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Foley v. State10/6/2000
ska 1981),] teaches that the trial court should not impose substantial periods of imprisonment on someone who has not [previously] been subjected to lesser periods of imprisonment. Tate, 711 P.2d at 540.
This passage lends some weight to Foley's argument. But immediately after the quoted passage, the Tate court added a clarifying footnote:
In State v. Graybill, 695 P.2d 725 (Alaska 1985), the supreme court affirmed a composite [sentence of] seven years with five and one-half years suspended imposed on a misdemeanant convicted of twenty fish and game violations. Id. at 731. The defendant had a twenty-year record of fish and game violations ... and was on probation at the time he committed the twenty offenses for which he was sentenced. Graybill's relative maturity, the length of his criminal record[,] and his established immunity from rehabilitation serve to distinguish Graybill's case from Tate's. Tate, 711 P.2d at 540 n.2 (emphasis added).
Foley is likewise a mature defendant with a lengthy record of convictions and seeming "immunity from rehabilitation". But unlike the defendant in Graybill, whose record consisted of fish and game violations, Foley's record is replete with convictions for driving while intoxicated - an offense which, as the facts of this case illustrate, poses a significant danger to the life and safety of others.
We recognize that Foley's past DWI convictions have, to some extent, already been used to increase his sentence: he stands convicted of a class C felony (rather than a class A misdemeanor) because of his two other DWIs within the preceding five years. But Foley's record consists of more than the two prior DWIs required for a felony charge. As explained above, Foley has seven prior convictions for this crime, as well as another five convictions for driving while his license was suspended, and another conviction for hit and run. Despite the fact that all of these convictions were misdemeanor convictions, we conclude that Judge Motyka could properly place substantial weight on Foley's record.
Foley points out that his 5-year sentence substantially exceeds the 360-day minimum sentence that applies to his offense under AS 28.35.030(n)(1)(C). But a mandatory minimum sentence represents the legislature's judgment concerning " minimum sentence ... appropriate for offender whose conduct is the least serious contemplated by the definition of the offense". Judge Motyka found that Foley was among the worst offenders, and the record supports that finding.
Foley also points out that his sentence exceeds the 3-year presumptive term that would apply if he were a third felony offender. But this presumptive term "represents the legislature's judgment as to the appropriate sentence for a typical third felony offender who commits a typical act [within the definition of the offense]." Judge Motyka found that Foley's offense was aggravated, even without consideration of his prior convictions.
Moreover, Judge Motyka found, based on Foley's extensive record of DWIs and related driving offenses, that Foley could neither be rehabilitated nor deterred. This finding is supported by the record. Given this finding, Judge Motyka could properly conclude that Foley's lengthy series of driving offenses, although misdemeanors, distinguished Foley "from the typical [third felony] offender ... envisioned by the legislature when it established the presumptive terms."
When a sentence is challenged on the ground that it is excessive, we are to uphold the sentence unless we are convinced that it is clearly mistaken. Having reviewed the record in Foley's case, we conclude that the record (1) supports Judge Motyka's
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