text:
    Ute GUERRE-CHALEY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8473.
    Court of Appeals of Alaska.
    April 9, 2004.

      Michael A. Stepovich, Fairbanks, for the Appellant.
    Jason Gazewood, Assistant District Attorney, Jeffrey O’Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Ute Guerre-Chaley was arrested for driving while intoxicated. During her encounter with the police, Guerre-Chaley submitted to a “preliminary breath test” — ie., a breath test on a portable testing device carried by the police officer. According to this preliminary breath test, Guerre-Chaley’s blood alcohol content was 0.079 percent. (The legal limit is 0.080 percent; see AS 28.35.030(a)(2).)

Later, at the police station, a breath test conducted using a DataMaster showed that Guerre-Chaley’s blood alcohol content was 0.091 percent. Guerre-Chaley then requested an independent blood test; this blood test yielded a blood alcohol level of 0.095 percent.

At Guerre-Chaley’s trial, the defense attorney wished to present the testimony of an expert witness who had concluded that, even though Guerre-Chaley’s blood alcohol level exceeded the legal limit of 0.080 percent when her breath was tested on the DataMas-ter at the police station and when her blood was tested a little later, her blood alcohol level had been less than 0.080 percent at the time she was driving. But a problem arose because the expert witness proposed to base this opinion on the results of the preliminary breath test.

The State argued that the results of the preliminary breath test device did not meet the standard for admissibility of scientific evidence under the Daubertr-Coon test (the test used in the courts of Alaska). For this reason, the State asked the trial judge to exclude all evidence of the preliminary breath test result (thus effectively prohibiting the defense expert from relying on it).

The trial judge, District Court Judge Raymond M. Funk, agreed that the preliminary breath test result constituted scientific evidence for purposes of the Dcmbertr-Coon rule. The judge further ruled that the defense expert witness could not testify about, or rely on, the result of Guerre-Chaley’s preliminary breath test unless the defense first established that the preliminary breath test device produced results that met the Dauberb-Coon test for admissibility.

After Judge Funk made this ruling, the defense attorney declined a hearing on this issue and offered no other support for the scientific validity of preliminary breath test results. Accordingly, Judge Funk refused to allow the defense expert witness to rely on the result of the preliminary breath test.

(Despite this ruling, the expert witness, Dr. Lawrence K. Duffy, did testify for the defense. Based on the result of Guerre-Chaley’s DataMaster breath test (0.091 percent) and the result of her later blood test (0.095 percent), Dr. Duffy concluded that Guerre-Chaley’s blood alcohol level was rising throughout her encounter with the police, and that her blood alcohol level had been slightly below the legal limit when she was first stopped.)

On appeal, Guerre-Chaley argues that Judge Funk should have allowed her defense expert witness to testify about, and to rely on, the result of the preliminary breath test even though Guerre-Chaley failed to prove that this result was scientifically valid under the Dauberb-Coon standard. Guerre-Chaley bases her argument on Alaska Evidence Rule 703, which reads:

Basis of Opinion Testimony by Experts.
The facts or data ... upon which an expert [witness] bases an opinion or inference may be [either] perceived by or made known to the expert at or before the hearing. [These] [f]acts or data need not be admissible in evidence, but [they] must be of a type reasonably relied upon by experts in [that] particular field in forming opinions or [drawing] inferences upon [that] subject.

Guerre-Chaley asserts that this rule exempts the proponent of expert testimony from the restrictions on scientific evidence established in Daubert and Coon.

It is true that Evidence Rule 703 déclares that the data underlying an expert witness’s opinion need not be independently admissible, so long as it is the type of data that experts in that field reasonably rely on for that purpose. But in practice, Rule 703 normally means that the proponent of expert testimony need not show that the underlying data could independently survive a hearsay objection or an objection based on the expert witness’s lack of first-hand knowledge. See the fifth and sixth paragraphs of the Commentary to Alaska Evidence Rule 703.

