Smith v. State

          Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge. Trial Court No. 3KN-12-613 CR.

         Elizabeth D. Friedman, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

         Amanda L. Browning, Assistant District Attorney, Kenai, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

         Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.^[*] Judge SUDDOCK, writing for the Court and concurring separately.

          OPINION

         John L. Smith Jr. pled guilty to failure to render assistance to an injured person after an automobile accident.^[1] At sentencing, Smith argued that the traffic accident was unavoidable because the child he struck had darted across the roadway directly into the pathway of Smith's oncoming car. He submitted a report by an expert who concluded that Smith was not at fault. But the judge's sentencing remarks were ambiguous as to whether he in fact found Smith to be at fault, and whether he enhanced Smith's sentence because of this. This is problematic because the record does not support a finding that Smith was at fault.

         Smith objected to several allegations contained in the presentence report. The judge ruled that the challenged allegations were speculative and that he would not rely on them. But he declined to strike them from the presentence report as required by Criminal Rule 32.1(f)(5).

         Smith was sentenced to 7 years with 3 years suspended. He appeals his sentence as excessive, arguing that the judge relied upon unproven assumptions about Smith's degree of fault. Because we perceive a substantial possibility that the judge relied on such speculation in sentencing Smith, we remand for resentencing.

         Facts and proceedings

         Around 6:00 p.m. on April 17, 2012, Smith was driving his SUV along Kalifornsky Beach (or K-Beach) Road in Kenai at approximately fifty-five miles per hour, the posted speed limit. T.T., a seven-year-old child, was playing with other children at a large puddle near the side of the road opposite to Smith's lane of travel. Christine Posey, a witness to the accident, testified to the grand jury that after she drove by the children playing to her right, she looked in her rear-view mirror and saw a " little girl on a bike," followed by a " little one," approaching the road. The girl on the bicycle stopped at the roadside, but the smaller child appeared to hesitate, and then " she darted out on the road." Posey said she saw smoke from burnt rubber as Smith's oncoming SUV braked and veered to its right. She did not see the actual impact.

         Smith was on felony probation at the time and had been released on bail following his arrest on a petition to revoke his probation. Because he had absconded from his third-party custodian, a warrant for his arrest was outstanding at the time of the accident. As nearby adults approached to render aid, Smith fled the scene; he was arrested several days later.

         T.T.'s injuries were not life-threatening, but she suffered a partially collapsed lung, abrasions, a black eye, a fractured upper jaw or palate, and a loose tooth. She spent two days in a hospital.

         The grand jury indicted Smith not only for leaving the scene of an injury accident but also for causing the accident: for first-degree assault (recklessly causing serious physical injury by means of a dangerous instrument); second-degree assault (recklessly causing serious physical injury); third-degree assault (recklessly causing physical injury by means of a dangerous instrument); and third-degree assault (with criminal negligence causing physical injury by means of a dangerous instrument).

         Pursuant toa Rule 11 agreement, the State dismissed the assault counts, and Smith pled guilty to leaving the scene. In advance of sentencing, Smith filed a report by an accident reconstruction expert who concluded that Smith was at most traveling fifty-seven miles per hour. The expert noted that the children may not have been visible to drivers, such as Smith, in the far lane. He concluded that Smith was unable to stop despite his best efforts, and that he was not at fault for the accident.

         The presentence report author concluded that " [h]itting this girl with [Smith's] vehicle was an accident." And the State in its sentencing remarks did not accuse Smith of bad driving. But the judge nonetheless appeared to blame Smith for causing the accident:

[O]ther drivers appeared to note children playing ... in a mud puddle near the highway. So other people were cautious. ... So one could speculate that if the defendant were impaired by any consumption of drugs, maybe his reaction was just a titch, a small amount, slower[.]

. . . .

This is a little different than a child darting out from behind a tree or an obstruction along a highway. These children were visible from a distance and observed by other drivers to be visible from a [distance].

. . . .

Missing probation officer appointments, having had at least one or two hot UAs, these things happened prior to the accident. The degree to which they may have contributed is speculation. Possible that he was impaired[.]

. . . .

The conduct in question here was offensive. It's not what the community expects a driver to do, even if the driver is not high or is not speeding. The conduct here suggests the driver knew that what he did was wrong and was trying to get away with it. ... I think it is offensive for drivers not to slow down when children are playing near a roadway.

          Leaving the scene of an injury accident is a non-classified felony with a sentencing range of 0 to 10 years.^[2] As noted, the court sentenced Smith to 7 years with 3 years suspended. This sentence appeal followed.

         Why we remand ...