DANNY AUKON JR v. STATE OF ALASKA (2011)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Danny Aukon Jr. was convicted of manslaughter, leaving the scene of an accident, and driving under the influence of alcohol.   He contends that his sentence is excessive because Superior Court Judge Ben Esch made the sentence for leaving the scene consecutive to the manslaughter sentence.   Although we conclude that Judge Esch's decision to impose consecutive sentences was not clearly mistaken, we remand for resentencing on a separate issue.

Aukon, his son, and a friend named Bert Karmun drove out the Nome–Council Highway east of Nome late at night, drinking beer and hunting for rabbits.   At about 5:30 a.m., Aukon was driving on the wrong side of the road, and his truck hit and killed Charlie Bergamaschi, who was walking on the shoulder of the road.   Aukon and his son stopped, took a look at Bergamaschi, then got back in the truck.   Aukon and his son told Karmun to keep his mouth shut and pretend that nothing had happened.

Another motorist came across Bergamaschi's body around 7:00 a.m. Later that morning Karmun contacted the police and told them what he had witnessed.   When the police confronted Aukon, he told them that Bergamaschi had run out in front of his truck waving his arms.   Aukon's blood alcohol concentration at 1:21 p.m. was .112 percent.

Aukon was convicted after a jury trial.   The court imposed a sentence of twelve years' imprisonment with five years suspended for manslaughter, a consecutive sentence of three years for leaving the scene, and a concurrent thirty-day sentence for driving under the influence.

On appeal, Aukon contends that his sentence is excessive because the sentencing judge made the sentence for leaving the scene consecutive to the manslaughter sentence.   We review the judge's sentencing decision to determine whether it was clearly mistaken.¹

When a defendant is sentenced for two or more crimes, the sentencing judge generally has the discretion to make the terms of imprisonment either concurrent or consecutive.²  But in the past, we have recognized that the presumptive term for the most serious offense is a benchmark that should not be exceeded without “good reason.” ³

In the present case, the sentencing range for Aukon's manslaughter conviction was seven to eleven years' imprisonment.⁴  At the sentencing hearing, Judge Esch summarized for Aukon the reasons that supported his separate conviction for leaving the scene:

This particular offense is a DUI accident that caused the death of Mr. Bergamaschi.   The alcohol not only contributed to the driving that led to his death, but clearly contributed to your decision to leave without rendering any aid.   There isn't any doubt that you attempted to avoid responsibility for what happened․  The testimony at trial suggested you indicated you told others not to report anything about it, and as [the prosecutor] points out, you attempted to shift blame in some or all part to Mr. Bergamaschi [when you told the police that he] jumped in front of your car.   But the testimony showed that ․ he was clear over in the other lane when this happened.

We have approved similar reasons supporting consecutive sentences where the sentences addressed separate conduct or separate interests.⁵  We likewise conclude that Judge Esch's decision to impose consecutive sentences in Aukon's case was not clearly mistaken.

However, our review of Aukon's sentence discloses a plain error on a different issue.   There is a subsection of the felony sentencing statute that places a limit on the defendant's total sentence, when the sentence is subject to a presumptive range:

In imposing a sentence within a presumptive range under [AS 12.55.125] (c), (d), (e), or (i) ․, the total term, made up of the active term of imprisonment plus any suspended term of imprisonment, must fall within the presumptive range, and the active term of imprisonment may not fall below the lower end of the presumptive range.6

This statute codifies a rule we recognized long ago—that in the absence of extraordinary circumstances or aggravating factors, a presumptive sentence may not be exceeded, even though the increased time is suspended.⁷

As noted above, the presumptive range for Aukon's manslaughter conviction was seven to eleven years.   His total sentence of twelve years' imprisonment exceeded the maximum allowed by the presumptive range, even though five years of the sentence was suspended.

We cannot determine exactly how the superior court would restructure the sentence to correct this error.   We accordingly remand this case for resentencing.   The superior court may resentence Aukon to a composite sentence that does not exceed the composite sentence originally imposed.⁸

We REMAND this case to the superior court for resentencing.

FOOTNOTES

FN1. McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974)..  FN1. McClain v. State, 519 P.2d 811, 813–14 (Alaska 1974).

FN2. AS 12.55.127(b)..  FN2. AS 12.55.127(b).

FN3. Farmer v. State, 746 P.2d 1300, 1301 (Alaska App.1987)..  FN3. Farmer v. State, 746 P.2d 1300, 1301 (Alaska App.1987).

FN4. AS 12.55.125(c)(2)(A)..  FN4. AS 12.55.125(c)(2)(A).

FN5. See Splain v. State, 924 P.2d 435, 437 (Alaska App.1996) (approving a consecutive sentence because of the seriousness of the offense and harm to multiple victims);  Latham v. State, 790 P.2d 717, 722 (Alaska App.1990) (approving a consecutive sentence because two of the convictions resulted in harm to different victims)..  FN5. See Splain v. State, 924 P.2d 435, 437 (Alaska App.1996) (approving a consecutive sentence because of the seriousness of the offense and harm to multiple victims);  Latham v. State, 790 P.2d 717, 722 (Alaska App.1990) (approving a consecutive sentence because two of the convictions resulted in harm to different victims).

FN6. AS 12.55.125(n)..  FN6. AS 12.55.125(n).

FN7. McManners v. State, 650 P.2d 414, 416 (Alaska App.1982)..  FN7. McManners v. State, 650 P.2d 414, 416 (Alaska App.1982).

FN8. Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991)..  FN8. Allain v. State, 810 P.2d 1019, 1022 (Alaska App.1991).

BOLGER, Judge.