Guerre-Chaley’s contention — that Rule 703 exempts the underlying data from the Daubertr-Coon rule governing the admissibility of scientific evidence — is an extension of the rule that we doubt was ever contemplated by its drafters. Moreover, Guerre-Chaley is advocating a seemingly paradoxical application of Rule 703: one that would allow expert witnesses to testify about, and base their opinions on, data that has no demonstrable scientific validity.

Federal authority rejects this suggested interpretation of Rule 703. Four years ago, Congress amended Federal Evidence Rule 702 to clarify and emphasize the trial courts’ gate-keeping role with regard to scientific evidence under the Daubert test. Federal Evidence Rule 702 now reads:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the [witness’s] testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied [those] principles and methods reliably to the facts of the case.

The Advisory Committee’s “Note” to this amended version of Rule 702 addresses the relationship between the Daubert test embodied in Rule 702 and the relaxed standard for the admission of evidence under Rule 703:

There has been some confusion over the relationship between Rules 702 and 703. The [present] amendment makes clear that the sufficiency of the basis of an expert’s [opinion] is to be decided under Rule 702 [■i.e., under the Daubert test]. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert’s basis [for their opinion] cannot be divorced from the ultimate reliability of [that] opinion.... When an expert relies on inadmissible information, Rule 703 requires the trial [judge] to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on [that] information in reaching an opinion. However, the question [of] whether the expert is relying on a sufficient basis of information — whether admissible information or not — [to be permitted to offer an opinion] is governed by the requirements of Rule 702.

See the Advisory Committee’s Note on the 2000 amendment to Federal Evidence Rule 702, quoted in Michael H. Graham, Hand book of Federal Evidence (5th ed.2001), § 702.1, Vol. 2, p. 425.

Thus, if an expert witness purports to base their opinion on the results of a test that has not been shown to have scientific validity under Daubert, the trial judge can prevent the witness from offering that opinion. In such a situation, the proposed expert testimony would fail to meet the standards set forth in Rule 702, for it would not be “based upon sufficient facts or data”, and it would not be “the product of reliable principles and methods”.

In our view, this same rule of law can also be justified somewhat differently. Even though Evidence Rule 703 does not require that the data underlying an expert witness’s opinion be independently admissible, the proponent of the expert testimony must still show that this underlying data is the type of information that is “reasonably relied upon by experts in [that] particular field in forming opinions or [drawing] inferences upon [that] subject”. And, as a matter of law under Daubert and Coon, experts can not reasonably rely on the results of a test that has no demonstrable scientific validity.

Some federal cases support this view of the matter. In In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3rd Cir.1994), the Third Circuit overruled precedent which, until that time, had stated that a trial judge should resolve the question of what facts or data are “reasonably relied upon by experts in the particular field” by hearing from these experts. In Paoli Railroad Yard, the Third Circuit reversed course and held that, because the Daubert decision requires trial judges to exercise a gate-keeping function with respect to scientific evidence, it must be the trial judges (rather than the experts) who ultimately determine what data is “reasonably relied upon” by experts in the field. In other words, “reasonable reliance” necessarily requires proof of scientific validity:

If [an] expert’s reliance on animal studies to draw conclusions about [the effect of chemical compounds on] people constitutes a methodological flaw, [then] it is a ... “flaw” consisting of relying on data [that is] not of a type reasonably relied upon by experts. It would be problematical to conclude that this testimony was reliable enough to meet Rule 702 but not Rule 703[,] or vice versa. Testimony that is [sufficiently] reliable under one Rule should not be inadmissible under another when the policy considerations underlying the two rules are the same.
There will be times when an expert’s methodology is generally reliable but some of the underlying data is not of a type reasonably relied on by experts. In those cases, the expert can testify so long as he or she does not significantly rely on the unreliable data, and so long as his or her testimony survives Rule 702 without any reliance on the excluded data.

Paoli Railroad Yard, 35 F.3d at 748-49 & n. 19.

The Third Circuit recently reiterated this view of Rule 703 in Montgomery County v. Microvote Corp., 320 F.3d 440 (3rd Cir.2003):

When a trial judge analyzes whether an expert’s data is of a type reasonably relied on by experts in the field, he or she should assess whether there are good grounds to rely on this data to draw the conclusion reached by the expert_If the data underlying the expert’s opinion are so unreliable that no reasonable expert could base an opinion on them, the opinion resting on that data must be excluded.

