Brakes v. StateBrakes v. State
- Reporters:
- , ,
- Before:
- Singleton
OPINION
SINGLETON, Judge.
Edward M. Brakes, III, was seventeen years old on January 23, 1988, when a vehicle in which he was riding left the road and crashed. Tony D. Kokotovich, a passenger, died. Scott Stringer and Joseph M. Tompkins, two other passengers, suffered serious injuries. As a result of the accident, Brakes, who owned the vehicle involved, was charged with one count of manslaughter, in violation of AS 11.41.-120(a)(1), and two counts of assault in the first degree, in violation of AS 11.41.-200(a)(1). Because of Brakes’ age, these charges were brought in the juvenile court.
See
The trial court agreed in part and dismissed the complaint, but indicated that Brakes could be prosecuted for drunk driving earlier in the evening. The trial court relied on
Calder v. State,
619 P.2d 1026, 1029-30 (Alaska 1980), where the supreme court permitted one continuous course of reckless driving to be charged as two separate offenses. The factual basis for the two reckless driving convictions arguably consisted of separate conduct, as presented to the jury in the parties’ respective theories of the case. The state accepted the trial court’s suggestion and filed a supplemental complaint charging Brakes with drunk driving earlier in the evening. It gave notice, however, that it intended to argue at sentencing that Brakes in fact had been driving at the time of the accident, and that the death and injuries should serve to aggravate Brakes’ sentence for DWI. Brakes objected, arguing that relying on conduct for which he had been acquitted to enhance his sentence would violate double jeopardy and due process of law.
Brakes entered a no contest plea to the amended DWI charge and was sentenced to one year in jail with six months suspended. He was placed on probation for a period of five years with a condition of probation that he perform 500 hours of community work service. Additionally, his driver’s license was revoked for three years. The court, in determining the sentence, found by a preponderance of the evidence that Brakes was driving at the time of the fatal accident. Brakes appeals, we affirm.
DISCUSSION
Brakes first argues that the trial court violated his right to protection against double jeopardy and due process when it sentenced him for DWI. He points out that the court had previously dismissed the DWI charge on double jeopardy grounds following his acquittal in juvenile court on related charges of manslaughter and assault. 3
Brakes seems to be arguing that because he was acquitted of a greater offense it was fundamentally unfair for Superior Court Judge Walter L. Carpeneti to sentence him for a lesser offense (DWI) based upon an assumption, no matter how supported by verified facts, that the defendant committed the greater offense (manslaughter and assault). We have rejected this argument a number of times.
See Schnecker v. State,
739 P.2d 1310, 1312-13 (Alaska App.1987);
Benboe v. State,
698 P.2d 1230, 1232 (Alaska App.1985);
Breze
In Fee, we stressed that while a trial court may, within statutory limits, impose a severe sentence for a lesser crime on the ground that the accused actually committed a greater crime, such a determination must be based either on an admission of the defendant or on verified facts in the record.
Schnecker, 739 P.2d at 1312 (citing Fee, 656 P.2d at 1205). In the instant case, it does not appear that Brakes entered his no contest plea in detrimental reliance on a promise that his sentence would not exceed the sentence he actually received. Nor is there anything in the record to suggest that Brakes’ plea was dependent on an implied promise that the facts of the accident would not be taken into account at his sentencing.
As we said in Fee, 656 P.2d at 1204 (citations omitted):
A defendant can only be sentenced to a penalty appropriate for the crime for which he is convicted or to which he pleads. A jury verdict or a plea of guilty or nolo contendere serves to place a ceiling on the sentence that may be imposed. Nevertheless, in determining an appropriate sentence, the trial judge must evaluate’ the defendant and the crime or crimes which he has committed. In so doing, the judge must independently review the facts and make findings which, if supported by substantial evidence, would be sustained on appeal. One of the factors which trial judges consider in determining an appropriate •sentence is whether a defendant is a “worst offender.” In order to make this determination, the trial judge must determine precisely what the defendant did. Where the defendant pleads guilty to a lesser offense and a review of the facts establishes that he, in fact, committed a greater offense, the court may legitimately find that he is a worst offender for purposes of sentencing him for the lesser offense.
We have applied the same rule where the defendant was charged with a greater offense, acquitted of that offense, but convicted of a lesser offense. See, e.g., Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.1987). In Ridgely, Shelley Bosch was charged with first-degree murder. The jury acquitted her of first-degree murder and convicted her of second-degree murder, apparently reasoning that she had not intended to kill the victim. The trial court re-evaluated the facts at sentencing, concluded that Bosch had intended to kill the victim, despite the acquittal, and imposed a maximum ninety-nine-year sentence, which we affirmed on appeal. Id. We reached a similar conclusion in Huckaby, where the defendant was charged with negligent homicide on facts substantially similar to those in the instant case. The jury acquitted him of negligent homicide, but convicted him of reckless driving. We held that the trial court did not err in concluding that Huckaby had, in fact, caused the death of his victims recklessly and as a result imposing a maximum sentence for the lesser offense — reckless driving. 4 Huckaby, 632 P.2d at 976-77.
