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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bottcher v. State (5/10/2013) sp-6781
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
EUGENE F. BOTTCHER, )
) Supreme Court No. S-14460
Petitioner, ) Court of Appeals No. A-10660
)
v. ) Superior Court No. 4FA-05-01624 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6781 - May 10, 2013
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks, Douglas
Blankenship, Judge.
Appearances: David Reineke, Assistant Public Defender,
Anchorage, and Quinlan Steiner, Public Defender,
Anchorage, for Petitioner. Diane L. Wendlandt, Assistant
Attorney General, Office of Special Prosecutions & Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Respondent.
Before: Fabe, Chief Justice, Carpeneti and Stowers, Justices.
[Winfree and Maassen, Justices, not participating.]
STOWERS, Justice.
I. INTRODUCTION
In May 2005 an intoxicated Eugene Bottcher drove his vehicle off the road,
hitting a boy and narrowly missing the boy's brother. The boy who had been hit later
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died at the hospital from his injuries. After Bottcher hit the boy, he continued to drive,
and when stopped by a passerby who had witnessed the accident, Bottcher tried to bribe
him into not reporting the crime.
Bottcher pleaded no contest to manslaughter, assault in the third degree, and
failure to render assistance. The superior court sentenced Bottcher to a term of 23 years
with 3 years suspended. The court also revoked Bottcher's driver's license for life. The
court of appeals affirmed Bottcher's sentence and the lifetime revocation of his license.
In his petition to this court, Bottcher argues that the lifetime revocation was excessive.
We hold that the trial court was not clearly mistaken in finding that Bottcher's case was
an extreme one in which a lifetime revocation of his driver's license was required to
protect the public. We therefore affirm the decision of the court of appeals, which
affirmed the superior court's lifetime revocation of Bottcher's driver's license.
II. FACTS AND PROCEEDINGS
A. Facts
Around 9:00 p.m. on May 23, 2005, in Fairbanks, an intoxicated 61-year-
old Eugene Bottcher drove his pickup westbound on Goldstream Road after having spent
the afternoon and evening drinking heavily at local bars. Two boys, 13-year-old Saul
Stutz and his brother 9-year-old Gabe Stutz, were riding bicycles in the grass along the
roadside ditch. As Bottcher approached, his vehicle left the road and struck Saul from
behind, critically injuring him and narrowly missing Gabe. Without stopping, Bottcher
drove his truck out of the ditch and back onto the road.
The accident was witnessed by Dale Pomraning, who was driving in the
opposite direction on the same road. After checking on the boys and calling for help,
Pomraning followed Bottcher in his vehicle. Pomraning eventually stopped Bottcher at
a greenhouse off the side of the road. Pomraning told Bottcher that he had struck a boy
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and demanded that Bottcher return to the scene of the accident. Bottcher initially agreed
to return, but when Bottcher got into his truck, he began driving in the opposite direction.
Pomraning continued to follow, and Bottcher eventually pulled his truck
into the driveway of a residence and stopped. When Pomraning again told Bottcher that
he had hit a boy, Bottcher offered Pomraning a bundle of bills from his pocket, saying
"aw, forget it," but Pomraning refused the money. Pomraning asked Bottcher to turn
himself in to the police, but Bottcher refused. Pomraning could smell liquor on Bottcher,
and he noticed that Bottcher was stumbling and slurring his speech, and had watery eyes.
When Pomraning asked, Bottcher admitted he was drunk. Bottcher then walked away
into a trailer, saying that he would take care of it the next day. Pomraning positioned his
vehicle so that Bottcher could not drive away and then walked to a nearby house to call
the police, who later arrested Bottcher without incident. A breath test administered to
Bottcher at the police station registered a blood-alcohol content of approximately .237
percent. During an interview with police the following day, Bottcher admitted to
knowing he struck Saul with his truck.
Saul was transported to a local hospital and then flown to Anchorage. He
died from his injuries the next day.
Prior to the accident, Bottcher had had only one conviction, a drug offense
in the 1970s, and no traffic offenses. However, he had a long history of alcohol use and
dependency. Bottcher had regularly used alcohol as an adult, with only one year of
sobriety occurring in the late 1970s. Bottcher stated that he began to drink more heavily
in 2000 and began to lose control of his drinking in 2004 as a result of increased anxiety
and depression due to financial difficulties. During 2004 he was increasingly breaking
self-imposed rules regarding his drinking. He had been prescribed both Paxil and
Prozac, but due to the negative side effects of mixing those medications with alcohol, he
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chose to stop taking the medicine rather than quit drinking. Several of Bottcher's friends
stated that he found his primary social outlet in bars. Bottcher had a habit of stopping
by bars on his way home following the afternoon union call. Although Bottcher stated
that when he drank he usually took a taxi or rode with friends, one friend stated that he
had offered Bottcher rides on several occasions but could not recall Bottcher ever
accepting the offers.