Id. at 448 (quoting In re TMI Litigation, 193 F.3d 613, 697 (3rd Cir.1999)). See also Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 198-99 (5th Cir.1996), in which the Fifth Circuit seemingly applied the same construction of Evidence Rule 703.

We additionally note that Evidence Rule 705(c) also supports the conclusion that scientific validity under Daubert and Coon is a prerequisite to admission of evidence under Rule 703. Rule 705(c) states:

When the underlying facts or data would be inadmissible ... for any purpose other than to explain or support the expert’s opinion or inference, the [trial judge] shall exclude the underlying facts or data if the danger that they will be used for an improper purpose outweighs their value as support for the expert’s opinion.

Whenever an expert witness proposes to base an opinion or inference on data derived from a test that has no demonstrable scientific validity, that data will have little or no probative force in support of the expert’s opinion, while at the same time there will obviously be an overriding danger that the data will be used for an improper purpose— the improper purpose of lending the aura of scientific respectability to an assertion that has no basis in science.

For these reasons, we reject Guerre-Chaley’s argument that Alaska Evidence Rule 703 allows the proponent of expert testimony to circumvent the Daubert-Coon rule. Instead, we hold that when data derived from a scientific test or analysis is offered under Rule 703, it is a prerequisite that the scientific test or analysis meet the test for admissibility under Daubert and Coon.

In reaching this conclusion, we express no opinion on the question of whether the preliminary breath test device could meet the standard set in Daubert and Coon for the admission of scientific evidence if this issue were litigated. It is conceivable that the preliminary breath test device provides a scientifically valid measurement of a person’s alcohol level, and that the test is sufficiently accurate that reasonable experts would rely on its results when performing the type of “retrograde extrapolation” analysis that Guerre-Chaley’s expert proposed.

But Guerre-Chaley’s case presents a different issue: Could Judge Funk properly require Guerre-Chaley to present evidence that the preliminary breath test device did indeed meet the Daubert-Coon test—and could the judge exclude the test results when Guerre-Chaley declined to present any evidence on this point? We conclude that the answer is “yes”.

In United States v. Iron Cloud, 171 F.3d 587, 590 (8th Cir.1999), the Eighth Circuit noted that “almost every state that has addressed the issue [of the scientific validity of preliminary breath test technology] has refused to admit the results of the test for purposes other than [establishing] probable cause”. The court then listed fifteen state decisions supporting this statement.

In Alaska, the use of the preliminary breath test is even more limited: a police officer can not require a motorist to submit to the preliminary breath test until after the officer has probable cause to believe that the motorist is driving while intoxicated. See Leslie v. State, 711 P.2d 575, 577 (Alaska App.1986), construing AS 28.35.031(b).

This appeal presents one additional question. Guerre-Chaley contends that Judge Funk erroneously instructed the trial jury in a way that prohibited the jurors from considering “retrograde extrapolation” when they decided what Guerre-Chaley’s blood alcohol level had been at the time she was driving. Specifically, Guerre-Chaley argues that Jury Instruction 17 barred the jurors from relying on the defense expert witness’s theory that, because Guerre-Chaley’s blood alcohol level was apparently rising between the time she took the DataMaster breath test at the police station and the time she had the independent blood test, one could infer that her blood alcohol level was significantly lower when she was stopped by the police.

Against this legal backdrop, we conclude that Judge Funk did not abuse his discretion when he required Guerre-Chaley to establish the admissibility of preliminary breath test results under the Daubert—Coon rule before he would allow Guerre-Chaley to offer expert testimony that relied on those results. And when Guerre-Chaley declined to offer any evidence on the Daubert—Coon issue, Judge Funk properly barred Guerre-Cha-ley’s expert witness from testifying about, or relying on, the preliminary breath test result.

