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Daniels v. State (12/12/2014) ap-2438

Daniels v. State (12/12/2014) ap-2438

                                                             NOTICE  

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                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



TEX D. DANIELS II,                                            )  

                                                              )            Court of Appeals No. A-11424 

                                      Appellant,              )            Trial Court No. 3AN-12-771 CR  

                                                              ) 

                  v.                                          )                         O P I N I O N  

                                                              )  

STATE OF ALASKA,                                              )  

                                                              ) 

                                      Appellee.               )            No. 2438 - December 12, 2014  

                                                              )  

        



                     Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                     Anchorage, Philip R. Volland, Judge.  



                     Appearances:   Kelly R. Taylor, Assistant Public Defender, and         

                     Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                     Ann B. Black, Assistant Attorney General, Office  of Special  

                     Prosecutions and Appeals, and Michael C. Geraghty, Attorney  

                                                                                 

                     General, Juneau, for the Appellee.  



                     Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                                      

                     District Court Judge.*  

                                                       



                     Judge ALLARD.  



     *     Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                     Tex D. Daniels II pleaded guilty to one consolidated count of first-degree  



           1                                                                                                      2 

assault  and one count of operating a vehicle under the influence of alcohol                                        for striking 



two pedestrians while driving under the influence.    At sentencing, Daniels asked the  



court  to  refer  his  case  to  the  statewide  three-judge  sentencing  panel  because  of  his  



extraordinary potential for rehabilitation and his exemplary post-offense conduct.  He  



also  argued  that  referral  to  the  three-judge  panel  was  warranted  because  a  sentence  



within the presumptive range would be manifestly unjust in his case.  



                     The superior court declined to refer Daniels's case to the three-judge panel,  

                             



and Daniels now appeals that decision. We affirm the superior court's judgment in most  

                                                                              



respects.  However, we conclude that additional clarification is needed regarding the  

                                 



judge's ruling that referral to the three-judge panel was not warranted based on the non- 

                                                                                           



statutory mitigating factor of extraordinary potential for rehabilitation.  We therefore  



remand the case for clarification of this issue.  



        Facts and proceedings  



                     In the early morning hours of New Year's Day, 2012, twenty-one-year-old  

                                                                          



Tex Daniels lost control of his truck while speeding in a residential area of Anchorage.  

                                                                                                         



He struck two pedestrians who were walking on the sidewalk.  He then attempted to flee  

                                                                           



the scene but hit a retaining wall and damaged his truck too much to continue driving.  

                              



Witnesses held Daniels at the scene until the police arrived and arrested him.  A blood  

                                                



      1    AS 11.41.200(a)(3).  



     2     AS 28.35.030(a)(2).  



                                                                  2                                                              2438  


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

test  administered  shortly  after  the  collision  showed  a  blood  alcohol  content  of  .226  

percent, almost three times the legal limit.3  



                    The pedestrians Daniels hit were a young couple, Clayton Wilbanks and  



Ashley Brotherton, who had recently moved to Alaska.  Wilbanks suffered a lacerated  



spleen  and  a  mild  traumatic  brain  injury,  but  he  made  a  full  physical  recovery.  



Brotherton was much more seriously injured - she suffered a fractured skull, neck, and  



hip, as well as a traumatic brain injury that required a month of hospitalization.  At the  

                                                                                                                       



time of sentencing, she continued to suffer severe nerve pain and fatigue that limited her  

                                                                                                



ability to work.  



                    Daniels was charged with two counts of first-degree assault, driving under  

                                       



the influence, and failure to render assistance at the scene of an accident.  These charges  

                                                    



were resolved in a plea agreement in which Daniels pleaded guilty to driving under the  

                                    



influence and one consolidated count of first-degree assault for knowingly engaging in  

                                                                               



conduct that resulted in serious physical injury under circumstances manifesting extreme  

                    

indifference to the value of human life.4  

                                                             Daniels's sentencing was left open.  



