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Downs v. State (5/6/94) ap-1345
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MARK DOWNS, ) Court of Appeals Nos. A-
) A-5044, & A-5083
Appellant, ) Trial Court Nos. 3PA-93-302,
) 3PA-91-1041, & 3PA-90-1233
) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1345 - May 6, 1994]
Appeal from the District Court, Third
Judicial District, Palmer, Peter G. Ashman,
Appearances: Randall S. Cavanaugh,
Anchorage, for Appellant. David G. Berry,
Assistant District Attorney, Kenneth J.
Goldman, District Attorney, Palmer, and
Charles E. Cole, Attorney General, Juneau,
Before: Coats and Mannheimer, Judges,
and Wolverton, District Court Judge.*
[Bryner, Chief Judge, not participating.]
On February 11, 1993, Mark Downs drove a motor vehicle
while his blood-alcohol level was .157 percent and while his
driver's license was revoked from previous drunk driving convic
tions. Downs pleaded no contest to driving while intoxicated
(DWI), AS 28.35.030(a), and to driving while his license was
revoked (DWLR), AS 28.15.291(a). These offenses were Downs's
fifth DWI and his eleventh DWLR.
For the offense of driving while intoxicated, District
Court Judge Peter G. Ashman sentenced Downs to 360 days in jail
with 300 days suspended (60 days to serve). For the offense of
driving with a revoked license, Judge Ashman sentenced Downs to a
consecutive 360 days in jail (all to serve). Thus, Downs's
composite sentence from his most recent offenses is 420 days to
serve, with an additional 300 days suspended.
Because of these new offenses, Judge Ashman revoked
Downs's probation from two prior DWLR convictions from 1990 and
1991. For the 1990 DWLR, Downs had received 365 days in jail
with 180 days suspended; Judge Ashman now imposed the 180 days of
previously suspended jail time. For the 1991 DWLR, Downs had
received 360 days in jail with 90 days suspended; again, Judge
Ashman imposed all the remaining jail time (90 days).
Judge Ashman ran these two probation revocation
sentences consecutively to Downs's sentences for his 1993 crimes.
Thus, when the sentences from Downs's 1993, 1991, and 1990
offenses are totaled, Downs received a composite sentence of 690
days to serve, with an additional 300 days suspended.
Downs argues that his sentences are excessive and that
the district court should have allowed him to serve his jail time
in yearly 8-month increments (leaving him free during the summer
months to pursue his vocation as a fishing guide). We affirm the
district court's sentencing decision.
Downs first attacks his 360-day sentence for driving
while his license was revoked. He points out that driving with a
revoked license is generally classified as a malum prohibitum
offense - that is, an offense not known to the common law and one
which is not, of itself, inherently dangerous to others.1 Downs
argues that, because driving with a revoked license is a malum
prohibitum offense, no major societal interest is at stake when
the offense is committed, and therefore the crime can not support
a substantial jail sentence.
We disagree. Regardless of whether driving with a
revoked license is a malum prohibitum offense, the Alaska
legislature clearly considers this offense to be among the most
serious misdemeanors. The legislature has provided substantial
mandatory minimum penalties for persons convicted of this
offense: 10 days in jail for a second offense, and 20 days with
10 suspended for a first offense if the defendant's license was
revoked on account of a DWI conviction. AS 28.15.291(b). This
court has previously upheld substantial sentences for this crime.
See, for example, Resecker v. State, 721 P.2d 650, 654 (Alaska
Moreover, Downs's license was revoked because of his
convictions for driving while intoxicated. Downs had no driver's
license because he had proved that he could not be trusted to
operate a potentially lethal machine in a responsible manner.
This point is amplified by the fact that Downs's most recent
conviction for DWLR was accompanied by yet another conviction for
DWI. Whatever might be argued about the offense of driving with
a revoked license in the abstract, Judge Ashman could properly
conclude that Downs, who had eleven convictions for DWLR, was a
dangerous and largely undeterrable offender. The record supports
Judge Ashman's finding that Downs was a worst offender for whom
the maximum sentence was justified. See Pointer v. Anchorage,
812 P.2d 232, 234 (Alaska App. 1991) (a defendant's lengthy
history of mostly non-violent misdemeanors can support a finding
that a defendant is a worst offender).
Downs also argues that, even assuming he properly
received the maximum sentence for driving with a revoked license,
Judge Ashman should not have sentenced him to another 330 days of
consecutive jail time for his DWI conviction and for the
probation revocations from his 1991 and 1990 DWLR offenses.
However, Downs has an egregious history of repeated, serious
driving offenses: eleven DWLR convictions and five DWI convic
tions. He has continued to commit these offenses despite the
district court's imposition of lesser jail sentences and
probation. Downs's criminal record adequately supports Judge
Ashman's decision to impose a composite sentence exceeding the 1-
year maximum for a single DWLR. See State v. Graybill, 695 P.2d
725, 731 (Alaska 1985) (a defendant's history of repeated non-
violent crimes despite convictions and lesser jail sentences can
support a finding that the defendant is a dangerous offender
whose composite sentence can exceed the maximum sentence for the
single most serious offense); Alward v. State, 767 P.2d 1175,
1177 (Alaska App. 1989) (upholding a composite sentence of
2 years' imprisonment for a defendant's seventh DWI and sixth
As his final argument on appeal, Downs asserts that
Judge Ashman abused his discretion when he failed to allow Downs
to serve his sentence in 8-month annual increments. Both at
sentencing and in a later motion for reconsideration, Downs asked
Judge Ashman to allow him to serve this sentence in yearly
increments of 8 months so that Downs would have 4 months every
year to pursue his livelihood as a fishing guide. Judge Ashman
denied Downs's request. He noted that Downs had avoided
lengthier jail sentences in the past by pleading the seasonal
requirements of his business. Despite this lenient
consideration, Downs had continued to commit new offenses and he
had avoided alcohol treatment. Judge Ashman concluded that
Downs's record of continued violations foreclosed any further
leniency on this score.
The record demonstrates that Judge Ashman had a
reasoned basis for his decision. We therefore find no abuse of
discretion. See Gonzales v. State, 691 P.2d 285, 286 (Alaska
App. 1984) (under an abuse of discretion standard, a reviewing
court is to reverse only "if the trial court's decision is
clearly untenable or unreasonable").
In sum, we conclude that Downs's composite sentence is
not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974). The sentencing decision of the district court is
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 This is concededly an over-simplification of the legal
terminology. There appears to be no fixed definition of the term
malum prohibitum. For a discussion of the various meanings
ascribed to this term, see W. LaFave and A. Scott, Substantive
Criminal Law (1986), 1.6(b), Vol. 1, pp. 45-48.