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Trumbly v. State (9/2/2016) ap-2514

Trumbly v. State (9/2/2016) ap-2514

                                                     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
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DAVID HENRY TRUMBLY JR.,  

                                                                    Court of Appeals No. A-11822  

                                    Appellant,                    Trial Court No. 3KN-12-904 CR  



                           v.  

                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                    Appellee.                      No. 2514 - September 2, 2016  



                  Appeal f          

                             rom the District Court, Third Judicial District, Kenai,  

                  Matthew Christian, Magistrate Judge.  



                  Appearances:  Lars  Johnson,  Assistant  Public  Defender,  and  

                                             

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

                              

                  Samuel D. Scott, Assistant District Attorney, Kenai (briefing),  

                  John Skidmore, Division Director, Criminal Division Central  

                  Office,  Anchorage  (oral  argument),  and  Craig  W.  Richards,  

                                                                                       

                  Attorney General, Juneau, for the Appellee.  



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

                                                                

                  Superior 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-----------------------

                                                         A jury convicted David Henry Trumbly Jr. of driving under the influence                                                                                                                                                                                                      



 and refusal to submit to a chemical test.  At sentencing, the court initially imposed the                                                                                                                                                                                            



 mandatory minimum fine of $1,500 for each offense concurrent to one another.                                                                                                                                                                                                                                                                    A few   



 days later, the court amended the judgment to impose the fines consecutively (for a total                                                                                                                                                                                                                                                            



 fine of $3,000) after the State argued that the court had no authority to impose the fines                                                                                                                                                                                                                                                              



 concurrently.  



                                                         Trumbly now appeals, arguing that the original judgment was a valid final                                                                                                                                                                                                                        



judgment   and   the   court's   actions   therefore   violated   the   prohibition   against   double  



jeopardy.   For the reasons explained here, we agree with Trumbly and conclude that                                                                                                                                                                                                                                                                          



 sentencingcourtshavethediscretion                                                                                                                      to imposethesefines consecutively or concurrently.                                                                                                                                                                       



 We accordingly remand this case to the district court and direct the court to correct the                                                                                                                                                                                                                                                                      



judgment to reflect the court's initial imposition of concurrent fines.                                                                                                                                                                                                  



                                                         Trumbly also argues that the police did not have probable cause to arrest                                                                                                                                                                              



 himfor                         driving under the influence. Having                                                                                                                     reviewed the record, we find no merit to this  



 claim.   We therefore affirm Trumbly's convictions.                                                                                                                  



                              Why we conclude that the original judgment was lawful                                                                                                                                                          



                                                         Under Alaskalaw, a                                                              person convicted ofrefusal to submit to a chemical test                                                                                                                                                                                 



 is subject to the same mandatory minimum criminal penalties as a person convicted of                                                                                                                                                                                 



                                                                                                                                                                                       1  

 the underlying driving under the influence.                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                              A first conviction for either driving under  



                                                                                                                                                                                                                                                                                                                            

 the influence (DUI) or refusal to submit to a chemical test (refusal) requires a mandatory  



                                                                                                                                                                                                                                                                                                                                

 minimum term of imprisonment of 72 hours, a mandatory minimum license revocation  



                                                                                                                                                                                                                                     2  

                                                                                                                                                                                                                                                                                                                                                     

 of 90 days, and a mandatory minimum fine of $1,500.                                                                                                                                                                                         A second conviction for either  



                1            See AS 28.35.030(b); AS 28.35.032(g). 
 



               2             AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(1).
  



                                                                                                                                                                             - 2 -                                                                                                                                                                   2514
  


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

offense requires a mandatory minimum term of imprisonment of 20 days, a mandatory                                                    



                                                                                                                                                     3  

minimum license revocation of 12 months, and a mandatory minimum fine of $3,000.                                                                         



                                                                                                                      4  

                                                                                                          

A third conviction for either offense generally qualifies as a felony. 



                                                                                                                                 

                       A  subsection  of  the  refusal  statute,  AS  28.35.032(g)(5),  additionally  



                                                                                                                                              

requires that the mandatory minimum sentence imposed for the refusal conviction "shall  



                                                                                                                                                     5  

                                                                                                                                       

run consecutively with any other sentence of imprisonment imposed on the person." 