The federal court seems to have uniformly held that a trial court may consider conduct for which the defendant was acquitted in determining an appropriate sentence for the offense for which a defendant was convicted.
See United States v. Bernard,
757 F.2d 1439, 1444 (4th Cir.1985);
United States ex rel. Goldberg v. Warden,
622 F.2d 60, 63 (3d Cir.),
cert. denied,
449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980);
United States v. Bowdach,
561 F.2d 1160, 1175-76 (5th Cir.1977);
United States v. Cardi,
519 F.2d 309, 314 n. 3 (7th Cir.1975);
United States v. Atkins,
480 F.2d 1223, 1224 (9th Cir.1973);
United States v. Sweig,
454 F.2d 181, 183-84 (2d Cir.1972).
Cf. United States v. Campbell,
684 F.2d 141, 152-55 (D.C.Cir.1982) (affirming the trial court’s sentence based upon evidence introduced with respect to crimes of which the defendant was acquitted but
The federal courts have continued to apply this rule despite the adoption of sentencing guidelines. See United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-81 (2d Cir.1990); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) (rejecting double jeopardy challenge); United States v. Isom, 886 F.2d 736, 738 (4th Cir.1989) (rejecting due process challenge); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam) (rejecting claim that trial judge, in considering acquitted conduct, overrode jury’s determination of a fact); United States v. Ryan, 866 F.2d 604, 608-10 (3d Cir.1989) (rejecting claim that departure from guidelines on the basis of acquitted conduct was unreasonable). But see United States v. Perez, 858 F.2d 1272, 1277-78 (7th Cir.1988) (observing that the consideration of a prior acquittal is permissible as long as acquittal is not relied upon to enhance sentence); United States v. Plisek, 657 F.2d 920, 929-30 (7th Cir.1981) (Swygert, J., dissenting) (not allowing trial court to use prior acquittal to enhance later sentence).
Finally, separate prosecutions in juvenile and adult court appear to be required by statute so that in this case there is no appearance of vindictiveness in the state’s actions. Cf. State v. Williams, 730 P.2d 806, 809 (Alaska 1987) (Burke, J., concurring) (finding vindictiveness on distinguishable facts).
We therefore conclude that the trial court did not err in independently evaluating the facts and determining, if based upon substantial evidence, that Brakes was driving at the time of the accident.
Brakes argues that this finding was not supported by substantial evidence. Our review of the record indicates that the vehicle involved in the accident was Brakes’ and that he was placed in the driver’s seat by witnesses shortly before the accident. Under the circumstances, the trial judge’s finding that Brakes was driving is not clearly erroneous.
Brakes also argues that his sentence was excessive. He points out that he was a model student who had substantial academic achievements, that he had never been convicted of a felony or previously been convicted of DWI. Judge Carpeneti could properly conclude that Brakes’ driving while intoxicated was particularly serious because he was driving recklessly and at a high rate of speed when he left the party a short time before the accident occurred. Brakes had a prior conviction for speeding and what is more troublesome, he had a second conviction for speeding after the accident apparently while the manslaughter and assault charges were still pending. The fact that Brakes was convicted of speeding after the accident supports the trial court’s finding that Brakes poses a danger to the public based on his apparent lack of understanding (or callous disregard) of the seriousness of his conduct.
The trial court could properly take into account the fact that one person died and two others were severely injured as a result of Brakes’ conduct. See State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986) (serious injuries are foreseeable risk of drunk driving); Brown v. Anchorage, 764 P.2d 322 (Alaska App.1988) (upholding sentence of 360 days with 240 days suspended; although causing injury to another person is not an element of DWI, it was a foreseeable result of the conduct and aggravates the offense).
The judgment and sentence of the superior court are AFFIRMED. 6
Notes
.
Jurisdiction, (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor
(1) to be a delinquent minor as a result of violating a criminal law of the state or of a municipality of the state....
. Former
When a minor is accused of violating a traffic statute or regulation, a traffic ordinance or regulation of an incorporated municipality, a fish and game statute or regulation under AS 16 or a parks and recreational facilities statute or regulation under AS 41.21, excepting a statute the violation of which is a felony, the procedure prescribed in AS 47.10.-020 — 47.10.090 may not be followed, except that a parent, guardian or legal custodian shall be present at all proceedings. The minor accused of a traffic offense, a fish and game statute or regulation or violation under AS 16 or parks and recreational facilities violation under AS 41.21 shall be charged, prosecuted, and sentenced in the district court in the same manner as an adult.
This provision has been interpreted as applicable to all traffic misdemeanors including serious offenses for which substantial jail time may be imposed.