After the accident, a licensed clinical social worker interviewed Bottcher
and concluded that Bottcher met the criteria for alcohol dependence. Several of
Bottcher's friends also stated that he had a serious problem with alcohol. Bottcher
himself acknowledged that he had become involved in a serious struggle with alcohol,
the demands of which were beyond his capabilities. He also acknowledged that he was
aware of the risks of drinking and driving, that drunk driving was a very serious problem
in the Fairbanks area, and that he was part of the problem.
B. Proceedings
Following the accident, the State charged Bottcher with five counts: failure
to render assistance, interfering with official proceedings, manslaughter, assault in the
third degree, and driving under the influence.1 As part of a plea agreement, Bottcher
pleaded no contest to manslaughter, third-degree assault, and failure to render assistance.
The State dismissed the other two counts. Bottcher was initially sentenced by Superior
Court Judge Charles R. Pengilly, who found that Bottcher had acted with extreme
indifference to the value of Saul's life and that Bottcher was a "worst offender" who
deserved the maximum sentence. Judge Pengilly imposed a composite 35-year term with
15 years suspended, a net 20-year term to serve, and revoked Bottcher's driver's license
1 AS 28.35.060(c), AS 11.56.510, AS 11.41.120(a)(1),
AS 11.41.220(a)(1)(A), and AS 28.35.030(a)(1), respectively.
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for life. With respect to the license revocation, Judge Pengilly stated, "I hope I don't
have to explain why I'm going to revoke Mr. Bottcher's license for life. I don't think
that requires any explanation or any further development."
Bottcher appealed his sentence.2 The court of appeals remanded the case
for resentencing,3 and Superior Court Judge Mark I. Wood modified Bottcher's sentence
to a composite 23-year term with 3 years suspended, resulting again in a net 20-year term
to serve, with the rest of the sentence, including the lifetime license revocation,
unchanged.
The case then returned to the court of appeals, which vacated Bottcher's
sentence because the superior court had not sufficiently justified the sentence as required
by case law.4 The court also vacated the lifetime license revocation, holding that Judge
Pengilly's "terse comment" regarding the revocation did not satisfy the standard set forth
in Dodge v. Municipality of Anchorage ,5 according to which the court should impose
such revocations only in extreme cases when required to protect the public.6
The case was then assigned to Superior Court Judge Douglas Blankenship,
who, like Judge Pengilly and Judge Wood, found that Bottcher's actions demonstrated
extreme indifference to the value of Saul's life. The court imposed the same sentence
previously imposed by Judge Wood, a composite sentence of 23 years with 3 suspended.
2 See Bottcher v. State, Mem. Op. & J. No. 5435, 2009 WL 226010, at *2
(Alaska App., Jan. 28, 2009).
3 Id.
4
Id. at *3-6.
5 877 P.2d 270 (Alaska App. 1994).
6 Bottcher , 2009 WL 226010, at *3.
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The court also again imposed a lifetime revocation of Bottcher's driver's license, this
time making more expansive findings supporting the revocation. In particular, the court
considered Bottcher's long-term use of alcohol, his alcohol dependence, and the
circumstances of the current offense and concluded that a lifetime revocation was
necessary because Bottcher was, and would likely remain, a danger to the public when
driving.
Bottcher again appealed, arguing that his sentence was excessive and that
the superior court still had not adequately justified the license revocation.7 The court of
appeals held that the sentence was not clearly mistaken.8 With respect to the license
revocation, the court of appeals observed that the superior court had considered both
Bottcher's long history of alcohol dependence and the seriousness of his current
offenses; in light of these considerations, the court of appeals held that the superior
court's decision "that a lifetime revocation was necessary to protect the public" was not
clearly mistaken.9
Following his appeal, Bottcher filed a petition for hearing, which we
granted "only as to the propriety of the lifetime revocation of [Bottcher's] driver's
license."10
7 See Bottcher v. State, 262 P.3d 224 (Alaska App. 2011).
8 Id. at 227.
9 Id.
10 Alaska Supreme Court Order No. S-14460 (March 2, 2012).
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III. STANDARD OF REVIEW
"'Clearly mistaken' is the standard of review that we employ when
reviewing sentencing decisions of a trial court."11 This is a "deferential standard of
review":12
[I]t gives considerable leeway to individual sentencing
judges. The "clearly mistaken" test is founded on two
concepts: first, that reasonable judges, confronted with
identical facts, can and will differ on what constitutes an
appropriate sentence; second, that society is willing to accept
these sentencing discrepancies, so long as a judge's
sentencing decision falls within "a permissible range of
reasonable sentences."[13]
IV. DISCUSSION
A. The Superior Court Applied The Correct Standard For Imposing A
Lifetime Revocation Of A Driver's License.
