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Foley v. State10/6/2000
[No. 1692 - October 6, 2000]
Appeal from the Superior Court, Third Judicial District, Anchorage, Gregory J. Motyka, Judge.
Jake W. Foley received a sentence of 5 years' imprisonment -the maximum permissible sentence - for the offense of felony driving while intoxicated. On appeal, he contends that this sentence is excessive. In light of Foley's numerous past offenses and his repeated failures at rehabilitation, we conclude that this sentence is not clearly mistaken. We therefore affirm Foley's sentence.
On May 6, 1999, Foley was driving north on the Seward Highway between Anchorage and Girdwood. He drove into the oncoming lane, forcing a southbound driver to steer off the road to avoid a collision. This driver, William Stoskopf, turned around and followed Foley's truck toward Anchorage. For the next twenty minutes, Stoskopf observed Foley driving erratically. At Potter Marsh, where the highway divides as it approaches Anchorage, Foley veered left and began to head into the southbound lanes of travel before he swerved back into the northbound lanes.
Foley took the Rabbit Creek Road exit and turned west toward the Old Seward Highway; Stoskopf continued to follow him. Foley drove through a stop sign, ran over a median strip, and then headed north toward town. He made a wide right turn onto Huffman Boulevard (now heading east). In the process, he almost hit another motorist, who had to take evasive action to avoid collision.
In the meantime, Anchorage police dispatch had alerted its officers to be on the lookout for a suspected drunk driver who was being followed by another motorist. Officer Glenn Daily came upon Foley and Stoskopf as Foley was making the dangerous turn onto Huffman Boulevard. Daily got behind Foley's vehicle, preparing to turn on his overhead lights and make a traffic stop.
But before he could do so, Foley veered left across the oncoming lanes of traffic, cutting off a westbound vehicle. Foley's truck continued to the far side of the road, over the curb and sidewalk, and through the grass at the corner of the Huffman Business Park. Daily now activated his lights. Rather than stopping, Foley accelerated and headed north. However, Foley missed a curve in the road and came to an abrupt halt in the grass.
When Daily approached Foley, he smelled a very strong odor of alcohol and he observed open beer cans in the truck. Daily had a hard time getting Foley's attention. When Foley climbed out of his vehicle, he was so unsteady on his feet that Daily had to support him. A subsequent breath test showed that Foley's blood alcohol level was .33 percent.
Based on this conduct, and because Foley had two prior convictions for driving while intoxicated within the preceding five years, Foley was indicted for felony driving while intoxicated. Felony DWI is a class C felony; the maximum punishment for this crime is 5 years' imprisonment.
Foley was 52 years old at the time of sentencing. He had accumulated thirty criminal convictions during the past quarter century, including four felonies. However, Foley's felonies were relatively old; the most recent, a conviction for second-degree criminal mischief, was from 1985. Foley was discharged from his felony probation in 1987, so he was not subject to presumptive sentencing in this case.
Even though Foley was a first felony offender for presumptive sentencing purposes, he had seven prior convictions for driving while intoxicated: one in 1985, two in 1987, one in 1989, one in 1992, one in 1996, and one in 1998. Based on these prior convictions, Foley conceded that the State could prove aggravating factor (c)(21): that Foley had a
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