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Baker v. State4/15/2005
No. 1980
MANNHEIMER, Judge, concurring.
A jury convicted Fred A. Baker of felony driving while intoxicated , felony refusal to take a breath test, driving with license revoked, and criminal mischief in the third degree. Superior Court Judge Gregory J. Moytka sentenced Baker to 11 1/2 years' imprisonment. In his written judgment, Judge Motyka made this sentence consecutive to Baker's former sentence for felony driving while intoxicated and felony refusal to take a breath test, a sentence of 5 years of imprisonment, resulting in a composite sentence of 161/2 years of imprisonment.
On appeal, Baker argues that Judge Motyka erred in denying his motion to dismiss which was based on Criminal Rule 45, the Speedy Trial Rule. We conclude that Judge Motyka did not err in denying Baker's motion to dismiss.
Baker raises several arguments about his sentence. In his most important argument, Baker argues that Judge Motyka did not, in his oral sentencing remarks, state that he was imposing the sentence consecutively to Baker's former sentence. He argues that we should hold that Judge Motyka therefore imposed the sentence to be served concurrently with his former sentence, resulting in a composite sentence of 111/2 years of imprisonment. We agree with Baker for the reasons explained in this opinion.
Baker also argues that Judge Motyka made several errors in imposing his sentence and that his sentence is excessive. We conclude that Judge Motyka made errors in imposing the sentence. We therefore remand the case to allow Judge Motyka to reconsider the sentence.
Factual Background
On May 4, 1999, Anchorage Police Officer Richard Steiding observed Fred A. Baker Driving erratically. Baker stopped abruptly at 13th Avenue, proceeded through the parking lot of the Carrs supermarket at the speed of 15-20 miles per hour, cut across the parking lot, and drove down the sidewalk, traveling eastbound on 13th Avenue. Officer Steiding pursued Baker and located the vehicle parked in the Carrs parking lot, parked in front of a "No Parking" sign. Anchorage Police Officer Joel Breiner arrived to assist and subsequently arrested Baker. Officer Breiner transported Baker to a police substation for processing.
Baker twice refused to take a breath test. Baker asked for an independent test and was transported to Alaska Regional Hospital, where he insisted on having only a urine test. Baker's urine tested positive for alcohol, cocaine and marijuana. While he was being taken to the magistrate for a bail hearing, Baker began growling and biting the backseat of the officer's patrol car. The officers restrained Baker, but he remained combative despite the restraints.
Baker was indicted on one count each of felony driving while intoxicated and felony refusal to submit to a chemical test. He was also charged with driving while license revoked, and third-degree criminal mischief. A jury convicted Baker of all the charges.Judge Motyka did not err in denying Baker's Criminal Rule 45 motion to dismiss Baker's motion to dismiss turns on the events of October 11 and 12, 1999.
On October 11, 1999, Baker appeared at a trial call before District Court Judge Natalie K. Finn. Baker's counsel told the court that she would be unavailable for trial October 13 through October 26. The prosecutor informed the court that the State had witnesses who would be unavailable from October 6 through 18 and October 21 through December 5. Judge Finn concluded that the parties would be unavailable until December 6, and -- 3 -- 1980 started to set a trial call on that date. But Baker interjected and stated that he did not agree to a continuance. He st
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