Opinion
Court of Appeals No. A-8688.
February 22, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge. Trial Court No. 3AN-01-7161 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted James M. Croughen of assault in the first degree, a class A felony. Croughen appeals, arguing that Superior Court Judge Stephanie E. Joannides erred in failing to sua sponte instruct the jury on heat of passion as an affirmative defense to the assault charge. He also argues that Judge Joannides committed plain error by sentencing him to more than the presumptive 7-year term for the assault based upon her finding that Croughen showed "deliberate cruelty" towards his victim. Croughen argues that under the United States Supreme Court's recent decision in Blakely v. Washington, Judge Joannides could enhance his sentence based on this aggravating factor only if a jury found the aggravator beyond a reasonable doubt. We conclude that Judge Joannides did not commit plain error in failing to sua sponte instruct the jury that heat of passion was a defense to assault. However, we conclude that Judge Joannides committed plain error by enhancing Croughen's sentence beyond the 7-year presumptive term for assault in the first degree because the "deliberate cruelty" aggravator was not found by a jury beyond a reasonable doubt.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Facts and proceedings
On the night of September 9, 2001, Matthew Dugan and Don Winter went out drinking at the Cheechako Bar in Anchorage. While they were out, they ran into Croughen, an acquaintance of theirs. Dugan and Winter were roommates, and later returned to the home they shared with Dugan's girlfriend, Autumn Miller. Matthew Dugan's father, Michael Dugan, was also staying with them at that time.
Around 2:00 or 2:30 a.m., Croughen arrived at Dugan's and Winter's home. Croughen was intoxicated when he arrived, and he continued to drink. Michael Dugan was in a sleeping bag on the living room floor attempting to sleep, but Croughen kept hitting Dugan's feet in an attempt to persuade him to get up and drink with him. Michael Dugan became angry and told him to stop. When Croughen did not stop, Michael Dugan told him to leave. Matthew Dugan and Winter also told Croughen to leave. When Croughen failed to do so, Michael Dugan got up and punched him, knocking him unconscious. Michael Dugan then picked up Croughen and dropped him outside on the sidewalk.
Autumn Miller objected to leaving Croughen on the sidewalk, so the three men went outside and attempted to rouse him and get him to leave. Croughen did not respond, so the three men carried him into the arctic entry. At this point the men decided that Croughen was not unconscious, but was "faking it." They then became concerned about leaving Croughen in the entryway because he might be "mad" about what happened. So, the men decided to put Croughen in his own truck and drive him up the block.
The men loaded Croughen into the truck and Michael Dugan drove off with him alone. Michael Dugan recalled that he drove Croughen to a park about two blocks away. Dugan struck a telephone pole (either intentionally or accidentally) as he attempted to park the truck. He then got out of the truck and began to walk away, but heard tires squealing as the truck came at him. He was only able to get two or three steps before being struck. After he was hit Dugan recalled seeing:
[Croughen] getting out [of the truck] and coming over and yelling and screaming and raising his hands, wanting to fight. And I recall that my right leg was up next to my head and I untangled it, laid it down, thinking that I could get up and defend myself, to which I tried many times and couldn't.
Dugan did not recall Croughen punching him, but an eyewitness heard Dugan wailing while Croughen repeatedly struck him with his fists saying, "you fucking wrecked my truck. I'm fucking going to kill you." This witness then called 911.
As a result of this call, Anchorage Police Sergeant William Richardson was dispatched to the scene. Sergeant Richardson observed that Dugan had been "crushed into a fence with both of his legs broken directly in half between the knee and ankle [and bent at such an angle that] his toes were touching his thighs." Sergeant Richardson also worried that the paramedics were going to have a difficult time extricating Dugan from the fence because "[h]is legs were basically torn in half, and [were] all mixed together with the fence."
In the meantime, Croughen drove back to Matthew Dugan's house and entered, screaming that he had beaten up Michael Dugan and was going to kill Matthew Dugan and Winter for trying to kill him. Croughen was then apprehended at Matthew Dugan's residence by the police.
Croughen was later interviewed by Anchorage Police Detective Phillip Brown. During this interview Croughen admitted that he "intentionally ran over Mr. Dugan." Croughen also conceded that after he ran over Dugan, "he got out of the truck and went over and started hitting Mr. Dugan about the face."
Croughen was indicted on one count of attempted first-degree murder, and one count of first-degree assault. At trial, Croughen relied on the heat of passion defense to attempted first-degree murder. The jury was unable to reach a verdict on the attempted murder charge. However, the jury did return a guilty verdict on the charge of first-degree assault. The jury unanimously found that Croughen was guilty of the assault under the theory that he "intentionally caused serious physical injury to Michael Dugan."
AS 11.31.100 AS 11.41.100.
AS 11.41.200 (a)(1), (2) or (3).
AS 11.41.200(a)(2).
Judge Joannides sentenced Croughen to 10 years with 4 years suspended — 6 years to serve.
