COATS, Chief Judge.
Nathan L. Strickland pled no contest to two counts of assault in the second degree, a Class B felony. Superior Court Judge Beverly W. Cutler imposed a composite sentence of 11 years with 2 years suspended. Judge Cutler revoked Strickland's driver's license for a period of 10 years and placed him on probation for a period of 5 years following his release from confinement. Strickland appeals, arguing that his sentence is excessive. He also argues that Judge Cutler erred in not giving him credit for time served for the period of release on bail. We affirm Judge Cutler's rulings.
AS 11.41.210(a)(2).
Factual background
On April 28, 1999, at approximately 11:00 p.m., Strickland was driving on Knik Goose Bay Road. He attempted to pass two cars. While he was passing, Strickland caused a high-speed head-on collision with a car driven by Michael Caldwell. Caldwell died from injuries which he received in the collision. Travis Carpenter, a passenger in Caldwell's car, suffered serious physical injury. There were two passengers in Strickland's car: Tammy Sloan and her son, Zach Berton, age 14. Sloan, Burton, and Strickland were also seriously injured in the accident. A blood sample taken at the hospital indicated that Strickland had a blood alcohol level of .056 percent.
The State charged Strickland with one count of murder in the second degree, two counts of assault in the first degree, one count of assault in the second degree, and one count of reckless driving. Strickland entered into a plea bargain with the State and pled no contest to two counts of assault in the second degree.
Assault in the second degree is a class B felony. Strickland had a prior felony conviction for theft in the second degree, therefore he was subject to sentencing as a second felony offender. A second felony offender is subject to a presumptive sentence of 4 years of imprisonment on a class B felony.
AS 12.55.125(d)(1).
The State presented evidence that Strickland was passing at night, on a hill, and in a no-passing zone at a speed over 90 miles per hour. Strickland contended that he was driving the speed limit and pulled out to pass two cars. The second car sped up, preventing him from passing. Judge Cutler did not completely resolve this conflict. But she did conclude that Strickland "was probably going pretty fast." She concluded that Strickland had made an "extremely reckless pass." She found that the evidence did not support the conclusion that Strickland was drunk, but that he had engaged in extremely reckless conduct, whether drunk or sober. She pointed out that Strickland had "very recently got[ten] out of jail" and had previously failed on probation. She found that, given Strickland's record, it was reasonable to conclude that he needed to be deterred by a substantial sentence.
We conclude that Judge Cutler's findings support the sentence of 9 years to serve. Strickland was a second felony offender and engaged in extremely reckless behavior which resulted in the death of Michael Caldwell and serious injury to three other people not including Strickland himself. It seems reasonable for Judge Cutler to impose a sentence analogous to the term of imprisonment Strickland might have received for a single count of manslaughter. (As a second felony offender Strickland would have faced a presumptive term of 10 years of imprisonment). We conclude that the sentence of 11 years with 2 years suspended is not clearly mistaken.
Judge Cutler did not err in denying Strickland credit for time served for time he spent on bail
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
In Nygren v. State, this court, relying on former cases decided by the Alaska Supreme Court, concluded that whether a person was to receive credit for time served while released on bail turned on whether the person was "subjected to restrictions approximating those experienced by one who is incarcerated." In Nygren, we set out a description of the types of institutional placements that would normally be considered the equivalent of incarceration:
658 P.2d 141 (Alaska App. 1983).
Id. at 146 (citations omitted).
[R]esidents are invariably there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to twenty-four hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission.
One of the requirements to get credit under Nygren is that the restrictions have to be "initiated by specific court order." According to the record in Strickland's case, the court did not order that Strickland be subject to the stringent conditions. Those conditions were imposed by a private bail bondsman. Furthermore, the person monitoring Strickland's release could and did grant permission for Strickland to conduct various activities away from his residence. After hearing the evidence, Judge Cutler concluded that Strickland had not shown that he was sufficiently deprived of his freedom to get credit for time served. But she did suggest that Strickland could file a motion to reconsider if he wanted to put on additional evidence or make further argument that he was entitled to credit for time served. (Apparently Strickland did not do this.)
Id.
We conclude that Judge Cutler did not err in denying Strickland credit for time served for the time he spent released on bail. In the first place, it appears that Strickland would not qualify for credit for time served because his restrictions were imposed by a private bail bondsman rather than by the court. Furthermore, Judge Cutler concluded that the restrictions were not sufficiently stringent to require her to give Strickland credit for time served. Strickland has not convinced us that Judge Cutler erred in arriving at this conclusion. Therefore, for both of these reasons, we conclude that Judge Cutler did not err in denying Strickland credit for time served.
Conclusion
We conclude that the sentence which Judge Cutler imposed was not clearly mistaken. We further conclude that Judge Cutler did not err in refusing to give Strickland credit for time served while he was on bail release.
The sentence is AFFIRMED.