                                    

                    As a first felony offender, Daniels faced a presumptive range of 7 to 11  



                                                                                                          

years for the first-degree assault conviction.  Daniels asked the court to refer his case to  



                                                                              

the statewide three-judge sentencing panel based on the non-statutory mitigating factors  



of extraordinary potential for rehabilitation and exemplary post-offense conduct.  He also  



                                                                 

argued that referral to the three-judge panel was warranted because a sentence within the  



presumptive range would be manifestly unjust in his case.  



     3    Id.  



     4    AS 11.41.200(a)(3).  



                                                               3                                                            2438  


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

                       At the sentencing hearing, the State introduced evidence that Daniels had  



two prior convictions for minor consuming alcohol, one of which stemmed from an  



incident in which he was pulled over for speeding.  The sentencing court also heard  

                                                                                                                          



evidence that Daniels had an excellent work ethic, was genuinely remorseful, and had  

                                                                                                 



tried to make amends to Wilbanks and Brotherton.  



                       Both victims testified at the sentencing hearing.  Brotherton's testimony  



focused on the serious impact her injuries continued  to  have on her life.  Wilbanks  

                                                                                                     



testified  that  Daniels  had  reached  out  to  him  and  had  promised  to  fight  to  redeem  



himself.  Wilbanks recognized that Daniels faced a mandatory jail term but said he did  

                                                                                          



not believe Daniels should "rot in jail," both because Daniels had not committed the  



offense with malicious intent and because Daniels had since changed his life.  



                       Daniels also testified at the sentencing hearing.  He apologized to Wilbanks,  



Brotherton, and the police, and he offered to make any possible amends to the victims.  

                                                                                                



He said he had learned a lot about his alcohol problem through a treatment program and  

                                                                               



that he would never again cause a tragedy like this because he would never drink again.  

                                                                                 



                       Superior Court Judge Philip R. Volland began his sentencing remarks by  

                                                                                                               



noting that this was a "heartbreaking" case involving young victims whose lives had  

                                                                              



been irreparably damaged and a young offender whose sentence, even the one requested  

                                                                                               



by his own attorney, would be "harsh and life-altering." The judge ultimately concluded,  

                                                                                                 



however, that referral to the three-judge sentencing panel for consideration of a sentence  

                                       



below the presumptive range of 7 to 11 years was not warranted on any of the grounds  

                                         

advanced by Daniels.5  

                                        The judge then sentenced Daniels to a term at the low end of the  



      5     See AS 12.55.125(c)(2)(A) (providing that the presumptive term for a first felony   



offender convicted of a class A felony that resulted in serious physical injury or death is 7                                          

to 11 years).  



                                                                          4                                                                       2438  


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

presumptive range: 8 years with 1 year suspended (7 years to serve) for the consolidated   



assault,  and  72  hours,  consecutive,  for  driving  under  the  influence,  the  mandatory  

minimum sentence for that offense.6  



                                                               

                    Daniels appeals the decision to not refer his case to the three-judge panel.  



                                                                                                           

        Why  we  affirm  the  judge's  decision  not  to  refer  Daniels's  case  based  on  

       manifest injustice  



                                                                                                    

                    A sentencing court must refer a case to the three-judge sentencing panel in  



two circumstances:  (1) if the judge concludes that a sentence within the presumptive  

range would be manifestly unjust under the  Chaney sentencing criteria;7 and (2) if the  



                                                                                                              

defendant proves a non-statutory mitigating factor and the judge concludes that it would  



be  manifestly  unjust  to  fail  to  consider  that  non-statutory  factor  in  imposing  the  

defendant's sentence.8  



                                                                                                         

                    In addressing the first test - whether a sentence within the presumptive  



range would be manifestly unjust - Daniels's sentencing judge first considered the  



circumstances  that  placed  Daniels's  case  among  the  more  serious  cases  involving  

                                                                 



intoxicated drivers who caused serious physical injury.  The judge found that Daniels's  

                                                                        



level of intoxication was extremely high; that he was speeding in a residential area; that  



he attempted to leave the scene instead of rendering aid; that the accident occurred on  



New Year's Day when there was a high degree of public awareness about the dangers  



     6    AS 28.35.030(b)(1)(A).  



     7    See Lloyd v. State, 672 P.2d 152, 154-55 & n.3 (Alaska App. 1983) (citing State v.  



Chaney, 477 P.2d 441, 443-44 (Alaska 1970)).  



