 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Foley v. State10/6/2000
criminal history of repeated instances of criminal conduct similar in nature to his present offense. Because of this aggravating factor, the superior court was authorized to consider sentences exceeding the 2-year presumptive term that would apply to a second felony offender convicted of the same crime.
In addition to his seven prior DWI convictions, Foley had been convicted five times of driving while his license was suspended, as well as failure to identify himself and to render assistance at the scene of an accident ("hit and run").
At sentencing, Superior Court Judge pro tempore Gregory J. Motyka declared that he would consider Foley's offense to be significantly aggravated even if Foley were a first-time DWI offender. Judge Motyka pointed out that Foley's blood alcohol level was extremely high, that Foley was driving with a revoked driver's license, that he went down the highway the wrong way, that he almost struck another motorist (Stoskopf), and that he was "totally oblivious to what going on".
Based on the fact that Foley had repeatedly driven while intoxicated and had repeatedly driven while his license was suspended or revoked, Judge Motyka concluded that "[Foley's] rehabilitation is not ... feasible. ... t's just not going to happen." The judge declared that, "at this point, ... isolation is the [primary] Chaney criterion. ... hat's the one that protects the public - and saves [Foley's] life, perhaps."
After discussing the various Chaney sentencing criteria, and after reviewing this court's decision in White v. State , Judge Motyka concluded, based on "Mr. Foley's record and driving in this case", that Foley was a "worst offender" for sentencing purposes. The judge recognized that, even though he found Foley to be a worst offender, he was not obliged to sentence Foley to the 5-year maximum term. However, Judge Motyka concluded that a 5-year sentence was necessary in Foley's case:
The Court: [I am] left with the feeling that, sooner or later, Mr. Foley is going to get out, and Mr. Foley is going to drink again, and Mr. Foley is going to drive again. He has consistently driven while his license is revoked. I can't stop him, and I don't believe one two years of suspended time is going to make a difference. For that reason, defendant is ordered into the care and custody of the Commissioner of the Department of Corrections for a period of 5 years.
Under Alaska law, a sentencing judge must find that a defendant is a "worst offender" before the judge is authorized to sentence the defendant to the maximum term of imprisonment. A "worst offender" finding can be based either on the circumstances surrounding the defendant's present offense, or on the defendant's criminal history, or both. Here, Judge Motyka found that Foley should be deemed a worst offender for both reasons.
In his brief to this court, Foley argues that Judge Motyka should not have classified Foley as a worst offender. Relying on Tate v. State , Foley argues that the judge "placed inordinate weight" on Foley's record of prior convictions.
In Tate, this court reduced the sentence of a first felony offender convicted of second-degree (non-dwelling) burglary. We concluded that the sentencing judge had placed inordinate weight on the fact that Tate had committed a string of theft-related misdemeanors during the two years preceding his felony offense:
Tate's misdemeanor record, given its continuous nature and the short period of time between his most recent [prior] offense and the instant [burglary], clearly warranted a [significant] sentence [of imprisonment]. Nevertheless, Leuch [v. State, 633 P.2d 1006, 1014 n.22 (Ala
Page 1 2 3 4 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|