Brakes v. State

• Decision Date: 17 August 1990
• Docket Number: No. A-2934,A-2934
• Citation: 796 P.2d 1368
• Parties: Edward M. BRAKES, III, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1368

796 P.2d 1368

Edward M. BRAKES, III, Appellant, v. STATE of Alaska, Appellee.

No. A-2934.

Court of Appeals of Alaska.

Aug. 17, 1990.

Margaret W. Berck, Asst. Public Defender, Juneau, and John B. Salemi, Public Defender, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Edward M. Brakes, III, was seventeen years old on January 23, 1988, when a vehicle in which he was riding left the road and crashed. Tony D. Kokotovich, a passenger, died. Scott Stringer and Joseph M. Tompkins, two other passengers, suffered serious injuries. As a result of the accident, Brakes, who owned the vehicle involved, was charged with one count of manslaughter, in violation of AS 11.41.120(a)(1), and two counts of assault in the first degree, in violation of AS 11.41.200(a)(1). Because of Brakes' age, these charges were brought in the juvenile court. See AS 47.10.010(a)(1). ¹ The state initially sought waiver of juvenile jurisdiction so that Brakes could be tried as an adult, see AS 47.10.060 (waiver of juvenile jurisdiction), but withdrew the application after receiving a psychological evaluation of Brakes. The state then brought a parallel adult proceeding in the district court charging Brakes with driving while intoxicated (DWI), in violation of AS 28.35.030(a)(2) and former AS 47.10.010(b). ²

The state's theory of the case was that Brakes was driving his vehicle while intoxicated at the time it left the road, causing the death of one passenger and serious injury to two others. In contrast, Brakes defended on the theory that some time before the accident, Joseph Tompkins took over the driving. Brakes supported this theory with the testimony of an accident reconstruction expert and circumstantial evidence. The jury acquitted Brakes of all charges. Brakes then moved to have the DWI charges dismissed on the grounds that prosecuting him for drunk driving after his acquittal of manslaughter and assault would place him twice in jeopardy for the same offense. U.S. Const. amend. V; Alaska Const. art. 1, § 9.

The trial court agreed in part and dismissed the complaint, but indicated that Brakes could be prosecuted for drunk driving earlier in the evening. The trial court relied on Calder v. State, 619 P.2d 1026, 1029-30 (Alaska 1980), where the supreme court permitted one continuous course of reckless driving to be charged as two separate offenses. The factual basis for the two reckless driving convictions arguably consisted of separate conduct, as presented to the jury in the parties' respective theories of the case. The state accepted the trial court's suggestion and filed a supplemental complaint charging Brakes with drunk driving earlier in the evening. It gave notice, however, that it intended to argue at sentencing that Brakes in fact had been driving at the time of the accident, and that the death and injuries should serve to aggravate Brakes' sentence for DWI. Brakes objected, arguing that relying on conduct for which he had been acquitted to enhance his sentence would violate double jeopardy and due process of law. U.S. Const. amend. XIV; Alaska Const. art. 1, §§ 7, 9.

Brakes entered a no contest plea to the amended DWI charge and was sentenced to one year in jail with six months suspended. He was placed on probation for a period of five years with a condition of probation that he perform 500 hours of community work service. Additionally, his driver's license was revoked for three years. The court, in determining the sentence, found by a preponderance of the evidence that Brakes was driving at the time of the fatal accident. Brakes appeals, we affirm.

DISCUSSION

Brakes first argues that the trial court violated his right to protection against double jeopardy and due process when it sentenced him for DWI. He points out that the court had previously dismissed the DWI charge on double jeopardy grounds following his acquittal in juvenile court on related charges of manslaughter and assault. ³

Brakes seems to be arguing that because he was acquitted of a greater offense it was fundamentally unfair for Superior Court Judge Walter L. Carpeneti to sentence him for a lesser offense (DWI) based upon an assumption, no matter how supported by verified facts, that the defendant committed the greater offense (manslaughter and assault). We have rejected this argument a number of times. See Schnecker v. State, 739 P.2d 1310, 1312-13 (Alaska App.1987); Benboe v. State, 698 P.2d 1230, 1232 (Alaska App.1985); Brezenoff v. State, 658 P.2d 1359, 1363 (Alaska App.1983); Fee v. State, 656 P.2d 1202, 1204-06 (Alaska App.1982); Huckaby v. State, 632 P.2d 975, 976 (Alaska App.1981).

