 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Clark v. State9/22/2000
In this appeal, we are asked to decide whether presumptive sentencing applies to defendants convicted of felony driving while intoxicated. We hold that it does.
Johnny L. Clark drove a motor vehicle while he was intoxicated, a violation of AS 28.35.030(a). This offense is normally a misdemeanor; but because Clark had two prior convictions for this crime within the preceding five years, his offense was a class C felony under AS 28.35.030(n). Clark pleaded no contest to this charge.
Clark had thirty-one prior criminal convictions. These convictions included two felonies: third-degree assault and attempted second-degree sexual assault. Based on Clark's two prior felonies, Superior Court Judge Charles K. Cranston ruled that Clark was subject to presumptive sentencing as a third felony offender. Because felony DWI is a class C felony, the judge ruled that Clark faced a 3-year presumptive term.
Judge Cranston found one pertinent aggravating factor under AS 12.55.155(c): aggravator (c)(8) - that Clark's criminal history included aggravated or repeated instances of assaultive behavior. (Besides his two assaultive felonies, Clark had been convicted of seven misdemeanor assaults over the past twenty years.) Based on this aggravator, Judge Cranston adjusted Clark's presumptive term by adding 6 months to serve and an additional 1½ years suspended. That is, Clark was sentenced to 5 years' imprisonment with 1½ years suspended (3½ years to serve).
In this appeal, Clark contends that presumptive sentencing does not apply to his offense. He points out that, in AS 28.35.030(n), the legislature has enacted a series of mandatory minimum sentences for felony DWI - minimum sentences that escalate depending on how many times the defendant has been convicted of DWI or breath-test refusal within the preceding ten years. Clark argues that these mandatory minimum sentences are intended to supplant or supersede the "minimum sentences" contained in the presumptive sentencing statutes (specifically, in AS 12.55.125).
Clark's argument is flawed because the presumptive terms listed in AS 12.55.125 are not "minimum sentences". 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".
A presumptive term, on the other hand, represents the legislature's judgment as to the appropriate sentence for a typical felony offender (i.e., an offender with the specified number of prior felony convictions, and with a typical background) who commits a typical act within the definition of the offense. Thus, the mandatory minimum sentences for felony DWI listed in AS 28.35.030(n) serve a different purpose from the presumptive terms for class C felonies listed in AS 12.55.125(e).
Under AS 12.55.125(e), the sentencing range for class C felonies is normally 0 to 5 years. For defendants with at least one prior felony conviction, the presumptive terms listed in 125(e)(1) and (e)(2) establish the starting point for sentencing within that 0- to 5-year range. For instance, because Clark is a third felony offender, his presumptive term of imprisonment was 3 years, but the sentencing judge had the authority to adjust that presumptive term - increasing Clark's sentence up to 5 years or decreasing it down to 0 years - if aggravating and/or mitigating factors were proved. (Even in the absence of aggravating or mitigating factors, Judge Cranston could have referred Clark's case to the statewide three-judge panel under AS 12.55.165.)
The mandatory minimum sentences listed in AS 28.35.030(n) perform another fun
Page 1 2 3 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|