     8    See Garner v. State, 266 P.3d 1045, 1048 (Alaska App. 2011); Kirby v. State , 748  



P.2d 757, 765 (Alaska App. 1987).  



                                                               5                                                         2438
  


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

of drinking and driving; that, in his plea, Daniels admitted to a higher level of culpability                               

- extreme indifference to the value of human life - than was required to convict him;                                                                       9  



                                                                                                             

and that Daniels caused serious injuries to two people, one of whom easily could have  



died.  



                        The judge also considered the factors favorable to Daniels: he was a young  

                                                                                             



offender; this was his first felony offense; he had a good employment history and strong  

                                                                                                                              



family support; he had engaged in alcohol treatment after the offense; and "to his credit  

                                                               



has expressed as much remorse over the incident as I've seen a defendant express in the  

                                                                                                                                                    



time that I've been on the bench, at least ... for this kind of incident."  



                        In  addressing  the  Chaney  criteria,  the  judge  emphasized  community  



condemnation and reaffirmation of social norms, finding that these factors "edg[ed] out  

                                                                                          



rehabilitation as a priority in sentencing." Along these same lines, the judge placed more  

                                                                                                  



weight  on  general  deterrence  than  specific  deterrence,  concluding  that  Daniels  was  

                     



"unlikely to commit this kind of misjudgment again, ever."  



                        The judge also observed that the presumptive range Daniels faced for the  

                                                                                                                                       



consolidated first-degree assault offense was identical to the presumptive range for a  

driving under the influence offense that results in death,10  

                                                                                                                                 

                                                                                                        and the court noted that it was  



                                                                                                       

only  the  "breath  of  providence"  -  i.e.,  Brotherton's  survival  despite  very  serious  



injuries - that had prevented Daniels's crime from becoming a homicide.  



      9     See AS 11.41.200(a)(1) (defining the mental state required to convict a defendant of  



first-degree assault as recklessly causing serious physical injury to another by means of a   

dangerous instrument - in this case, a truck).  



      10    See  AS  11.41.120(b)   (manslaughter  is  a  class  A  felony);  AS  12.55.125(c)(2)(A)  



(presumptive range of 7 to 11 years applies to a class A felony that causes serious physical                          

injury or death).  



                                                                              6                                                                      2438
  


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

                   In light of all these considerations, the judge ultimately concluded that a  



sentence within the presumptive range would not be manifestly unjust.  



                   On appeal, Daniels argues that the sentencing court's legal analysis on the  

                                                                                                                   



manifest injustice prong was wrong and that its decision was clearly mistaken.   He  

                                                                        



asserts that the judge placed too much emphasis on the legislatively determined penalties  

                                              



for first-degree assault and manslaughter, and too little emphasis on the individualized  

                                                             



circumstances of this case. We disagree.  The judge made detailed findings regarding the  



circumstances that weighed in favor of a mitigated sentence and the contrary factors that  

                                                                                     



weighed in favor of a more severe sentence.  Although the judge's analysis of this issue  

                                                                                                              



could have been more clear, we conclude that the analysis was sound overall and that the  

                                                                                                            



judge's decision was not clearly mistaken.  



        Why we affirm the superior court's ruling on the non-statutory mitigating  

       factor of exemplary post-offense conduct and remand for clarification of the  

                                                                                          

       court's ruling on the non-statutory mitigating factor of extraordinary potential  

       for rehabilitation  



                   Daniels also asked the court to refer his case to the three-judge panel based  

on two non-statutory mitigating factors:  his exemplary post-offense conduct11 and his  



extraordinary potential for rehabilitation.12  

                                                               In assessing these claims, the judge was  



required to determine (1) whether Daniels had established either of these non-statutory  



                                                                                          

mitigating factors by clear and convincing evidence; and (2) if so, whether it would be  



manifestly unjust to fail to consider the non-statutory mitigating factor or factors in  



imposing  Daniels's  sentence.    Because  a  single  judge  who  finds  a  non-statutory  



     11   See State v. McKinney, 946 P.2d 456, 458 (Alaska App. 1997).  



     12   See Kirby v. State, 748 P.2d 757, 765 (Alaska App. 1987); Smith v. State, 711 P.2d  



561 (Alaska App.1985).  