In Fee, we stressed that while a trial court may, within statutory limits, impose a severe sentence for a lesser crime on the ground that the accused actually committed a greater crime, such a determination must be based either on an admission of the defendant or on verified facts in the record.

Schnecker, 739 P.2d at 1312 (citing Fee, 656 P.2d at 1205). In the instant case, it does not appear that Brakes entered his no contest plea in detrimental reliance on a promise that his sentence would not exceed the sentence he actually received. Nor is there anything in the record to suggest that Brakes' plea was dependent on an implied promise that the facts of the accident would not be taken into account at his sentencing.

As we said in Fee, 656 P.2d at 1204 (citations omitted):

A defendant can only be sentenced to a penalty appropriate for the crime for which he is convicted or to which he pleads. A jury verdict or a plea of guilty or nolo contendere serves to place a ceiling on the sentence that may be imposed. Nevertheless, in determining an appropriate sentence, the trial judge must evaluate the defendant and the crime or crimes which he has committed. In so doing, the judge must independently review the facts and make findings which, if supported by substantial evidence, would be sustained on appeal. One of the factors which trial judges consider in determining an appropriate sentence is whether a defendant is a "worst offender." In order to make this determination, the trial judge must determine precisely what the defendant did. Where the defendant pleads guilty to a lesser offense and a review of the facts establishes that he, in fact, committed a greater offense, the court may legitimately find that he is a worst offender for purposes of sentencing him for the lesser offense.

We have applied the same rule where the defendant was charged with a greater offense, acquitted of that offense, but convicted of a lesser offense. See, e.g., Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.1987). In Ridgely, Shelley Bosch was charged with first-degree murder. The jury acquitted her of first-degree murder and convicted her of second-degree murder, apparently reasoning that she had not intended to kill the victim. The trial court re-evaluated the facts at sentencing, concluded that Bosch had intended to kill the victim despite the acquittal, and imposed a maximum ninety-nine-year sentence, which we affirmed on appeal. Id. We reached a similar conclusion in Huckaby, where the defendant was charged with negligent homicide on facts substantially similar to those in the instant case. The jury acquitted him of negligent homicide, but convicted him of reckless driving. We held that the trial court did not err in concluding that Huckaby had, in fact, caused the death of his victims recklessly and as a result imposing a maximum sentence for the lesser offense--reckless driving. ⁴ Huckaby, 632 P.2d at 976-77.

The reason why double jeopardy and due process are not implicated when a person who has been acquitted of certain conduct is sentenced on the basis that the conduct occurred, rests on the differing burdens of proof. In order to convict a defendant of an offense, the state must prove guilt beyond a reasonable doubt. In contrast, a trial court imposing sentence, may rely on any information that is verified in the record. See Nukapigak v. State, 562 P.2d 697, 701-02 (Alaska 1977), aff'd on reh'g, 576 P.2d 982 (Alaska 1978). ⁵

The federal court seems to have uniformly held that a trial court may consider conduct for which the defendant was acquitted in determining an appropriate sentence for the offense for which a defendant was convicted. See United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir.1985); United States ex rel. Goldberg v. Warden, 622 F.2d 60, 63 (3d Cir.), cert. denied, 449 U.S. 871, 101 S.Ct. 210, 66 L.Ed.2d 91 (1980); United States v. Bowdach, 561 F.2d 1160, 1175-76 (5th Cir.1977); United States v. Cardi, 519 F.2d 309, 314 n. 3 (7th Cir.1975); United States v. Atkins, 480 F.2d 1223, 1224 (9th Cir.1973); United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir.1972). Cf. United States v. Campbell, 684 F.2d 141, 152-55 (D.C.Cir.1982) (affirming the trial court's sentence based upon evidence introduced with respect to crimes of which the defendant was acquitted but "declining to pursue Sweig, to its ultimate reading").

The federal courts have continued to apply this rule despite the adoption of sentencing guidelines. See United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180-81 (2d Cir.1990); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) (rejecting double jeopardy challenge); United States v. Isom, 886 F.2d 736, 738 (4th Cir.1989) (rejecting due process challenge); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam) (rejecting claim that trial judge, in considering acquitted conduct, overrode jury's determination of a fact); United States v. Ryan, 866 F.2d 604, 608-10 (3d Cir.1989) (rejecting claim that departure from guidelines on the basis of acquitted conduct was unreasonable). But see United States v. Perez, 858 F.2d...