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Bottcher v. State (9/2/2011) ap-2324

Bottcher v. State (9/2/2011) ap-2324

                                                  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
 
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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

EUGENE F. BOTTCHER,                                ) 
                                                   )        Court of Appeals No. A-10660 
                             Appellant,            )        Trial Court No. 4FA-05-1624 CR 
                                                   ) 
              v.                                   )                   O P I N I O N 
                                                   ) 
STATE OF ALASKA,                                   ) 
                                                   ) 
                             Appellee.             )          No. 2324 - September 2, 2011 
                                                   ) 

                 Appeal      from   the   Superior    Court,    Fourth   Judicial    District, 
                 Fairbanks, Douglas L. Blankenship, Judge. 

                 Appearances: Dave   Reineke, Assistant Public   Defender,   and 
                 Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                 Scott   Mattern,   Assistant   District   Attorney,   J.   Michael   Gray, 
                 District    Attorney,    Fairbanks,     and   John   J.  Burns,    Attorney 
                 General, Juneau, for the Appellee. 

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

                 COATS,      Chief Judge. 

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

               Eugene F. Bottcher entered a plea of no contest to manslaughter, assault in 
the third degree, and failure to render assistance to an injured person after an accident.1 

Superior   Court   Judge   Douglas    L.   Blankenship   sentenced   Bottcher   to   a   composite 

sentence    of  twenty-three    years  with   three  years  suspended.      In  addition,  Judge 

Blankenship revoked Bottcher's driver's license for life.   Bottcher appeals, arguing that 

his sentence is excessive.    We affirm. 

               Factual and procedural background 

               We previously considered Bottcher's sentence in an unpublished decision.2 

In that decision, we set out the facts of the case as follows: 

                      On    May    23,   2005,   outside  of  Fairbanks,  Bottcher 
               drove his vehicle off Goldstream Road and crashed into 13 
               year-old Saul Stutz, who was on his bicycle waiting to cross 
               at an intersection.   Stutz was mortally injured.     In addition, 
               Bottcher nearly hit Stutz's nine-year-old brother who was 
               nearby.   Bottcher drove away without stopping. 

                       Stutz was taken to Fairbanks Memorial Hospital and 
               then transferred to Anchorage.      He died about a day later. 

                      When      the  State  later  obtained  a  breath  test  from 
               Bottcher, he had a blood alcohol level of .237.         Witnesses 
               who saw Bottcher drinking heavily at local bars before the 
               crash confirmed that Bottcher was intoxicated. 

                      Dale Pomraning was driving in the other direction at 
               the scene of the crash and saw Bottcher leave the scene after 
               he ran down Stutz.     Pomraning stopped briefly to check on 

        1  AS 11.41.120(a)(1), AS 11.41.220(a)(1)(A), and AS 28.35.060(c), respectively. 

       2   Bottcher v. State, Alaska App. Memorandum Opinion and Judgment No. 5435 (Jan. 

28, 2009), 2009 WL 226010. 

                                              - 2 -                                      2324 

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

        the   boys,   and   then   he   chased   after   Bottcher,   driving   "flat 
        out."   Eventually he caught up to Bottcher, who was behind 
        two other vehicles.       Pomraning passed Bottcher, pulled in 
        front    of  him,   and   eventually    stopped    him   by   gradually 
        slowing down.   Pomraning then confronted Bottcher, telling 
        Bottcher     that   he   had  run  down    a  boy  and   insisting   that 
        Bottcher return to the scene. Bottcher agreed to return, but he 
        again drove further away from the scene. 

                Once     again,   Pomraning      gave   chase,   and   followed 
        Bottcher     for  several    miles   to  Bottcher's    home.     When 
        Pomraning again confronted Bottcher, Bottcher offered a wad 
        of cash to Pomraning, twice telling Pomraning, "Aw, forget 
        it."  Bottcher   admitted   he   was   drunk,   and   went   inside   his 
        home. 