                                                            7                                                         2438  


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

mitigating factor has no authority to impose a sentence below the presumptive range   



based on that factor, the judge must grant the defendant's request for referral to the three-          



judge panel unless the court concludes that "no adjustment to the presumptive [range]  

is appropriate in light of the factor."13  



                                                                          

                      Daniels argues that the superior court erred in concluding that he failed to  



                                                         

prove the non-statutory mitigating factor of exemplary post-offense conduct.  He relies  



                                                                                             

on State v. McKinney, where we found that the defendant established the non-statutory  



mitigating factor of exemplary post-offense conduct based on considerations that were  



"separate and logically distinct" from the defendant's potential for rehabilitation and that  

                       

had "significant potential to ameliorate the impact of the offense on the victim." 14  



                                     

                      Here, as the superior court found, there were clearly positive aspects of  



Daniels's  post-offense  conduct  that  were  directed  at  ameliorating  the  impact  of  the  



offense on the victims and the community.  Unlike most offenders, Daniels directly  



reached  out  to  the  victims  and  attempted  to  make  reparations  to  them  and  to  the  



community by speaking out about the dangers of drinking and driving.  But the majority  

                                                                                                                 



of the conduct that Daniels relied on to prove this non-statutory mitigating factor - e.g.,  

      



his successful completion of alcohol treatment and his full compliance with every aspect  

                                                                                             



of  his  pretrial  release  -  is  more  properly  viewed  as  actions  directed  toward  self- 

                                                                                                        



improvement and rehabilitation rather than actions directed towards others, as was the  

                                                                                                                          



case in McKinney .   Given this, we agree with the superior court that Daniels's post- 

                                 



offense  conduct  was  not  sufficiently  exemplary  to  establish  a  distinct  non-statutory  



mitigating factor, particularly since the court took account of the same conduct when it  



      13   Kirby , 748 P.2d at 765.  



      14   McKinney , 946 P.2d at 458.  



                                                                    8                                                                 2438  


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

addressed Daniels's proposed non-statutory mitigating factor of extraordinary potential  



for rehabilitation.  



                   This brings us to the court's ruling on the non-statutory mitigating factor  



of extraordinary potential for rehabilitation.  A defendant who asserts the non-statutory  

                                                                                           



mitigating factor of extraordinary potential for rehabilitation must prove by clear and  



convincing evidence that he or she "can adequately be treated in the community and need  



not be incarcerated for the full presumptive term in order to prevent future criminal  

activity."15  



                                                        

                   The sentencing judge's analysis of this issue is somewhat unclear.  As  



Daniels points out, the judge made some remarks suggesting that he did find this non- 



statutory mitigating factor:  the judge declared that Daniels's potential for rehabilitation  

                                         



was "great," and that Daniels was "unlikely to commit this kind of misjudgment again,  

                                                                                      



ever."  The judge also expressed concern that sentencing Daniels within the presumptive  



range was "throwing away a life worth saving" and that this decision "may end up being  



a burden on [the judge's] own soul that will erode [the judge's] conscience as time goes  

                                      



on."   And yet the judge's final statement on this issue was "I am not persuaded that ...  



I can find that [Daniels's] potential for rehabilitation is so extraordinary that it warrants  

                                                                                



referral to the three-judge panel[.]"  



                   Daniels reads this last statement as the judge's conclusion that he did not  

                                                                                                         



establish the non-statutory mitigating factor.  That reading is bolstered by the fact that,  

                                                                   



after making this finding, the sentencing court did not go on to separately analyze the  



second prong of the test - whether, having found the non-statutory mitigating factor,  

                                         



     15   Smith v. State, 258 P.3d 913, 917 (Alaska App. 2011) (quoting Beltz v. State , 980 P.2d  



474, 481 (Alaska App. 1999)) (other citations omitted).  