Alaska Statute 28.15.181 directs a court to revoke a person's driver's
license, privilege to drive, or privilege to obtain a license when the person is convicted
of certain driving-related offenses listed in subsection (a) of the statute. Bottcher's
convictions in this case fall under the first three listed offenses in subsection (a), namely:
(1) manslaughter or negligent homicide resulting from driving a motor vehicle; (2) a
felony in the commission of which a motor vehicle is used; and (3) failure to stop and
give aid as required by law when a motor vehicle accident results in the death or personal
11 State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (citing McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974)).
12 Id.
13 Id. (quoting Erickson v. State , 950 P.2d 580, 586 (Alaska App. 1997)).
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injury of another.14 Subsection (b) of the statute requires that a "court convicting a
person of an offense described in (a)(1)-(4), (6), (7), or (10) of this section shall revoke
that person's driver's license, privilege to drive, or privilege to obtain a license for not
less than 30 days for the first conviction . . . ."15 Thus, because Bottcher's convictions
fall under (a)(1)-(3), the court was required to revoke his driver's license for at least 30
days.
1. Lifetime revocations are not limited only to "chronic offenders."
Although the statute establishes certain mandatory minimum periods of
revocation, it does not set an upper limit on the length of revocation. In Dodge v.
Municipality of Anchorage , the court of appeals held that the statute "authorizes a court
to revoke a driver's license for any period of years, including a lifetime revocation."16
The court proceeded to discuss the circumstances under which a court can impose a
lifetime revocation, holding that "a court should impose a lifetime revocation of a
driver's license only in extreme cases when the court concludes that such a revocation
is required to protect the public."17 The court then "reviewed the entire record" in light
of this standard.18 In particular, the court focused on two factors.19 First, the court
observed that the defendant had "a twenty-year history of repeated offenses involving
the operation of motor vehicles while intoxicated," including one offense in which the
14 AS 28.15.181(a)(1)-(3).
15 AS 28.15.181(b). There is an exception for the granting of a limited license
in cases where the person's ability to earn a livelihood would be impaired. Id.
16 877 P.2d 270, 273 (Alaska App. 1994).
17 Id.
18 Id.
19 Id.
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defendant caused a person's death.20 Second, the court observed that the "present DWI
was very serious and involved a traffic accident, a blood-alcohol content of more than
twice the legal limit, and the endangerment of numerous people, including Dodge's
fifteen-year-old passenger."21 In light of these considerations, the court of appeals
concluded that the trial court's lifetime revocation of Dodge's license was not clearly
mistaken.22
In a later case, Fine v. State ,23 the court of appeals applied the standard
formulated in Dodge and vacated the trial court's imposition of a lifetime revocation,
holding that such a revocation was excessive in Fine's case.24 Fine had been convicted
of criminally negligent homicide, assault in the third degree, and driving while
intoxicated after an accident in which he crossed over the center line and struck a
motorcycle, killing the driver and injuring the passenger.25 However, Fine "had not
engaged in grossly erratic driving before the collision" and his .08 blood alcohol level
was "not particularly high."26 Moreover, the court of appeals observed that Fine had "no
history of driving while intoxicated" and that the record was insufficient to support a
20 Id.
21 Id.
22 Id.
23 22 P.3d 20 (Alaska App. 2001).
24 Id. at 23-24.
25 Id. at 21.
26 Id. at 21-23.
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finding that Fine, who was 29 years old at the time of the accident, had a "long-term
history of alcohol abuse that made him a threat to the public."27
The court of appeals' consideration of Fine's license revocation focused on
the standard set forth in Dodge as well as the particular facts of Fine's case.28 The court
compared Fine's record with that of Dodge and observed that, whereas Dodge had
"established himself as a chronic DWI offender who was a worst offender and who was
clearly a danger to the public," Fine "simply has no similar record."29 The court also
observed that Fine "has no prior record of driving while intoxicated or similar offenses"
and that Fine's blood alcohol at the time of the accident "was less than .10 percent."30
The court of appeals further explained that to authorize a lifetime revocation
for Fine "would authorize such an extreme punishment for anyone with a similarly
ambiguous criminal history."31 Rather, "[s]uch a punishment should be reserved for
chronic offenders, such as Dodge, whose records demonstrate that they never should be
allowed to drive a motor vehicle again."32 The court concluded that there was "no basis
to revoke Fine's driver's license for the rest of his life."33
Bottcher relies heavily on the court of appeals' statement in Fine that
lifetime revocations "should be reserved for chronic offenders . . . ." Bottcher points out
