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Felber v. State (12/3/2010) ap-2282

Felber v. State (12/3/2010) ap-2282

                                               NOTICE
 
        The text of this opinion can be corrected before the opinion is published in the 
        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 
        errors to the attention of the Clerk of the Appellate Courts: 

                               303 K Street, Anchorage, Alaska  99501
 
                                        Fax:   (907) 264-0878
 
                         E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

KRISTOPHER WILLIAM FELBER, 
                                                             Court of Appeals No. A-10384 
                                Appellant,                 Trial Court No. 3AN-06-1057 Cr 

                        v. 
                                                                     O   P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                  No. 2282     -   December 3, 2010 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 
                Anchorage, Philip R. Volland, Judge. 

                Appearances:       Brian   T.  Duffy,   Assistant   Public   Advocate, 
                Appeals   and   Statewide   Defense   Section,   and   Rachel   Levitt, 
                Public Advocate, Anchorage, for the Appellant.  W. H. Hawley, 
                Assistant Attorney General, Office of Special Prosecutions and 
                Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, 
                Juneau, for the Appellee. 

                Before:    Coats,    Chief   Judge,   and  Mannheimer      and  Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                This case involves an effort by the defendant, Kristopher William Felber, 

to withdraw from a plea agreement that he reached with the State of Alaska.  Under this 

agreement,   Felber   pleaded   guilty   to   twenty-three   criminal   charges   -   ranging   from 

----------------------- Page 2-----------------------

second-degree murder and several counts of first-degree assault, to vehicle theft, driving 

under the influence, and driving with a suspended license. 

                The plea agreement called for the superior court to impose a composite 

sentence     of  between     50  and   85   years   to  serve  (with   the  possibility   of   additional 

suspended jail time). But after Felber accepted the plea agreement and entered his guilty 

pleas, he became convinced that even the minimum sentence envisioned by the plea 

agreement - i.e., 50 years to serve - was unjustifiably severe under Alaska sentencing 

law.   Felber therefore asked the superior court to release him from the plea agreement. 

                What makes this   case   unusual is that Felber offered to unconditionally 

plead guilty again to all of the charges against him if the superior court allowed him to 

withdraw from the plea agreement.   In other words, Felber remained willing to concede 

his guilt as to all charges, but he did not want the superior court to be bound by the 50 

to 85-year sentencing range specified in the plea agreement. 

                As we explain in this opinion,   the   true underlying issue in this case is 

whether   the   sentencing   range   specified   in   the   plea   agreement   subjected   Felber   to   a 

sentence so severe that it could not be justified under the sentencing criteria codified in 

AS 12.55.005 and prior Alaska sentencing case law. We conclude that Felber's sentence 

is  justified,   given   the   totality   of   his   conduct   and   his   background. Accordingly,   we 

conclude that Felber failed to demonstrate a fair and just reason to withdraw from the 

plea agreement. 

        Underlying facts 

                On the morning of January 31, 2006, Kristopher Felber stole a truck that 

was idling outside a residence in the Muldoon area of Anchorage.   Felber ran a stop sign 

and turned south onto Boniface Parkway (an arterial road running north-south) - almost 

                                                  - 2 -                                             2282
 

----------------------- Page 3-----------------------

colliding with two vehicles in the process.            The driver of one of these vehicles later 

described Felber's driving as "above and beyond crazy". 

                This driver followed Felber to the intersection of Boniface Parkway and 

Northern Lights Boulevard, where Felber turned right (west) and accelerated the stolen 

truck to a speed of 70 to 80 miles per hour.  As Felber approached East High School (i.e., 

near the intersection of Northern Lights Boulevard and Bragaw Street), an Anchorage 

police patrol vehicle began following Felber, and soon three other police cars joined the 

pursuit.   Additional patrol cars positioned themselves to block off the intersection of 

Northern Lights Boulevard and Lake Otis Parkway (the next major intersection that 

Felber would encounter as he drove west). 

                By coordinating their efforts, police officers in four patrol cars managed to 

box   Felber   in   and   bring   him   to   a   halt. The   officers   approached   Felber   with   drawn 

weapons and flashlights; they ordered him to get out of the stolen truck and to keep his 

hands in plain view. 

                Although Felber was seemingly trapped, he suddenly put the truck into 

reverse and accelerated backward, ramming the patrol vehicle that was stationed behind 

him and forcing a police officer to scramble out of the way to avoid being run down. 

