State v. Monk
State v. Monk
Opinion of the Court
OPINION
After entering pleas of no contest to the offenses, Justin D. Monk was convicted of driving while intoxicated (DWI), a class A misdemeanor, AS 28.35.030(a)(1), and third-degree assault, a class C felony, AS 11.41.220(a)(2) & (b) (recklessly causing physical injury to another person by means
Monk’s convictions stemmed from a motor vehicle collision that occurred while Monk was on a weekend ski trip with friends in Girdwood. Driving with a blood-alcohol level almost twice the legal limit, Monk lost control of his car and collided with two pedestrians who were walking on the roadway. Both pedestrians suffered substantial, albeit not serious, physical injuries. At the time of the offense, Monk was twenty-two years of age and a first offender. He was serving as a yeoman third-class with the Coast Guard in Kodiak. Monk had a good performance record in the Coast Guard and was highly regarded as a diligent and reliable worker by his superiors.
Monk’s involvement in this offense appears to have had a significant effect on him. Following the collision, at the direction of the Coast Guard, Monk underwent an evaluation for potential alcohol abuse. He thereafter spent three weeks in residential alcohol treatment at a naval facility. Upon returning to Kodiak, he continued to comply with all aftercare requirements of the treatment program. At the sentencing hearing, Monk’s commanding officer testified strongly in Monk’s behalf. Monk expressed sincere remorse and accepted responsibility for his conduct.
In imposing sentence, Judge Hunt found nothing particularly aggravated or mitigated in Monk’s conduct, concluding that, “[f]or a DWI-based criminal offense this is a typical offense by a typical offender.”
On appeal, the state maintains that “deterrence of others and community condemnation dictate that the court should have imposed a sentence greater than that imposed for a first Driving While Intoxicated conviction where no injury resulted.” We agree.
Even assuming Monk had been charged with and convicted of DWI alone, his conduct
This is not to say that the imposition of a probationary sentence should have been rejected out of hand by the sentencing court. We have never suggested that non-probationary sentences
Nevertheless, the only alternative to incarceration imposed by the court in this case was the requirement that Monk complete three hundred hours of community service. At the statutorily prescribed conversion rate of eight hours of community service per day of incarceration,
With respect to Monk’s rehabilitation, the primary concern of the parties and the sentencing court alike focused on the imposition of a sentence that would enable Monk to maintain his Coast Guard career. Monk’s commanding officer, who testified at the sentencing hearing, made it clear that a sentence requiring Monk to serve up to sixty days in jail would be unlikely to jeopardize Monk’s Coast Guard service. More significant, Monk’s commander also suggested that Monk might be ordered to undergo a period of up to ninety days’ voluntary restriction to quarters — the equivalent of house arrest— which the Coast Guard would supervise. This latter suggestion was specifically endorsed by Monk at the sentencing hearing. Indeed, in responding to the state’s contention that a substantial term of incarceration was appropriate, Monk’s counsel affirmatively urged the court to order, instead, a ninety-
In suspending the imposition of Monk’s sentence, the sentencing court ignored the ninety-day confinement alternative that Monk himself had argued for as a promising sentencing alternative. Without explanation or comment, the court imposed only the requirement of community service.
Having independently reviewed the entire sentencing record, we conclude that the sentence imposed below is clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Under the specific circumstances of this case, and given the seriousness of Monk’s conduct and of the resulting injuries that he inflicted on two separate victims, the need for general deterrence and community condemnation called, at a minimum, for a more substantial alternative to incarceration than was embodied in the community work requirement imposed below.
The sentence is DISAPPROVED.
.In her oral sentencing remarks, Judge Hunt directed Monk to complete his community work within five years of the sentencing hearing. However, Judge Hunt had already unequivocally ordered Monk to spend only three years on probation. Since it is plainly anomalous to require a defendant, as a condition of probation, to engage in conduct that will occur after the expiration of the probationary term, the sentencing court’s reference to a five-year period for completing the community work requirement appears on its face to be a mistake. The written judgment does not incorporate the five-year requirement. We interpret the written judgment as correcting the orally imposed sentence and as requiring performance of the community work during the three-year probationary term.
. When the state appeals a sentence as too lenient, we are not authorized to increase the sentence, but may only express our approval or disapproval thereof. AS 12.55.120(b).
. Although the accuracy of this conclusion is certainly open to question, we may accept it for purposes of our decision.
. A "non-probationary” sentence is one involving ninety days or more of unsuspended incarceration. See Leuch v. State, 633 P.2d 1006, 1014 n. 22 (Alaska 1981); State v. Jackson, 776 P.2d 320, 326-27 (Alaska App. 1989).
. But see State v. Coats, 669 P.2d 1329, 1334 (Alaska App. 1983) (suggesting that for first offense class C felonies invólving serious harm to others, probationary sentences should ordinarily be reserved for particularly promising offenders whose conduct is also mitigated).
.AS 12.55.055(d) specifies that when a sentencing court elects to allow a defendant to perform community work instead of serving time in jail, the defendant must be credited with one day of jail for every eight hours of community work performed. Cf. State v. Hernandez, 877 P.2d 1309, 1313-14 n. 6 (Alaska App. 1994) (indicating that, in terms of sentencing goals such as deterrence and community condemnation, eight hours of community work cannot realistically be equated to a day of jail time).
. Monk suggests that, under Nygren v. State, 658 P.2d 141 (Alaska App. 1983), the three weeks he spent in residential treatment prior to sentencing should be counted as the equivalent of time served. This contention is meritless, however. The argument disregards that Monk underwent the treatment because the Coast Guard required him to do so, not because of a court order issued in connection with his criminal case. Moreover, although the treatment may have been residential, Monk, as a member of the Coast Guard, was already in a residential setting when he entered treatment, and he returned to a residential setting after he left treatment.
Concurring Opinion
concurring.
I strongly disagree that Judge Hunt could not properly take into consideration the actions which were taken by the Coast Guard when she imposed her sentence. Monk served four to six weeks in an alcohol treatment program and spent at least three weeks of this time in residential treatment. The state agreed that he should be given credit for having served a term of imprisonment during the time he was in residential treatment. Judge Hunt properly considered this in imposing sentence. In addition, Judge Hunt properly considered the fact that Monk’s driving privileges were revoked for driving on any military installation for twelve months. Judge Hunt could also consider Monk’s other extensive efforts at alcohol rehabilitation, even though they were to some extent enforced by the military. The military interest and participation in Monk’s rehabilitation is extremely positive.
Monk’s commanding officer asked the court to restrict Monk to quarters rather than serve additional jail time. Having Monk restricted to quarters rather than having him serve additional jail time was the cornerstone of the defense argument at sentencing. Judge Hunt did not explain her failure to impose this sanction. I can only assume that she simply forgot to impose this portion of Monk’s sentence. I accordingly join the majority opinion disapproving the sentence.
Reference
- Full Case Name
- STATE of Alaska, Appellant, v. Justin D. MONK, Appellee
- Cited By
- 2 cases
- Status
- Published