                Pomraning blocked Bottcher's vehicle with his own, 
        walked to a nearby house, and contacted the state troopers. 
        The troopers arrived shortly thereafter and arrested Bottcher. 

                Bottcher had no prior convictions for driving under the 
        influence but had a 40-year history of alcohol dependence. 
        He admitted that he routinely drove when he was intoxicated. 

                The grand jury indicted Bottcher for failing to render 
        assistance      to   an    injured    person     after   an    accident, 
        manslaughter,       third-degree    assault,  and   interference    with 
        official proceedings. 

                The parties reached a plea agreement. Bottcher agreed 
        to    plead    no   contest    to   failure   to  render     assistance, 
        manslaughter, and third-degree assault, and the State agreed 
        to dismiss the charge of interference with official proceedings 
        and a misdemeanor charge of driving under the influence. 
        There was no agreement regarding the sentence.3 

3   Id. at *1 (citations omitted). 

                                         - 3 -                                           2324 

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

                 The original sentencing was conducted by Superior Court Judge Charles 

Pengilly.     In sentencing Bottcher, Judge Pengilly found that Bottcher had acted with 

extreme indifference to the value of Stutz's life and that Bottcher was a worst offender 
who deserved the maximum sentence.4              He imposed a composite sentence of thirty-five 

years with fifteen years suspended, twenty years to serve. 

                 Bottcher appealed his sentence.   On appeal, the State conceded that Judge 

Pengilly had imposed an illegal sentence because he had imposed a sentence that would 

have been authorized only if the court had found aggravating factors. Judge Pengilly had 
not found any aggravating factors.5 

                 We remanded the case to the superior court.   Judge Pengilly had retired, so 

the case was assigned to Superior Court Judge Mark I. Wood.                     Judge Wood modified 

Bottcher's sentence by eliminating the suspended time for manslaughter and assault in 

the third degree, which had been illegally imposed.               Other than that, he left Bottcher's 

sentence unchanged.         Bottcher's composite sentence was thus twenty-three years with 

three years suspended. 

                 On appeal, we pointed out that Bottcher's sentence exceeded the sentences 
that this court had previously approved for motor vehicle manslaughter.6                 We recognized 

that   most   of   those   reported   cases   were   decided   before   the   legislature   amended   the 

sentencing law to increase the presumptive sentencing range for a first felony offender 

convicted of manslaughter from five years to a sentencing range of seven to eleven years. 

        4   Id. at *2. 

        5   Id. 

        6   Id. at *4. 

                                                   - 4 -                                            2324 

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

But   we   concluded   that   the   superior   court   had   not   sufficiently   justified   Bottcher's 
sentence in light of our prior cases.7        We remanded the case for reconsideration.8 

                 The case was assigned to Superior Court Judge Douglas L. Blankenship. 

In    sentencing     Bottcher,     Judge    Blankenship       first  observed      that  motor     vehicle 

manslaughter caused by driving under the influence of alcohol occurred with alarming 

frequency and had tragic consequences.   He concluded that the sentencing court needed 

to send a strong message that this conduct would not be tolerated and would be severely 

punished. 

                 Judge   Blankenship   found   that   Bottcher   had   a   long   history   of   alcohol 

dependence that dated back to Bottcher's adolescence. During his lifetime, Bottcher had 

failed to gain control of his alcohol dependence. Judge Blankenship observed that, at the 

time of the offense, Bottcher had an extremely high blood alcohol level, .237 percent. 

In spite of this extreme impairment, Bottcher chose to drive.   As a result, Botcher struck 

Saul   Stutz   and   narrowly   missed   Gabriel   Stutz.      Judge   Blankenship   found   that   the 

evidence showed that Bottcher was aware that he struck a child, and yet he left the scene. 

A short time later, Bottcher was twice confronted by Dale Pomraning, who attempted to 

get him to return to the scene.  Instead, Bottcher offered money to Pomraning and went 

inside his home.       Judge Blankenship concluded that Bottcher's actions demonstrated 

extreme indifference to the value of Saul Stutz's life. He pointed out that Judge Pengilly 
had reached the same conclusion.9           Judge Blankenship also considered the sentence in 

light of our prior case law. 