                                                                                                                                                    

Thus, in cases where the defendant is convicted of both refusal and DUI arising out of  



                                                                                                                                                         

the same incident, the mandatory termof imprisonments must be imposed consecutively.  



                                                                                                                                        

                       BecausethesewereTrumbly's first offenses for drivingunder theinfluence  



                                                                                                                                                  

and refusal to submit to a chemical test, he faced the mandatory minimum penalties for  



                                                                                                                                       

a first time offender. At sentencing, the judge imposed the 72-hour mandatory minimum  



                                                                                                                                                         

termofimprisonment for eachoffenseconsecutively, asrequired byAS28.35.032(g)(5),  



                                                                                                                       

but imposed the mandatory minimum license revocations and fines concurrently.  



                                                                                                                                          

                       In response, theprosecutor filed amotion asserting that Alaskalawrequired  



                                                                                                                                                    

consecutive mandatory minimum fines for driving under the influence and refusal to  



                                                                                                                                                

submit  to  a  chemical  test.                     The  district  court  ultimately  agreed  with  the  State  and  



                                                                                                                                      

modifiedTrumbly'sjudgmentto imposethefines consecutively, resulting in acomposite  



                                                         

fine of $3,000 ($1,500 for each offense).  



                                                                                                                                               

                       Trumbly argues that the court erred in concluding that consecutive fines  



                                                                                                         

were required by law.  Because this question hinges on our construction of the Alaska  



                                                                        6  

                                                               

statutes, we review the question de novo. 



      3     See AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(2).  



      4     See AS 28.35.030(n); AS 28.35.032(p).  



      5     AS 28.35.032(g)(5) (emphasis added).  



      6     See Wilson v. State Dept. of Corrections, 127 P.3d 826, 829 (Alaska 2006)   (We  



                                                                                                                                 (continued...)  



                                                                       - 3 -                                                                 2514
  


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

                           On   appeal,   the   State   acknowledges   that   AS   28.35.032(g)(5)   does   not  



require the sentencing court to impose consecutive fines.                                                            This subsection only requires               



the court to impose consecutive "sentences                                                   of imprisonment." And, as our caselaw                              



demonstrates, "sentences of imprisonment" refer to terms of imprisonment and do not  



refer to the other penalties for driving under the influence and refusal, such as license                                                                          

revocations and monetary fines.                                  7  



                                                                                                                                                         

                           The State argues instead that the court was required to impose consecutive  



                                                                                                                                                                   

fines under AS 28.35.032(g)(2)(A), a different statutory subsection within the refusal  



                                                                                                                                                                        

statute.  This subsection provides that, upon conviction under the refusal statute, "the  



                                                                                                                                                                           

court may not ... suspend execution of the sentence ... or grant probation except on  



                                                                                                                                                              

condition that the person ... serve the minimum imprisonment ... [and] pay the minimum  



fine."  



                                                                                                                                             8  

                                                                                                                                                                  

                           The DUI statute contains a nearly identical provision.                                                                 Alaska Statute  



                                                                                                                                                                

28.35.030(b)(2)(A) states that, upon conviction for DUI, "the court may not ... suspend  



                                                                                                                                                                           

execution of sentence or grant probation except on condition that the person ... serve the  



                                                                                                                    9  

                                                                                                          

minimum imprisonment ... [and] pay the minimum fine." 



       6      (...continued)  



construe a statute "according to reason, practicality, and common sense, considering the                                                                                   

meaning of its language, its legislative history, and its purpose."                                                            );  State v. McCallion, 875  

P.2d 93, 98 (Alaska App. 1994).  



       7      Snyder v. State, 879 P.2d 1025, 1030 (Alaska App. 1994), rev'd on other grounds, 930  

                                                                                                                                        

P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008).  



       8      See AS 28.35.030(b)(2)(A)(i) - (ii).  



       9     Id.  



                                                                                   - 4 -                                                                             2514
  


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

                      These provisions were amended to their current form in 2005 to change the                                              



                                                                               10  

result that this Court reached in                     Curtis v. State.                               

                                                                                    In Curtis, we addressed the question  



                                                                                                                                           

of whether a sentencing court had the authority to suspend the mandatory minimum fine  



               11  

                                                                                                                                       

                    At the time, the DUI statute and the refusal statute both prohibited courts  

for DUI. 