We reject this claim of error for two reasons. First, Guerre-Chaley has failed to adequately brief it. Guerre-Chaley’s “argument” of this point consists of four concluso-ry sentences—two of them found on page 4 of Guerre-Chaley’s brief, and the other two found on page 9 of her brief. Guerre-Chaley does not discuss the wording of the challenged instruction, nor does she offer any explanation of why she believes that the instruction prohibited the jury from considering her theory of the case. This kind of briefing constitutes an abandonment of the claim of error.

Our second reason for rejecting Guerre-Chaley’s claim of error is that we have examined the challenged instruction and it does not, on its face, prohibit the jury from considering the testimony of Guerre-Chaley’s expert and the defense theory that Guerre-Chaley’s blood alcohol level was below 0.080 percent at the time she was driving. We note that the defense attorney in fact argued this chosen theory of defense (“retrograde extrapolation”) to the jury, and the prosecuting attorney never objected to the defense attorney’s argument or suggested to the jury that this argument was inconsistent with the law contained in the jury instructions.

To summarize:

We hold that even though Evidence Rule 703 states that expert witnesses can sometimes rely on underlying data that would not be independently admissible, if that underlying data is derived from scientific tests or methods, those scientific tests or methods must meet the Dauberb-Coon test for admissibility.

And we conclude that Guerre-Chaley’s jury instruction claim is both inadequately briefed and meritless.

For these reasons, the judgement of the district court is AFFIRMED.

      . Ms. Guerre-Chaley’s name is pronounced so that it rhymes with "rare chalet”.

      . AS 28.35.030(a).

      . See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (construing the federal evidence rules governing expert testimony), and State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting Daubert as the proper interpretation of Alaska’s rules governing expert testimony).

      . We recognize that the term "validity”, like the term "reliability”, has a narrow and specific meaning when used to describe a scientific test or procedure. As we explained in Ballard v. State, 955 P.2d 931, 934 n. 2 (Alaska App.1998), the "reliability” of a scientific test or procedure refers to the degree of uniformity in the results— the likelihood that the test or procedure will repeatedly yield the same results under the same testing conditions. In contrast, the "validity" of a test or procedure refers to the likelihood that the results accurately reflect the presence or absence of the thing the scientists are looking for.
      When we say "scientific validity”, we are not using "validity” in this narrow sense, but rather in the broader sense that the Alaska Supreme Court used the term in State v. Coon, 974 P.2d 386, 390 (Alaska 1999) — to wit, meeting the standards of, or deriving from, valid scientific methodology.

      . Id. at 747.

      . Id. at 748.

      . Id. at 590 n. 5.

      ."[T]he court over objection [sic — Judge Funk in fact modified the wording of this instruction at Guerre-Chaley’s request] gave [J]ury [I]nstruction 17 which would not allow the jury to find retrograde extrapolation, [citation to the record omitted] This constituted plain error.”

      . "In addition!,] the giving of [Jury] instruction ... 17 prevented [the] jury from finding retrograde extrapolation. This was plain error.”

      . See Petersen v. Mutual Life Insurance Co. of New York, 803 P.2d 406, 410 (Alaska 1990).


source: Caselaw Access Project

author: 'MANNHEIMER, Judge.

license: Public Domain

text:
    Gilbert Ralph CUSTER, Appellant, v. STATE of Alaska, Appellee.
    No. A-8634.
    Court of Appeals of Alaska.
    April 9, 2004.

      Jennifer P. Hite, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
    Windy 0. East, Assistant District Attorney, Kotzebue, John R. Vacek, District Attorney, Nome, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

'MANNHEIMER, Judge.

Gilbert Ralph Custer appeals the sentence he received when the superior court revoked his felony probation for the fourth time in case number 2KB-99-276 Cr and sentenced Custer to serve all of his remaining suspended jail time: 38 months. With the imposition of these 38 months’ imprisonment, Custer has now been sentenced to a total of 5 years to serve — the maximum sentence — for the offense of third-degree assault.