Felber   then   put   the   truck   into   drive   and   accelerated   again   -   this   time   forcing   two 

officers who were in front of him to dash to the side to avoid being hit. Felber struck two 

police vehicles and rammed the cars of several civilians as he plowed an escape route 

westward on Northern Lights.           One of the witnesses described the scene as "the infield 

of [a] demolition derby". 

                Felber drove his truck over the median that separates the eastbound and 

westbound traffic on Northern Lights Boulevard, so that he was driving the wrong way 

in the eastbound lanes when he approached the intersection of Northern Lights and Lake 

Otis Parkway.      Two of the police officers at the scene fired shots at Felber in an effort 

                                                 - 3 -                                             2282
 

----------------------- Page 4-----------------------

to stop him, but these shots missed.   When Felber got to the intersection, he turned north 

on Lake Otis Parkway and accelerated to a speed of close to 80 miles per hour. 

                At the next controlled intersection (the intersection of Lake Otis Parkway 

and East 20th Street), Felber ran a red light and collided with a Chevrolet driven by 

Stephen Strain.   Felber did not make an appreciable effort to slow his vehicle before the 

collision:   he struck the Chevrolet at approximately 60 miles per hour, and he kept his 

foot on the gas even after colliding with the Chevrolet. 

                Felber pushed the Chevrolet northward 75 feet - where both Felber's truck 

and the Chevrolet came to rest.         In the process, Felber's stolen truck and the Chevrolet 

collided   with   three   other   vehicles   and   injured   the   drivers   of   those   vehicles. As   for 

Stephen Strain (the driver of the Chevrolet), he suffered multiple blunt force injuries, and 

he died at the scene. 

                Felber immediately fled the scene of this collision. When the police arrived 

at the scene, they found the stolen truck with no one inside.  Forty minutes later, Felber 

was observed walking on a nearby street.             When the police stopped him, Felber was 

wearing a glove on his left hand, but his right hand was ungloved and in his pocket.  The 

matching glove was found next to the passenger door of the stolen truck. 

                Felber claimed that he had just come from a nearby house and that he had 

not been driving.      His breath smelled of alcoholic beverages, and he appeared to be 

intoxicated.   Later testing of Felber's blood showed that he had a blood alcohol level of 

between .11 and .13 percent, and that his blood also contained a sufficient amount of 

THC (the active component of marijuana) to independently impair his ability to drive. 

                Based on these events, Felber was indicted for second-degree murder (and 

an alternative count of manslaughter) for causing the death of Stephen Strain, and on 

four counts of first-degree assault (together with four alternative counts of third-degree 

assault) for causing   serious   physical injury to the drivers of four other vehicles.  In 

                                                  - 4 -                                             2282
 

----------------------- Page 5-----------------------

addition, Felber was indicted on four counts of third-degree assault for placing four 

police officers in fear of imminent serious physical injury, and five more counts of third- 

degree assault for placing five other motorists in fear of imminent serious physical injury. 

Finally, Felber was indicted for first-degree vehicle theft (for stealing the truck), first- 

degree eluding a police officer (for failing to stop when directed to do so on Northern 

Lights Boulevard), and failing to stop and render aid after an injury accident. 

                The      State   later   filed   an   information      charging     Felber     with   two 

misdemeanors:   driving under the influence, and driving when his license was revoked, 

suspended, or canceled. 

        The plea agreement 

                At the time of the events described in the preceding section of this opinion, 

Felber had already been convicted of two prior felonies.  He was therefore a third felony 
offender     for   presumptive      sentencing     purposes. 1     Felber    also   had   several    prior 

misdemeanor convictions, as well as a lengthy record as a juvenile. 

                One of Felber's prior felonies bore a striking resemblance to the events of 

the present case:      Felber, while intoxicated, stole a commercial truck that had been left 

idling outside the business premises.          He drove the truck so recklessly that he collided 

with   three   parked   cars   and   then   lodged   the   truck   in   a   snowbank. When   the   police 

approached the scene, Felber fled on foot (but was apprehended). Based on this incident, 

Felber was convicted of first-degree vehicle theft and driving under the influence. 

                One of Felber's prior misdemeanors also involved conduct that mirrored 

Felber's conduct in the present case.           Felber stole a vehicle that had been left idling 

    1   AS 12.55.185(17). 

                                                  - 5 -                                               2282 

----------------------- Page 6-----------------------

outside a residence.  He drove the vehicle on icy roads at speeds exceeding 95 miles per 

hour, despite the fact that his passenger - fearful for his life - pleaded with Felber to 

pull over and let him out.   The vehicle ultimately became stuck on a median, and Felber 

fled the scene. 

