JOHN L. SMITH JR., Appellant,
STATE OF ALASKA, Appellee
from the Superior Court, Third Judicial District, Kenai, Carl
Bauman, Judge. Trial Court No. 3KN-12-613 CR.
D. Friedman, Assistant Public Advocate, Appeals and Statewide
Defense Section, and Richard Allen, Public Advocate,
Anchorage, for the Appellant.
L. Browning, Assistant District Attorney, Kenai, and Craig W.
Richards, Attorney General, Juneau, for the Appellee.
Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior
Court Judge.[*] Judge SUDDOCK, writing for the Court
and concurring separately.
Smith Jr. pled guilty to failure to render assistance to an
injured person after an automobile accident. 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.
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).
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
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
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
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
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).
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.
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. As noted, the court sentenced Smith to
7 years with 3 years suspended. This sentence appeal
we remand ...