27 Id. at 23.
28 Id. at 23-24.
29 Id.
30 Id. at 24.
31 Id.
32 Id.
33 Id.
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that at his resentencing hearing, the superior court acknowledged Bottcher was not a
chronic offender under Fine . Thus, Bottcher argues, in light of Fine 's apparent
restriction of lifetime revocations to "chronic offenders," the court's lifetime revocation
of his license was excessive.
However, there is no reason to believe that the court of appeals intended
its discussion of "chronic offenders" in Fine to modify the standard it set forth in Dodge ,
according to which the determinative factor in a court's decision to impose a lifetime
revocation is whether it is an "extreme case[]" in which "the court concludes that such
revocation is required to protect the public."34 Rather, Fine 's language regarding
"chronic offenders" should be understood in the context of the court of appeals'
comparison of the defendants Fine and Dodge, in which the defendants' respective
criminal histories were, in addition to the facts and circumstances of their current
offenses, the most salient source of information about the defendants' danger to the
public when driving. The court of appeals in Fine was not considering a situation in
which the defendant lacked a serious criminal history but nevertheless posed a danger
to the public when driving by virtue of some other factor - such as a long history of
alcohol abuse. In short, Fine did not disturb Dodge 's holding that the court should
impose a lifetime revocation only in extreme cases when such a revocation is required
to protect the public. We hold that a finding of chronic offender status is not a necessary
predicate to ordering a lifetime revocation of a driver's license.
2. There is no legislative preference for short periods of revocation.
Bottcher argues that the mandatory minimums set forth in AS 28.15.181,
which range from 30 days to three years, "indicate a legislative preference for relatively
short periods of revocation." In support of this argument, Bottcher cites our observation
34 Dodge v. Municipality of Anchorage , 877 P.2d 270, 273 (Alaska App.
1994).
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in Pears v. State that a lowering of the mandatory minimum sentence for second-degree
murder from 15 to 5 years might eventually alter the typical sentence for that offense.35
This argument is without merit. In Pears we did not say that the change in
mandatory minimums should alter the typical sentence; we merely posed a question
about what might occur.36 Moreover, regardless of whether any inferences should be
drawn from the mandatory minimums in the statute, Bottcher's argument simply
underscores what the court of appeals already indicated in Dodge , namely that lifetime
revocations should not be imposed routinely, but rather should be reserved for extreme
cases when such a revocation is required to protect the public.
In the instant case, the superior court focused its discussion of Bottcher's
lifetime revocation on two factors. First, the court considered "the facts and
circumstances surrounding this particular offense," the nature of which the court found
to be "very, very egregious." Second, the court focused on Bottcher's long history of
alcohol abuse, as well as its determination that Bottcher was alcohol-dependent. The
court concluded that Bottcher's "actions in this case are testimony to the danger that [he]
pose[s]. And I'm not convinced that that will not continue upon [his] release. So I'm
going to require that [he] not drive a vehicle." It is clear that the court, following the
standard set forth in Dodge , imposed the lifetime revocation because it believed that
Bottcher's case was an extreme case in which a lifetime revocation was required to
protect the public.
35 Pears v. State , 698 P.2d 1198, 1203 (Alaska 1985) (stating that "it is not
clear, in view of the lowering of the mandatory minimum sentence from fifteen to five
years, whether a sentence of twenty to twenty-five years imposed for second degree
murder under the prior statute will remain 'typical' under the current statute") .
36 Id.
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B. The Superior Court's Imposition Of The Lifetime Revocation Was Not
Clearly Mistaken.
As discussed in the preceding section, the superior court focused its
discussion of Bottcher's lifetime revocation on two factors: (1) the facts and
circumstances of the present offense; and (2) Bottcher's long history of alcohol abuse.
In light of these two factors, the court's finding that Bottcher's case was an extreme case,
in which a lifetime revocation was required to protect the public, was not clearly
mistaken.