               Because     Felber   was   a  third  felony  offender,   he  faced   a  presumptive 

sentencing range of 15 to 20 years' imprisonment for each of his four counts of first- 
degree assault, 2 and a presumptive sentencing range of 3 to 5 years' imprisonment for 

each of the nine third-degree assault counts involving victims other than those named in 
the first-degree assault counts. 3 

               Felber's most serious offense, second-degree murder, is not governed by 

presumptive   sentencing.      For   this   crime,   Felber   faced   an   indeterminate   sentence   of 
between 10 and 99 years' imprisonment. 4 

               This Court has established a benchmark sentencing range of 20 to 30 years 

to     serve     for    first   felony      offenders       convicted       of    second-degree 
murder. 5   As we explained in Carlson v. State, 128 P.3d 197, 203 (Alaska App. 2006), 

"The legal effect of [this] benchmark range is that sentencing judges who wish to impose 

more than 30 years to serve for the crime of second-degree murder must explain why 

they view the defendant as having a worse background than that of a typical first felony 

offender, or why they view the defendant's crime as worse than a typical second-degree 

murder." 

    2   AS 12.55.125(c)(4). 

    3   AS 12.55.125(e)(3). 

    4   AS 12.55.125(b). 

    5   See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983). 

                                               - 6 -                                            2282 

----------------------- Page 7-----------------------

                To resolve the charges against Felber, the State offered the following plea 

agreement:      Felber would plead guilty to all the counts of the indictment except the 

manslaughter count (which was a lesser alternative to the second-degree murder count), 

and Felber would concede that the State's recitation of the underlying facts of the case 

(contained in the charging document) was accurate. Felber would further agree to accept 

a composite sentence of at least 50 years to serve.  The State, for its part, agreed to accept 

a composite sentence of no more than 85 years to serve (although the superior court 

would be free to impose additional suspended jail time). 

                As   we   explained   earlier,   four   of   the   third-degree   assault   counts   in   the 

indictment involved the same victims as the four first-degree assault counts.                  In other 

words, these four third-degree assault counts were alternative lesser charges.                  As the 

superior court recognized at the sentencing hearing, Felber could not lawfully receive 

separate convictions and sentences for both first-degree assault and third-degree assault 

upon the same victim stemming from the same criminal episode.                    For this reason, the 

superior court merged these four third-degree assault counts with the corresponding first- 

degree assault counts. 

                As a consequence, the true nature of Felber's plea agreement was that he 

would receive a composite sentence of between 50 and 85 years to serve for one count 

of second-degree murder, four counts of first-degree assault, nine counts of third-degree 

assault, one count of first-degree vehicle theft, one count of first-degree eluding a police 

officer, one count of failing to stop and render aid after an injury accident, one count of 

misdemeanor driving under the influence, and one count of driving when his license was 

revoked, suspended, or canceled. 

                In early November 2007, Felber (through his attorney) announced that he 

intended to accept this offered plea bargain.           On November 13th, Felber appeared in 

front of Superior Court Judge Philip R. Volland and formally entered a guilty plea to 

                                                 - 7 -                                             2282
 

----------------------- Page 8-----------------------

each of the charges against him (with the exception of the manslaughter charge, which 

was ultimately dismissed). 

        Felber's motion to withdraw from the plea agreement 

                In November 2008, Felber appeared in the superior court for sentencing. 

After the victim impact statements were presented, and after the prosecutor made his 

sentencing remarks, Felber's attorney commenced his sentencing argument. During this 

argument,   the   defense   attorney     directed   Judge   Volland's   attention     to   various   past 

sentencing decisions of this Court - decisions in which drunk or reckless drivers who 

killed and injured several people received sentences that were considerably more lenient 

than the minimum 50-year sentence specified in Felber's plea agreement. 

                At this point, Judge Volland interrupted the defense attorney's argument 

to ask what the defense attorney was proposing. The defense attorney replied that Felber 

wanted the court to rescind the plea agreement: 

                The Court:  I don't know what you're asking me to do, so I guess I 
        need to ask [you] now. 

                Defense Attorney :  I'm asking you to not accept the plea agreement 
        [because the 50-year minimum sentence] is not reasonably proportional 
        [with]   the   sentencing   criteria.  I'm   asking   you   to   treat   this   as   an   open 
        sentencing.     I'm asking you to follow what the court of appeals has set 
        down for this sort of offense. And the number I came up with was 20 years 
        to serve, [plus] suspended time on top. 

