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Baker v. State4/15/2005
current sentence in the Anchorage case.
In interpreting Judge Motyka's sentencing remarks, we also note that a composite term of 161/2 years of imprisonment would make Baker's sentence comparable to the sentences imposed in serious drunk driving homicide cases. Yet Judge Motyka gave no indication he considered Baker's offenses as comparable in seriousness to vehicular homicide. Consequently, we conclude that it is reasonable to interpret Judge Motyka's remarks as imposing a sentence of 111/2 years to be served concurrently with the Kenai sentence. Because we interpret Judge Motyka's sentencing remarks as imposing Baker's Anchorage sentence concurrent to the Kenai sentence, Judge Motyka had no authority, in the written judgment, to increase Baker's sentence by imposing the sentence consecutively to the Kenai sentence. Such a modification would constitute an illegal increase in Baker's sentence and violate Baker's double jeopardy rights. Therefore, Judge Motyka's oral sentencing remarks in which he imposed the Anchorage sentence concurrent with the Kenai sentence are controlling.
Judge Motyka did not err in finding that Baker's conduct was among the most serious conduct included in the definition of Baker's driving while intoxicated offense.
Baker contends that Judge Motyka erred in finding the aggravating factor that Baker's conduct was among the most serious conduct included in the definition of the offense of driving while intoxicated. In concluding that the State had met the burden of proving this aggravator by clear and convincing evidence, Judge Motyka found that Baker had a high blood alcohol level and that the evidence showed that Baker was also under the influence of cocaine. He pointed out that Baker drove on the sidewalk and could have easily injured or killed any number of people with his actions. Judge Motyka's findings are supported by the record.
Judge Motyka erred in finding that Baker had previously been convicted of a more serious felony On appeal, Baker contends that Judge Motyka erred in finding that Baker had previously been convicted of a more serious felony. Baker did not raise this contention in the trial court, but on appeal the State concedes that Judge Motyka erred in making this finding. We accept the State's concession. Baker's former conviction for weapons misconduct was a class C felony, the same as his current convictions for felony driving while intoxicated and felony refusal to take a breath test.
Judge Motyka erred in concluding that he was required by law to impose Baker's 3-year presumptive sentence for felony refusal to take a breath test consecutively to the sentence for felony driving while intoxicated Baker contends that Judge Motyka erred in concluding that he was required to impose a minimum of two consecutive 3-year presumptive sentences. Judge Motyka made his decision before we issued our decision in Baker v. State where we concluded that AS 28.35.032(p)(5) required only the mandatory minimum sentence for breath test refusal to be imposed consecutively. We therefore conclude that Judge Motyka erred in imposing his sentence under the assumption that he was required to impose a minimum of six years of imprisonment.
We remand the case to Judge Motyka to reconsider his sentence
Because we have found that Judge Motyka erred in finding the aggravating factor that Baker had previously been convicted of a more serious felony and that he erred in concluding that he was required by law to impose a minimum sentence of 6 years of imprisonment, we remand the case to allow Judge Motyka to reconsider his sentence. We have concluded that we should not address Baker's claim that his sentence is excessi
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