Custer contends that this sentence violates the sentencing rule announced by this Court in Austin v. State , and now codified in AS 12.55.125(k)(2): the rule that, in the absence of aggravating factors (as defined in AS 12.55.155(c)) or extraordinary circumstances (as defined in AS 12.55.165), a first felony offender should not receive a term longer than the presumptive term established by the legislature for a second felony offender convicted of the same offense. Custer also contends that his sentence is excessive because, even though his probation has been revoked a total of four times, the conduct underlying these four revocations has not involved serious criminality.

For the reasons explained here, we conclude that the superior court was not clearly mistaken when it imposed the 38-month sentence.

Facts relating to Custer’s two underlying convictions

Even though Custer has appealed only his sentence in case number 2KB-99-276 Cr, it is impossible to assess the propriety of that sentence without considering Custer’s sentence in a companion ease, number 2KB-99-367 Cr. Superior Court Judge Richard D. Saveli had both of these eases before him when he imposed the sentence that Custer now appeals (the sentence in case 99-276).

In 1999, Custer was convicted of two separate felonies: one count of third-degree assault that arose from an incident in May 1999, and another third-degree assault that arose from an incident one month later. Both crimes involved acts of significant domestic violence that Custer inflicted on L.C., the mother of his child.

In case number 2KB-99-276 Cr, Custer was convicted of third-degree assault for kicking down the door of L.C.’s house, beating her, and then trying to strangle her with a noose that he fashioned from electrical cord. This assault occurred on May 1, 1999.

A month later, on June 2nd, Custer was charged with attempted murder in case number 2KB-99-367 Cr after he again broke into L.C.’s home, stabbed her with a kitchen knife, and then beat her with a piece of firewood. This charge was later reduced to third-degree assault.

On June 27, 2000, Custer was sentenced for both of these felony assaults. In each case (99-276 and 99-367) he received a sentence of 5 years’ imprisonment with 4 years suspended — 1 year to serve.

Custer denies that he committed either crime. He asserts that L.C. lied about both incidents.

Custer’s criminal history before he committed these two felony assaults

Before Custer went to prison for these felony assaults, he had accumulated a lengthy history of alcohol-related crimes, both violent and non-violent. Between 1981 and 1998, Custer was convicted of the following misdemeanor offenses:

Offense Number of Convictions

escape seven

fourth-degree weapons misconduct six

fourth-degree assault four

driving while intoxicated five

resisting arrest . three

criminal trespass one

criminal mischief (damage to property) two

disorderly conduct four

Custer’s conduct while on felony probation

During the time that Custer was on felony probation, the State filed five petitions to revoke his probation.

The first petition was filed in February 2001; it alleged that Custer had violated the conditions of his probation by drinking. Custer’s blood alcohol level was tested at .190 percent on January 18, 2001 and at .200 percent on February 25,' 2001. This first petition was ultimately withdrawn at the request of Custer’s probation officer.

The second petition was filed in January 2002.' Custer was charged with more drinking, plus the commission of a new offense'— second-degree criminal mischief, for spray-painting obscenities on the side of a house. Ultimately, Custer admitted the drinking, the criminal mischief charge was dropped, and the superior court revoked 6 months of Custer’s previously suspended jail time.

The third petition was filed in October 2002; it alleged more drinking. Custer admitted this charge, and the superior court revoked another 30 days of Custer’s previously suspended jail time.

The fourth petition was filed in December 2002; again, Custer was charged with drinking. This time, Custer was found lying semiconscious in a Fairbanks residence. The owners of the residence discovered Custer in their house when they heard- him snoring, and they summoned the police to arrest this uninvited guest. Custer’s blood alcohol level was .354 percent. Custer admitted this charge, and the superior court revoked an additional 3 months of Custer’s previously suspended jail time.

The fifth petition — the current one — was filed in April 2003, This petition alleged that Custer had been drinking again and that he had refused to submit to a breath test at the request of a police officer. This time, Custer went to trial on the charges. Superior Court Judge Richard D. Saveli found that the charges were proved, and he imposed all of Custer’s remaining jail time — 38 months.

However, to understand Judge Saveli’s sentencing decision, it is important to know that each time Custer violated the conditions of his probation, the State filed petitions to revoke Custer’s probation in both of his felony cases (99-276 and 99-367). Thus, this was not only Custer’s fourth revocation of probation in case number 99-276, but also his fourth revocation in case number 99-367.