                The Court:     I thought my option, if I considered ... the proposed 
        sentence [to be] inappropriate under sentencing law, was to simply reject 
        the plea agreement. 

                                                 - 8 -                                            2282
 

----------------------- Page 9-----------------------

              Defense Attorney :  That is your option.  I then went to the next step 
       and said we are - we have already pled to every single count [of] the 
       indictment except for the manslaughter [count].      The manslaughter is a 
       lesser included of the [second-degree] murder.   We are perfectly ... willing 
       to plead [guilty] to the manslaughter [as well as the other charges], and 
       [then] treat this as an open sentencing. 

              After taking a recess to consider this matter, Judge Volland reconvened the 

court and announced that he had decided to deny Felber's motion for open sentencing. 

Judge Volland acknowledged that, in this situation, he had the authority to reject the plea 

agreement if he believed that the agreement called for an excessive sentence. See Alaska 

Criminal Rule 11(e)(3).    However, Judge Volland declared that he would not exercise 

his authority to reject the plea agreement - because he concluded that the 50-year 

mandatory minimum sentence specified in the plea agreement was within the range of 

reasonable sentences for Felber's crimes. 

              Judge Volland then proceeded to analyze Felber's conduct and background 

in light of the statutory sentencing criteria.  At the conclusion of this analysis, Judge 

Volland sentenced Felber as follows: 

              For   the  second-degree   murder   conviction,  Felber   received  40  years' 

imprisonment with 15 years suspended (25 years to serve). 

              On each of the four counts of first-degree assault, Felber received 15 years' 

imprisonment, with 5 years of each sentence consecutive to the others (and consecutive 

to the second-degree murder sentence), and the remainder concurrent.        That is, Judge 

Volland imposed a total of an additional 20 years to serve for the first-degree assault 

convictions. 

              On each of the nine counts of third-degree assault (that is, the third-degree 

assault counts that did not overlap with the first-degree assault counts), Felber received 

5 years' imprisonment, with 2 years of each sentence consecutive to the others (and 

                                           - 9 -                                       2282
 

----------------------- Page 10-----------------------

consecutive to Felber's sentences for second-degree murder and first-degree assault), and 

the remainder concurrent.         That is, Judge Volland imposed a total of an additional 18 

years to serve for these nine third-degree assault convictions. 

                 Judge   Volland   sentenced   Felber   to   1   consecutive   year   to   serve   for   his 

vehicle theft conviction, and he sentenced Felber to 2 consecutive years to serve for 

failing to stop and render aid at the scene of an injury accident. 

                 Felber's   sentences   for     eluding   a   police   officer,   for   driving  under   the 

influence, and for driving while his license was revoked or suspended were imposed 

completely concurrently with his other sentences, so these sentences did not increase 

Felber's composite time to serve. 

                 All told, then, Felber received a composite sentence of 66 years to serve - 

81   years   with   15   suspended.      In   other   words,   Judge   Volland   imposed   a   composite 

sentence that significantly exceeded the 50-year minimum sentence specified in the plea 

agreement. 

         Whether   Felber   should   have   been   allowed   to   withdraw   from   the   plea 
        agreement 

                 On   appeal,   Felber   and   the   State   present   various   arguments   concerning 

whether      Judge    Volland     should    have    allowed    Felber    to  withdraw      from   the   plea 

agreement.      Clearly, Felber's request was somewhat unusual, in that he did not seek to 

withdraw   his pleas :      Felber   was   still   willing   to   plead   guilty   to   every   count   in   the 

indictment.  Rather, he sought only to withdraw from the portion of the plea agreement 

that limited the superior court's sentencing discretion to a range of 50 to 85 years to 

serve. 

                                                  -  10 -                                              2282
 

----------------------- Page 11-----------------------

                 In essence, Felber argues that he should have been allowed to withdraw 

from this provision of the agreement because (to use the terminology of contract law) the 

consideration he received was invalid - legally insufficient to support a contract. 