        7   Id. at *5. 

        8   Id. at *6. 

        9   Id. at *2. 

                                                   - 5 -                                           2324 

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

                Judge Blankenship concluded that these findings justified imposing a term 

of eleven years of imprisonment for manslaughter, the top of the presumptive range.  He 

then considered the charge of assault in the third degree:             the assault on Gabriel Stutz. 

He observed that the sentencing range was zero to two years.  He observed that Bottcher 

narrowly missed Gabriel, and Gabriel "saw his brother either get hit or shortly after saw 

the results of [Bottcher's] actions."        He concluded that this justified a sentence of two 

years of imprisonment, the top of the presumptive range. 

                Judge Blankenship then turned to the offense of failure to render assistance 

to an injured person after an accident.          Judge Blankenship observed that this offense is 

a   non-classified   felony   with   a   maximum   term   of   ten   years   of   imprisonment.        He 

analogized the offense to a class B felony, which also has a maximum term of ten years 

of imprisonment.   He observed that, if failure to render assistance was a class B felony, 

Bottcher would be subject to a presumptive range of one to three years.                      But Judge 

Blankenship   concluded   that   striking   a   thirteen-year-old   boy   and   leaving   him   to   die 

constituted an exceptional circumstance and was the most serious conduct included in 
the definition of the offense.10        He imposed a sentence of ten years with three years 

suspended.  Judge Blankenship imposed all of these sentences consecutively to each 

other,   resulting   in   a   term   of   imprisonment   of   twenty-three   years   with   three   years 

suspended (the same term Judge Wood had imposed). 
                Judge Blankenship also revoked Bottcher's license for life.11              In imposing 

the lifetime license revocation, he considered Bottcher's life-long alcohol dependence 

and the circumstances of his current offenses.   He concluded that Bottcher was a danger 

        10  See AS 12.55.155(c)(10). 

        11  See AS 28.15.181. 

                                                  - 6 -                                           2324 

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

to the public when he was driving and that Bottcher's history of alcohol dependence 

established that there was a substantial risk that he would continue to be a danger after 

he was released. 

               We conclude that the sentence Judge Blankenship imposed was not clearly 
mistaken.12   We recognize that the sentence is at the top of the range of sentences that 

have previously been imposed for vehicular homicides.13           But we conclude that Judge 

Blankenship's findings are supported by the record and support the severe sentence that 

he imposed.    Bottcher was highly intoxicated and yet chose to drive.           He struck Saul 

Stutz and narrowly missed Gabriel Stutz.  In spite of the fact that he knew he struck Saul, 

a young boy of thirteen, Bottcher fled from the scene, leaving Saul to die.           In spite of 

being aggressively pursued by Pomraning, who demanded that Bottcher return to the 

scene,   Bottcher   refused   to  return,   offered  Pomraning   money,   and   retreated  to  his 

residence.     Judge    Blankenship    could   properly   determine    that  the  extreme    facts 

surrounding this incident justified the sentence he imposed. 

               In revoking Bottcher's driver's license, Judge Blankenship recognized that 

a lifetime revocation is the kind of punishment reserved for offenders "whose records 
demonstrate that they never should be allowed to drive a motor vehicle again."14              He 

considered     Bottcher's   long  history  of  alcohol  dependence     and   the  seriousness   of 

Bottcher's current offenses in deciding that a lifetime revocation was necessary to protect 

the public.  We conclude that Judge Blankenship's decision was not clearly mistaken. 

        12 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). 

        13 See Bottcher, 2009 WL 226010 at *4-5. 

        14 Fine v. State, 22 P.3d 20, 24 (Alaska App. 2001). 

                                              - 7 -                                      2324 

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

Conclusion 

The judgment of the superior court is AFFIRMED. 

                              - 8 -                                      2324
 
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