In fact, the Department of Corrections and the District Attorney’s Office both urged Judge Saveli to impose all of Custer’s remaining suspended jail time — not only the 38 months that remained in case number 99-276, but also the 44 months that remained in case number 99-367, for a total of 6 years and 10 months.

Judge Saveli acknowledged that Custer had a significant record of criminal violations, and that most (if not all) of these violations were related to alcohol. The judge concluded, based on Custer’s lengthy record of offenses, that Custer posed a danger to the public when he was intoxicated.

However, Judge Saveli hastened to add that he was not sentencing Custer for drinking. Rather, he was sentencing Custer for the two felony assaults that had put Custer in front of the court in the first place. Judge Saveli noted that Custer’s conduct on probation had not been good. Although Custer had not committed any new felony offenses, he had repeatedly failed to comply with the conditions of his probation and, just as important, he had repeatedly failed to benefit from, or follow up on, alcohol treatment.

Judge Saveli then announced:

The Court: I’m not going to revoke all [of Custer’s remaining] time [as the probation officer and the prosecutor have advocated], but I’m taking half of it. [And] I’m recommending [that Custer] be classified to ... the [Department of Corrections’] intensive residential inmate [substance abuse] treatment program.

Judge Saveli then imposed all of Custer’s remaining 38 months in case number 99-276, but the judge imposed only 3 months of Custer’s remaining 44 months in case number 99-367. The judge made these two sentences consecutive, for a total of 3 years, 5 months — out of a potential 6 years, 10 months.

Custer’s appeal would normally be dismissed because he failed to appeal both sentences

As we have just explained, Custer’s sentence in case number 99-276 was simply a component of a composite sentence that Judge Saveli imposed when he revoked Custer’s probation in both felony assault cases: 99-276 and 99-367.

When a defendant pursues a sentence appeal after the sentencing court has imposed a composite sentence for two or more criminal convictions, this Court assesses whether the defendant’s combined sentence is clearly mistaken, given the whole of the defendant’s conduct and history. Because the question is whether the combined sentence is justified in light of the entirety of the defendant’s conduct and history, the law does not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation.

For these reasons, an appellate court will not hear a defendant’s challenge to a composite sentence unless the defendant has appealed each of the sentences that contributes to the composite total — so that the court can meaningfully evaluate the whole. See Preston v. State, 583 P.2d 787, 788 (Alaska 1978).

Custer’s case is governed by these rules. His probation was simultaneously revoked in two separate cases, and both the parties and the superior court treated these two cases as a single consolidated case. The prosecutor and the defense attorney did not present separate arguments concerning the two underlying eases. Instead, both they and the superior court perceived that the issue to be decided at Custer’s sentencing was how much of Custer’s total suspended jail time from both cases — 6 years, 10 months — should be imposed for his violations of probation.

We have previously recognized that when a sentencing judge faces this type of case, the judge might not individually craft each of the defendant’s sentences. Judges are often more concerned with the total sentence that the defendant should receive rather than the precise amount of imprisonment to be imposed for each separate count. In such circumstances, the fact that the judge imposes a greater sentence on one count and a lesser sentence on another count may be wholly fortuitous.

The record indicates that this was the case with Custer’s sentencing. Judge Saveli sentenced Custer to 3 years, 2 months to serve in case number 99-276, but only a consecutive 3 months to serve in case number 99-367 (the case that arguably involved the more serious underlying conduct). The judge did not discuss the two cases separately; rather, he announced that he had decided to revoke half of Custer’s remaining suspended time. Half of Custer’s remaining time was 3 years, 5 months. It appears that Judge Saveli chose, to achieve this composite sentence through the administrative expedient of revoking all of Custer’s remaining time in case number 99-276 (thus ending Custer’s probation in that case), then revoking enough jail time in case number 99-367 to reach the total of 3 years, 5 months.