See, e.g., State v. G.L.P.,
590 P.2d
65 (Alaska 1979) (minor charged with “joy riding,” a misdemeanor prosecuted as an adult under
. Brakes did not argue in the trial court that his DWI conviction, as opposed to the sentence imposed, subjected him to double jeopardy. He does not challenge his conviction on appeal. But see Mars v. Mounts, 895 F.2d 1348 (11th Cir.1990) (setting aside a conviction on double jeopardy grounds under similar circumstances); cf. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); Corbin v. Hillery, 74 N.Y.2d 279, 545 N.Y.S.2d 71, 543 N.E.2d 714 (1989), aff‘d sub nom. Grady v. Corbin, - U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Brakes seems to concede that he did not dispute at trial the evidence that he was driving while intoxicated shortly before the accident, he only disputed that he was driving, whether intoxicated or not at the time of the accident. Consequently, he seems to concede that the jury did not consider whether he was driving at the earlier time when it acquitted him, so that Calder would control. See Calder, 619 P.2d at 1029-30.
. Since the issues have not been briefed, we do not decide whether DWI is a lesser-included offense of traffic manslaughter or traffic felony assault.
See Corbin,
545 N.Y.S.2d at 77 n. 7, 543 N.E.2d at 720 n. 7.
Compare Comeau v. State,
758 P.2d 108, 117 (Alaska App.1988) (reckless and negligent driving are lesser-included offenses of DWI
with St. John v. State,
715 P.2d 1205, 1207-11 (Alaska App.1986) (evidence that a person drove while intoxicated and caused death establishes
prima facie
case of manslaughter and by extension traffic felony assault). Nor do we decide whether a person prosecuted in a delinquency proceeding for traffic manslaughter is upon request entitled to a lesser-included offense instruction on DWI, despite the fact that DWI is not an offense triable in a delinquency proceeding.
See Keeble v. United States,
412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (considering an analogous issue under
. We have never articulated a standard of proof for disputed factual issues at sentencing.
See Willard v. State,
662 P.2d 971, 975 (Alaska App. 1983);
Huckaby,
632 P.2d at 976 n. 2. Brakes argues that the standard should be “clear and convincing evidence,” the standard that is applied to findings of aggravating and mitigating factors under
In reaching its findings on all controverted issues ..., the sentencing court should employ the preponderance of the evidence standard and may treat the contents of a verified presentence report as presumptively accurate, provided, however, that material factual allegations made in the presentence report and effectively challenged by the defendant should not be deemed to satisfy the government’s burden of persuasion unless reasonable verification of such information can be shown to have been made ... or adequate factual corroboration otherwise exists in the sentencing or trial record.
Ill Standards for Criminal Justice § 18-6.4(c) (2d ed. 1980).
We find further support for this position in the fact that federal courts have uniformly held that factual determinations under the new federal sentencing guidelines may be made by a preponderance of the evidence and that [n]o greater standard of proof is required by due process. United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir.1990); United States v. Frederick, 897 F.2d 490 (10th Cir.1990); United States v. Howard, 894 F.2d 1085 (9th Cir.1990); United States v. Gooden, 892 F.2d 725 (8th Cir. 1989), cert, denied, — U.S.-, 110 S.Ct. 2594, 110 L.Ed.2d 274 (1990); United States v. Silver-man, 889 F.2d 1531 (6th Cir.1989); United States v. Casto, 889 F.2d 562 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1164, 107 L.Ed.2d 1067 (1990); United States v. Burke, 888 F.2d 862 (D.C.Cir.1989); United States v. White, 888 F.2d 490 (7th Cir.1989); United States v. McDowell, 888 F.2d 285 (3d Cir.1989); United States v. Guerra, 888 F.2d 247 (2d Cir.1989), cert, denied, — U.S. -, 110 S.Ct. 1833, 108 L.Ed.2d 961 (1990); United States v. Urrego-Li-nares, 879 F.2d 1234 (4th Cir.), cert, denied,U.S. --, 110 S.Ct. 346, 107 L.Ed.2d 334 (1989); United States v. Wright, 873 F.2d 437 (1st Cir. 1989).
We stress, however, that our holding is limited to verified facts offered in cases of non-presumptive sentencing. In
Austin v. State,
627 P.2d 657 (Alaska App. 1981), we held that a first felony offender convicted of an offense should normally receive a more favorable sentence than the presumptive sentence for a second offender. In only exceptional cases would a sentence equal to or greater than a second offender’s presumptive term be sustained on appeal.
Id.
at 658. In later cases we have indicated that “exceptional cases” involve statutory aggravating factors,
. Brakes argues the trial court erred when it denied his request to continue sentencing in order to provide additional evidence that he had not been driving. An examination of the record establishes that Brakes sought a continuance in order to petition this court for review of the trial court’s decision to consider the fact that Brakes was driving at the time of the accident in