                                                              9                                                          2438  


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

it would be manifestly unjust to fail to make some adjustment, however small, to the  

sentence allowed by the presumptive sentencing range based on that factor.16  

                                                                                                                   



                                                     

                    The State urges us to read the judge's remarks as constituting alternative  



                                                                                                             

findings  -  that is, as  finding  that Daniels did  not have  extraordinary  potential  for  



rehabilitation but that, even if he did, it would not be manifestly unjust to fail to refer his  



case to the three-judge sentencing panel based on that factor. In support of this view, the  

                                                                                          

State  contends  that  the  superior  court's  lengthy  discussion  of  Bossie  v.  State 17  



demonstrates that the court applied a similar analysis in Daniels's case.  In Bossie , the  



                                                                                                   

superior court found that the defendant had extraordinary potential for rehabilitation but  

that referral to the three-judge panel was nevertheless not warranted.18  



                                                                      

                    But in Bossie , unlike in this case, the judge explicitly found that imposing  



a sentence below the presumptive range based on the non-statutory mitigating factor of  



extraordinary potential for rehabilitation would be manifestly unjust.  And we relied on  

                                                                                                       



that finding to uphold the judge's decision:  "Since [the judge] found that any reduction  

                                                                  



of the presumptive term would affirmatively create injustice (by yielding a sentence that  



would be clearly mistaken under  the  Chaney criteria), it necessarily follows that he  

                                                                      



believed there was no manifest injustice in failing to adjust the presumptive term for the  

                                                                                                                

non-statutory mitigator." 19  



     16   See Garner v State, 266 P.3d 1045, 1051 (Alaska App. 2001); Silvera v. State, 244  



P.3d 1138, 1149 (Alaska App. 2010).  



     17   835 P.2d 1257 (Alaska App. 1992).  



     18   Id. at 1258.  



     19   Id. at 1259 (emphasis added).  



                                                              10                                                         2438
  


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

                    Based our own review of the sentencing record, we cannot tell whether the                



judge found that Daniels established extraordinary potential for rehabilitation.  And if  



the judge did find that Daniels established this non-statutory mitigator, it is not clear that  

                                                                                                           



the court went on to consider whether it would be manifestly unjust to fail to make some  

                                                                            



adjustment, however small, to the presumptive range based on this factor.  Because we  

                                                                                                                 



cannot  ascertain  with  certainty  what  the  court's  analysis  was,  we  cannot  resolve  



Daniels's claim that the analysis was faulty.  



                    We therefore conclude that a remand for further clarification is needed.  

                                                                                                



Absent that clarification, we are reluctant to adopt a reading of the record that may not  

                                                                                                                        



be what the court intended.  In a case in which the sentencing court was so obviously  

                             



torn  as  to  whether  to  refer  sentencing  to  the  three-judge  panel,  we  are  particularly  

                  



hesitant  to  put  our  own  gloss  on  the  judge's  ambiguous  remarks.    As  we  have  



emphasized in prior cases, when the issue of manifest injustice is a close one, any doubt  

                                                                                                              



on the part of the superior court should be resolved in favor of referring the case to the  

                                                                                                                           

three-judge panel.20  



        Conclusion  



                    We REMAND the case for clarification of the court's ruling on whether  



Daniels established the non-statutory mitigating factor of extraordinary potential for  



                                                                           

rehabilitation and, if he did, whether it would be manifestly unjust to fail to make some  



adjustment, however small, to the sentence allowed by the presumptive sentencing law  



                                                              

based on that factor.  The superior court shall report to us within 90 days of the issuance  



of this opinion.  We retain jurisdiction of this case.  



     20   Harapat  v. State, 174 P.3d 249, 255-56 (Alaska App. 2007);                            Lloyd v, State , 672 P.2d  



 152, 155 (Alaska App. 1983).  



                                                                11                                                             2438  

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