                 Ostensibly, both parties to the plea agreement gained something:   the State 

obtained the benefit of a guaranteed minimum sentence of 50 years to serve, while Felber 

obtained the benefit of limiting his sentence to 85 years to serve in a situation where the 
composite statutory maximum penalty for his offenses was 246 years. 6 

                 But Felber argues that, under Alaska sentencing law and the applicable 

sentencing decisions   of this Court, there was no possibility that he would receive a 

sentence   in   excess   of   85   years   -   and   that,   indeed,   even   a   composite   sentence   of 

50   years'   imprisonment   (the   minimum   composite   sentence   allowed   under   the   plea 

agreement) is "clearly mistaken" when evaluated under the sentencing criteria codified 

in AS 12.55.005, and assessed against this Court's prior decisions involving defendants 

sentenced for reckless vehicular homicide. 

                 Thus,   Felber   not   only   asserts   that   his   composite   sentence   of   66   years' 

imprisonment is clearly mistaken, but he further asserts that, as a matter of law, he should 

have received a composite sentence of substantially less than 50 years' imprisonment - 

    6   The    maximum       penalty   for  second-degree      murder    was   99  years'   imprisonment; 

AS 12.55.125(b).      The maximum penalty for each of the four counts of first-degree assault 
was 20 years' imprisonment; AS 12.55.125(c).  The maximum penalty for leaving the scene 
of an injury accident was 10 years' imprisonment; AS 28.35.060(c).   The maximum penalty 
for each of the nine counts of third-degree assault, as well as for the offenses of first-degree 
vehicle theft and   felony eluding a police officer, was 5 years' imprisonment; AS 12.55. 
125(e).  The maximum penalty for misdemeanor driving under the influence, and for driving 
with    a  revoked    or  suspended     license,   was   1  year's   imprisonment;      AS   28.35.030(b), 
AS 28.15.291(a), and AS 12.55.135(a). 

                                                  -  11 -                                              2282
 

----------------------- Page 12-----------------------

and, thus, the purported benefit he received under the plea agreement was not a legally 
valid "consideration". 7 

              If Felber had agreed to an unlawfully severe sentence - i.e., a sentence that 

was clearly mistaken when judged in light of the statutory sentencing criteria - then he 

may have had a fair and just reason to withdraw from the plea agreement and demand 

an open sentencing on his guilty pleas.   But for the reasons explained here, we conclude 

that Felber's sentence is not clearly mistaken. 

              As Felber notes, his sentence of 66 years to serve is substantially more 

severe than any sentence this Court has previously affirmed for vehicular homicide. 

              In Tice v. State, 199 P.3d 1175, 1178-79 (Alaska App. 2008), we affirmed 

a sentence of 25 years to serve for a third felony offender whose reckless driving caused 

the death of one of his passengers and caused serious injury to another.     In Foxglove v. 

State, 929 P.2d 669, 670-71 (Alaska App. 1997), we affirmed a composite sentence of 

19 years to serve for a drunk driver convicted of one count of manslaughter and several 

counts of first-degree assault; Foxglove drove his snow machine into a group of people 

clustered around a bonfire at a speed of 70 miles per hour.  Id. at 670.  And in Pusich v. 

State, 907 P.2d 29, 38-40 (Alaska App. 1995), we upheld a composite sentence of 18 

years to serve for a drunk driver convicted of one count of manslaughter (involving three 

victims) and one count of first-degree assault; Pusich had two prior DUI convictions and 

numerous traffic violations.  Id. at 32. 

              One more pertinent decision is Powell v. State, 88 P.3d 532, 539 (Alaska 

App. 2004), where we affirmed a sentence of 26 years to serve in a drunk-driving case 

that did not involve a homicide.   Powell's most serious offense was first-degree assault, 

    7  See, e.g.,  Wilcox v. Lexington Eye Institute, 122 P.3d 729, 732 (Wash. App. 2005) 

("performance of a pre-existing legal obligation does not constitute valid consideration"). 

                                           -  12 -                                      2282 

----------------------- Page 13-----------------------

but he was a fourth felony offender with eleven prior convictions for driving under the 

influence. 

                When a defendant challenges their composite sentence as excessive, we 

evaluate the composite sentence in light of the totality of the defendant's conduct and 
background. 8     Because the question is whether the defendant's combined sentence is 

justified in light of the entirety of the defendant's conduct and history, Alaska law does 

not   require   that   a  specific  sentence  imposed     for  a  particular  count   or  offense  be 
individually justifiable as if that one crime were considered in isolation. 9         The question 

in the present appeal, then, is whether the totality of Felber's conduct and his background 

justify a sentence of imprisonment that is 40 years greater than the sentences we have 

previously affirmed for offenders convicted of killing and seriously injuring other people 

with their motor vehicles. 

