenced Brockway as a second felony offender, subject to a 2-year presumptive term.
Brockway also claims that the superior court erred by rejecting his proposed statutory mitigating factor. We affirm the superior court because the court's findings were not clearly erroneous.
Finally, Brockway claims his composite sentence was excessive. But the superior court imposed a term to serve that was less than the agreed maximum term under the plea agreement. Therefore, we have no jurisdiction to consider this claim. Accordingly, we affirm Brockway's conviction and refer the case to the supreme court for consideration of Brockway's excessive sentence claim.
Facts and Proceedings
On August 29, 1999, Brockway drove an all-terrain vehicle on the Parks Highway in Wasilla. Officer Robert Dixon contacted Brockway when Brockway stopped at a restaurant. Officer Dixon observed that Brockway appeared to be intoxicated and had a large bulge under his coat that turned out to be a loaded .44 magnum revolver in a shoulder holster. Brockway also had a can of beer in one of his coat pockets. After his arrest, Brockway provided a breath sample with a .234% breath alcohol level. The State charged Brockway with third-degree and fourth-degree misconduct involving weapons, felony driving while intoxicated, and driving while license revoked.
Brockway was subject to presumptive sentencing because, in June of 1996, he was convicted of two counts of third-degree assault after he pleaded no contest to those charges. In that case, Brockway assaulted two individuals with his motor vehicle by placing them in fear of imminent serious physical injury. The charges arose from an event early on New Years Day in 1996 when Brockway drove his vehicle into the yard of one of the victims and eventually high-centered the vehicle on a flag pole. Brockway's breath alcohol content was .225%. Brockway was represented by an attorney and entered his no contest plea before Superior Court Judge Milton M. Souter. Brockway was on probation in that case (and the State filed a petition to revoke his probation) when he was charged with the August 1999 criminal case.
As we noted above, the parties reached a plea agreement that called for Brockway to plead no contest to third-degree misconduct involving weapons and a new charge of reckless driving and to admit the probation violation. All the other charges would be dismissed, and the parties agreed to
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