                                                                                                                                 

from suspending the mandatory minimum term of imprisonment for persons convicted  



                            12  

                                                                                                                                             

of either offense,              but the statutes said nothing about a court's authority to suspend the  



                                             13  

                                                                                                                              

mandatory  minimum fine.                           We  held  that,  in  the  absence  of  a  statute  specifically  



                                                                                                                                

prohibiting sentencing courts fromsuspending the mandatory minimumfine, sentencing  



                                                                                                                      

courts retained that power - because, under AS 12.55.080 and AS 12.55.015(a)(7),  



                                                                                                                14  

                                                                                              

courts are granted the general authority to suspend any "sentence." 



                                                                                                                               

                      In  2005,  in  a  long-delayed  response  to  Curtis,  the  Alaska  legislature  



                                                                                                                                            

amended  the  DUI  and  refusal  statutes  to  also  prohibit  courts  from suspending  the  



                                                                                  15  

                                                                                                                              

mandatory  minimum  fines  for  these  offenses.                                         The  sponsor  of  the  legislation,  



                                                                                                                                            

Representative Norman Rokeberg, told legislators during committee debate on the bill  



                                                                                                                               

that the criminal courts, particularly the courts in Juneau, had been routinely suspending  



                                                                                                                                              

mandatory minimum fines in DUI cases, and that his bill was aimed at putting an end to  



      10   831 P.2d 359 (Alaska App. 1992).  



      11   Id.  



      12   See  AS 28.35.030(b)(2)(A)(i) & (n)(2)(A)(i); AS 28.35.032(g)(2)(A)(i) & (p)(2)-  



(A)(i).  



      13   See  former AS 28.35.030(b)(2) & (n)(2) (pre-July 14, 2005 version).   The refusal  

                                                                                                                               

statute was identical in relevant respects.  See former AS 28.35.032(g)(2) & (p)(2) (pre-July  

                                                                   

14, 2005 version).  



      14   Curtis, 831 P.2d at 360-61.  



      15   Ch. 68,  1 (adding AS 28.35.030(b)(2)(A)(ii)),  4 (adding AS 28.35.032(g)(2)(A)- 

(ii)), SLA 2005; see also House Bill 136, 24th Leg., 1st Sess. (2005) (as introduced).  



                                                                    - 5 -                                                               2514
  


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

                     16  

that practice.           Representative Rokeberg explained that the bill would "basically repeal"                               

 Curtis.17  



                                                                                                                        

                      The State argues that the 2005 legislation was also aimed at eliminating  



                                                                                                                                       

judicial  authority  to  impose  the  mandatory  minimum  fine  concurrently  with  a  



                                                                                                                                      

defendant's fines for any other offenses, particularly the mandatory minimum fines for  



                                                                                                                               

refusal.  But neither the plain language of the amendments nor the legislative history  



                       

 supports this claim.  



                                                                                                                                   

                      The2005 legislation made it clear that courts could no longer suspend these  



                                                                                                                                        

mandatory minimum fines, but it said nothing about whether the court was required to  



                                                                                                                                      

impose these fines concurrently or consecutively to other fines.  Significantly, after we  



                                                                                                              

decided Curtis in 1992, but before the 2005 legislation, we decided Snyder v. State, in  



                                                                                                                                     

which we upheld the authority of the courts to impose mandatory minimum fines and  



                                                                                                              

license revocation penalties concurrently in cases where defendants were convicted of  



                                    18  

                                                                                                                                      

                                        But there was no discussion of overruling Snyder during the  

both DUI and refusal. 



                                                                                                                               

committee debate of the 2005 bill.  Nor was there any attempt to modify AS 28.35.- 



                                                                                                                        

032(g), the statutory provision in the refusal statute that directly addresses consecutive  



                                                                       

and concurrent sentencing in these types of cases.  



                                                                                                                                     

                      For  these reasons,  we conclude that Alaska law does  not  prohibit the  



                                                                                                                                      

concurrent imposition of mandatory minimum fines when a defendant is sentenced for  



                                                                                                                            

both driving under the influence and refusal. Thus, the district court's original judgment  



      16   See    Minutes   of    Senate   Finance   Committee,   House   Bill    136,    statement   of  



Representative Norman Rokeberg (May 1, 2005, at 2:46:58 p.m.).  