                We begin by noting that the conduct underlying Felber's act of second- 

degree murder was among the most serious within the definition of that crime.                 Felber 

was not merely driving recklessly, heedless of the danger that his driving posed to others. 

Instead, beginning from the time when the police stopped Felber on Northern Lights 

Boulevard and boxed him in, Felber consciously used his vehicle as a weapon. 

                In his effort to escape from the police, Felber drove the stolen truck at the 

police cars and the police officers surrounding him. He then turned north onto Lake Otis 

Parkway and consciously rammed Stephen Strain's Chevrolet because it was in his way. 

According to the evidence, Felber did not attempt to slow down even after colliding with 

    8   See, e.g., Hunter v. State, 182 P.3d 1146, 1155 (Alaska App. 2008); Brown v. State, 

 12 P.3d 201, 210 (Alaska App. 2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 
 1987). 

    9   See, e.g., Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v. State, 765 P.2d 

 107, 109 (Alaska App. 1988); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987). 

                                               -  13 -                                           2282 

----------------------- Page 14-----------------------

Strain's vehicle; instead, he kept the accelerator pedal floored and tried to push the 

Chevrolet out of his path, until he realized that his stolen truck was hopelessly entangled 

with the Chevrolet - at which point, Felber fled. 

                Felber's conduct demonstrates a level of blameworthiness far exceeding the 

conduct of the defendants in our other vehicular homicide decisions.  Even if Felber was 

not consciously trying to kill the police officers and civilians in his path, he consciously 

and callously placed them in great peril - almost as if he had used a firearm and had 

repeatedly fired random shots at a crowd. 

                The only prior   case   with arguably similar facts is Foxglove, where the 

defendant knowingly drove his snow machine into a group of people standing around a 

bonfire.    But even in Foxglove, the defendant engaged in only one such reckless act. 

Here, Felber repeatedly rammed his stolen truck into other vehicles and drove the truck 

toward the police officers who were attempting to apprehend him. 

                As we explained earlier, Judge Volland sentenced Felber to serve 25 years 

for the offense of second-degree murder - a sentence in the middle of the 20- to 30-year 

Page benchmark range for first felony offenders who engage in conduct that is typical 

for second-degree murder.  But Felber was a third felony offender, and his conduct was 

far from typical within the range of conduct encompassed by the second-degree murder 

statute.  We conclude that the circumstances of Felber's case would support a sentence 

substantially more severe than the Page benchmark range. 

                Felber was also convicted of four counts of first-degree assault, for causing 

serious injury to the drivers of four other vehicles.         Because Felber was a third felony 

offender, he faced a presumptive sentencing range of 15 to 20 years' imprisonment for 

each of these four offenses.        Judge Volland sentenced Felber to a total of 20 years to 

serve for all four of these first-degree assault counts.        In other words, Felber received a 

composite   sentence   for   his   four   first-degree   assault convictions   that was   within   the 

                                                -  14 -                                          2282
 

----------------------- Page 15-----------------------

normal sentencing range for a third felony offender convicted of a single count of first- 

degree assault. 

                The   foregoing   discussion   does   not   yet   take   account   of   Felber's   other 

offenses: his nine counts of third-degree assault (for placing four police officers and five 

civilians in danger of imminent serious physical injury), plus his other crimes of vehicle 

theft, driving under the influence, driving with his license revoked or suspended, eluding 

a police officer, and leaving the scene of an injury accident. 

                Along with the totality of Felber's conduct in the present case, we must 

consider his criminal record - which began when he was a juvenile.                      The fact that 

Felber had two prior felony convictions has already been factored into our analysis. 

However, the salient factor in Felber's past criminal record is the fact that he has twice 

previously engaged in vehicle theft and wantonly dangerous driving. 

                Given     the  totality   of  Felber's    conduct    in  this  case,  and   given    his 

background, we conclude that a sentence of 66 years to serve is not clearly mistaken. 

That is, the 66-year sentence is justifiable under the facts of Felber's case when those 

facts are assessed under the sentencing criteria codified in AS 12.55.005 and under this 

Court's prior sentencing decisions. 

        Conclusion 

                For the reasons explained here, we uphold Judge Volland's decision that 

Felber did not present adequate grounds for withdrawing from the plea agreement, and 

we further uphold Felber's composite sentence of 66 years to serve. 

                The judgement of the superior court is AFFIRMED. 

                                                -  15 -                                           2282
 
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