With respect to the first factor, the superior court's judgment about the
extreme or "very, very egregious" nature of the facts and circumstances of Bottcher's
offense was based on several considerations. First, the court noted that Bottcher was
"severely intoxicated," as indicated by Bottcher's high blood-alcohol level and the
testimony of a witness at the last bar Bottcher visited the evening of the accident. The
court noted that the witness's testimony about Bottcher's highly intoxicated state was
"chilling . . . knowing that [he] went out and drove and subsequently struck Saul,
narrowly missing Gabriel . . . ." The court also found that Bottcher's refusal to return to
the scene of the accident and his attempt to bribe Pomraning manifested an "extreme
indifference to the value of human life," an element of the higher offense of second-
degree murder.37 Finally, in discussing the failure to render aid charge, the court noted
Bottcher's "callous reaction[]" to his crime, describing it as "striking, severely injuring
a 13-year-old who ultimately dies the next day, leaving, not coming back when you're
told about it."
37 AS 11.41.110 (stating that a person commits the crime of murder in the
second degree if, among other factors, the person "knowingly engages in conduct that
results in the death of another person under circumstances manifesting an extreme
indifference to the value of human life").
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A comparison of the facts and circumstances of Bottcher's case with those
of Dodge and Fine confirms the soundness of the superior court's judgment that
Bottcher's case was an extreme one. Neither Dodge's nor Fine's accidents involved a
failure to render aid or an attempt to bribe a bystander. Further, Bottcher's blood-
alcohol level of .237 was nearly three times as great as Fine's .08 level38 and was likely
as great or greater than Dodge's blood-alcohol content, which was described as "more
than twice the legal limit."39 In sum, the facts and circumstances of Bottcher's accident
are approximately equivalent to Dodge's case, are extreme in comparison to Fine's case,
and are extreme by any relevant measure.
The second factor the superior court relied on in imposing the lifetime
revocation of Bottcher's license was Bottcher's long history of alcohol abuse and
dependency. Unquestionably, Bottcher has a serious alcohol problem, confirmed both
by Bottcher's own admission and by the observations of friends and professional
therapists. This is a clear contrast with Fine , where the court of appeals explicitly found
that the record did not support a finding that Fine was a chronic abuser of alcohol.40 (The
court of appeals' opinion in Dodge does not include any information regarding Dodge's
alcohol use other than his long history of DWI-related offenses.41) At Bottcher's
resentencing, the superior court made extensive findings with respect to Bottcher's
problems with alcohol:
[T]he file indicates that you've been using alcohol from
adolescence up to the time of the offense, been diagnosed as
38 Fine , 22 P.3d at 21.
39 Dodge , 877 P.2d at 273.
40 Fine , 22 P.3d at 23.
41 Dodge , 877 P.2d at 272.
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alcohol [dependent]. Now, there were failed attempts to
quit. . . . And you broke your own self-imposed rules to
reduce the use of alcohol. There's also an indication that you
were prescribed medicine to provide relief for mental
conditions, but chose to use [it] situationally . . . rather than
as prescribed because of the negative side effects of using the
medicine with alcohol. . . . [I]n effect . . . this is you
choosing alcohol over the medicine.
These findings informed the superior court's judgment that it was "not convinced" the
danger Bottcher posed when driving would not resume upon his release, and that it was
therefore necessary to revoke Bottcher's license for life in order to protect the public.
Bottcher argues that despite his past struggles with alcohol, he is a
promising candidate for rehabilitation. At resentencing, the superior court considered
Bottcher's potential for rehabilitation, noting that it appreciated that Bottcher had been
tutoring inmates in English literacy. Nevertheless, the court expressed its concern that
given Bottcher's long-term drinking problems and alcohol dependence, Bottcher would
continue drinking once he was released. The court ultimately described its outlook as
"guarded" with respect to Bottcher's potential for rehabilitation and expressed its "hope"
that Bottcher could overcome his difficulties with alcohol, but concluded that it could not
"rely on" that occurring.
In sum, the superior court, having carefully considered the record, decided
that given the egregious facts of Bottcher's present offense and his serious long-term
problems with alcohol, a lifetime revocation was required to protect the public. The
superior court's decision to impose such a revocation was not clearly mistaken.
V. CONCLUSION
The superior court applied the correct standard to Bottcher's case, namely,
that it should impose a lifetime revocation of his license only if the case was an extreme
case in which such a revocation was required to protect the public. In view of the entire
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record, the superior court's decision that a lifetime revocation was required in Bottcher's
case was not clearly mistaken. For these reasons, we AFFIRM the decision of the court
of appeals, which affirmed the superior court's lifetime revocation of Bottcher's driver's
license.
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