      17   Id .  



      18  

                                    

           Snyder v. State, 879 P.2d 1025,1030 (Alaska App.1994), rev'd on other grounds, 930  

P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008)  

(affirming in dicta court's authority to impose fines and license revocations concurrently).  



                                                                 - 6 -                                                           2514
  


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

in this case was lawful, and the court violated the prohibition against double jeopardy                                                                          



when the court modified the judgment to Trumbly's detriment by imposing the fines                                                                                        

consecutively.19  



              Why we conclude that the police had probable cause to arrest Trumbly  

                                                                                                                                                



                            Trumbly also argues that the police lacked probable cause to arrest him for  

                                                                                                                                                                             



driving under the influence, and that the district court therefore erred in denying his  

                                                                                                                                                                            



motion to suppress.  We find no merit to this claim.  

                                                                                              



                            The district court held an evidentiary hearing on Trumbly's suppression  

                                                                                                                                                          



motion and, based on the evidence presented at that hearing, made detailed factual  

                                                                                                                                                                    



findings.  Trumbly does not challenge any of the court's factual findings; instead, he  

                                                                                                                                                                              



argues that those findings were insufficient to support the court's legal conclusion that  

                                                                                                                                                                           



there was probable cause for his arrest.  In particular, Trumbly contends that the police  

                                                                                                                                                                      



had no evidence that he drove erratically or performed poorly on field sobriety tests.  

                                                                                                                                                                                     



(Trumbly declined to perform field sobriety tests.)  

                                                                                             



                            Evidence of field sobriety tests or poor driving is not invariably required  

                                                                                                                                                                  



to support an arrest for driving under the influence.  Rather, probable cause for an arrest  

                                                                                                                                                                        



exists if the police are aware of facts and circumstances that, taken together, warrant a  

                                                                                                                     

reasonable belief that an offense has been or is being committed.20  

                                                                                                                                                                         

                                                                                                                                          We review de novo  



                                                                                                                                                                              21  

                                                                                                                                                                  

the legal question of whether a trial court's findings of fact establish probable cause. 



       19     Love v. State , 799 P.2d 1343, 1345 (Alaska App. 1990) ("The double jeopardy clause   



of the Alaska Constitution prevents an increase in any sentence that has been 'meaningfully                

imposed.'").  



       20     Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).  



       21     Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).  



                                                                                    - 7 -                                                                              2514
  


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

                    Here, the district court found that a gas station clerk called the Kenai Police  

                                                                                                                           



Department to report that a man who appeared to be intoxicated had just driven away  

                                                                                                                            



from the station.  The clerk provided a description of the vehicle and the driver, as well  

                                                                                                                             



as the vehicle license plate number.  Police dispatch relayed this information to police  

                                                                                 



officers in the field, and informed themthat the vehicle was registered to David Trumbly,  

                                                                                                                      



who lived nearby. About five minutes later, the officers arrived at Trumbly's apartment  

                                                                                                                     



complex and saw a vehicle matching the clerk's description. The vehicle's hood was still  

                                                                                                                               



warm.  

             



                    When the officers knocked on Trumbly's door, Trumbly answered, and he  

                                                                                                                                



matched  the  physical  description  given  by  the  service  station  clerk.                                   The  officers  

                                                                                                                        



observed that Trumbly smelled strongly of alcohol, that his eyes were bloodshot and  

                                                                                                                              



glossy, and that his speech was thick.  When the officers asked Trumbly how he was  

                                                                                                                              



doing, he replied, "Drunk off my ass." Trumbly had an open beer bottle in his hand, but  

                                                                                                                               



the bottle was almost full and Trumbly was already visibly intoxicated.  

                                                                                           



                    We agree with the district court that these facts gave the police probable  

                                                                                                                      



cause to arrest Trumbly for driving under the influence.  

                                                                      



          Conclusion  



                    We  AFFIRM Trumbly's  convictions.                            We  VACATE  the  provision  of  

                                                                                                                                



Trumbly's judgment that imposes consecutive fines, and we direct the district court to  

                                                                                                             



impose the fines concurrently, in accordance with the district court's initial sentencing  

                                                                                                                    



decision.  We do not retain jurisdiction of this case.  

                                                                        



                                                              - 8 -                                                        2514
  

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