For obvious reasons, Custer has not appealed the imposition of the 3-month sentence in case number 99-367. He has appealed only his 3-year, 2-month sentence in case number 99-276. But it is improper to consider this second sentence in isolation. The question is whether Custer’s total sentence of 3 years, 5 months is clearly mistaken, given the whole of Custer’s criminal history, his conduct in the two underlying criminal cases, and his subsequent conduct on probation.

This being said, we have concluded that the present record allows us to properly evaluate Custer’s composite sentence. His pre-sentence report describes the facts underlying both criminal cases, the same probation revocation petitions were filed in both cases, and a single sentencing hearing was devoted to both cases. For these reasons, we conclude that we can properly decide the merits of this case. We will therefore overlook the procedural irregularity in Custer’s appeal (i.e., the fact that he has appealed only one of his two sentences).

Custer’s sentence does not violate the Austin rule

Custer has now received a total sentence of 5 years to serve for third-degree assault. This is the maximum sentence that can be imposed for this offense. Custer asserts that this 5-year sentence violates the rule codified in AS 12.55.125(k)(2) — that a first felony offender should normally receive no more time to serve than the presumptive term for a second felony offender convicted of the same offense.

But we have held that “when a history of probation violations establishes a person’s poor prospects for rehabilitation, that fact may be deemed an extraordinary circumstance justifying the imposition of a sentence in excess of the Austin limits.” Chrisman v. State, 789 P.2d 370, 371 (Alaska App.1990). As we explained in Chrisman,

The relevant question in such cases is whether the totality of the circumstances upon revocation of probation would have justified a sentence in excess of the Austin limits if known when the original sentence was imposed. Before finding that an offender’s probation violations justify a total sentence exceeding the applicable presumptive term for a second felony offender, the sentencing court must conclude that the offender’s poor conduct on probation, when viewed in conjunction with all of the originally available sentencing information, renders the case even more serious — and therefore deserving of even greater punishment — than the case of a typical second felony offender committing a typical offense of the same class.

Chrisman, 789 P.2d at 371.

Here, Custer was convicted of two separate, serious acts of domestic violence. Even though Custer’s prior criminal history included literally dozens of offenses, both violent and non-violent, he received relatively lenient sentences for these felony assaults: only 1 year to serve in each case.

It is apparent from Custer’s criminal history that he has struggled with alcoholism for at least two decades. It is also apparent that Custer has repeatedly resorted to violence and other anti-social behavior when he is intoxicated. Custer’s felony probation was intended to provide him with an avenue for coping with his alcohol problem, but his history on probation has been one relapse after another. Judge Saveli could reasonably conclude that Custer would continue to fail at alcohol treatment, and thus continue to pose a danger to the public, unless Custer was in prison and was forced to participate in a treatment program.

For these reasons, we conclude that the facts of Custer’s probation violations constituted good cause for a sentence exceeding the normal Austin ceiling.

Custer’s composite sentence is not clearly mistaken

Custer contends that his 3-year, 2-month sentence in case number 99-276 is mistakenly severe. But, as we explained above, the real question is whether Custer’s composite sentence in both cases — his sentence of 3 years, 5 months — is clearly mistaken, given the whole of Custer’s criminal history, the conduct underlying his two felony assault convictions, and his behavior while on probation.

Custer faced revocation of his probation in both of his felony assault cases, and he therefore faced a total of 82 months (6 years, 10 months) of previously suspended jail time, when he appeared in front of Judge Saveli for the revocation sentencing hearing on June 9, 2003. Given Custer’s two underlying felony offenses, his lengthy list of other offenses, and his repeated failures to cope with his alcohol problem during his felony probation, Judge Saveli was not clearly mistaken when he imposed half of Custer’s remaining suspended time — 3 years, 5 months.

Conclusion

The sentencing decision of the superior court is AFFIRMED.

      . 627 P.2d 657, 657-58 (Alaska App. 1981).

      . Brown v. State, 12 P.3d 201, 210 (Alaska App.2000); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App.1987).

      . Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v. State, 765 P.2d 107, 109 (Alaska App.1988); Comegys, 1A1 P.2d at 558-59.

      . See Attain v. State, 810 P.2d 1019, 1022 (Alaska App.1991).

      . Id.

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).