Judge Joannides did not commit plain error by failing to sua sponte instruct the jury that heat of passion was an affirmative defense to assault in the first degree
As discussed earlier, Croughen was charged with attempted first-degree murder, but the jury failed to reach a verdict on that charge. Croughen argues that if the jury had found that he intended to kill Dugan, it would also have found that he acted in the heat of passion. If Croughen had successfully proved the defense of heat of passion, his offense would have been reduced to attempted manslaughter, a class B felony charge, and he would not have faced a presumptive term of imprisonment. The upper sentencing limit for a first felony offender who commits a typical or moderately aggravated class B felony is 4 years of imprisonment.
See AS 11.41.115; Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003).
See former AS 12.55.125(d) (2004).
State v. Jackson, 776 P.2d 320, 326 (Alaska App. 1989).
The jury did not convict Croughen of attempted manslaughter but of first-degree assault, a class A felony. He therefore faced a 7-year presumptive term. The jury was not instructed that heat of passion was a defense to first-degree assault. Croughen argues that Judge Joannides should have given the jury a heat of passion instruction for the assault charge, which he argues would have allowed the jury to reduce his offense to a class B felony. Although he did not ask for such an instruction, he argues that Judge Joannides committed plain error by not giving it sua sponte.
AS 11.41.200(b).
See former AS 12.55.125(c)(2)(A) (2004).
In order to show plain error, the defendant must show that the error is "so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection" and "so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice." This is the standard that Croughen must meet to establish that Judge Joannides should have sua sponte instructed the jury on the affirmative defense of heat of passion on the assault in the first-degree charge.
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Alaska's "heat of passion" defense is codified in AS 11.41.115, titled "Defenses to murder." Under subsection (a) of the statute, it is a defense to a prosecution for first-degree murder under AS 11.41.100(a)(1)(A) (intentionally causing the death of another) or second-degree murder under AS 11.41.110(a)(1) (causing the death of another with the intent to cause serious physical injury) if "the defendant acted in a heat of passion, before there had been a reasonable opportunity for the passion to cool, when the heat of passion resulted from a serious provocation by the intended victim." Successfully proving the defense will reduce either crime to manslaughter. However, AS 11.41.115(e) specifically provides that the heat of passion section of the statute does not preclude "a prosecution for or conviction of manslaughter or any other crime not specifically precluded." Therefore, AS 11.41.115 appears to preclude applying a heat of passion defense to assault in the first degree.
Despite the wording of the statute, Croughen relies on this court's decision in Dandova v. State, to argue that the legislature must have intended to extend the heat of passion defense to assault in the first degree. In Dandova, this court interpreted AS 11.41.115 to extend the defense of heat of passion to a charge of attempted murder. But in Dandova, we pointed out that an attempt to commit a crime did not occur in the abstract, but only in connection with the underlying substantive offense. We relied on prior authority that construed statutes that explicitly applied to substantive offenses to also apply to attempts to commit those offenses. We concluded that the legislature must have intended the heat of passion defense to apply to attempted murder.
Id. at 331-32.
Id. at 331.
[I]f the heat of passion defense did not apply to defendants charged with attempted murder, this would create severe and illogical disparities in sentencing. A defendant who, acting in the heat of passion, intentionally killed another person would face conviction for manslaughter and a sentence of up to 20 years' imprisonment. But a similarly situated defendant, likewise acting in the heat of passion, who tried to kill another person but failed would face conviction for attempted murder and a sentence of up to 99 years' imprisonment. It is inconceivable that, between these two defendants, the legislature intended to impose a five-fold penalty on the unsuccessful assailant.
Id. at 331-32 (emphasis in original) (citations omitted).
But in Dandova, we pointed out that the legislature had only applied the heat of passion defense to murder (including attempted murder). We specifically referred to and rejected the argument that Croughen now raises:
Of course, if the defendant succeeds in seriously wounding their victim, then even though the attempted murder charge may ultimately result in a conviction for attempted manslaughter (a class B felony) on account of the defendant's heat of passion, the defendant can still be convicted of first-degree assault (a class A felony) — because heat of passion is a defense only to the specified forms of murder.
Id. at 332 (citing AS 11.41.115(e)).
Croughen also relies on our decisions in New v. State and Pruett v. State to argue that we should modify the 7-year presumptive sentence that applies to convictions for assault in the first degree. He argues that the presumptive term is manifestly unjust when applied to a person who commits the assault in the heat of passion. In New and Pruett, the defendants had been convicted of assault in the first degree on the theory that they recklessly caused serious physical injury by means of a dangerous instrument. By statute, a defendant convicted of assault in the first degree who used a dangerous instrument in committing the offense faced a presumptive term of 7 years of imprisonment. But a defendant who, under the same circumstances, recklessly killed a person, would be convicted of manslaughter, and face a 5-year presumptive sentence. Therefore, under the same circumstances, if the victim lived, the defendant would face a presumptive term of 7 years of imprisonment. But if the victim died, the defendant would face a presumptive term of 5 years of imprisonment. We concluded that the legislature could not have intended this result. We therefore applied the 5-year presumptive term to Pruett, and vacated New's sentence and remanded his case to a three-judge panel for resentencing.
714 P.2d 378, 384 (Alaska App. 1986).
742 P.2d 257, 262-63 (Alaska App. 1987), overruled on other grounds by State v. Wentz, 805 P.2d 962, 963-65 (Alaska 1991).
AS 11.41.200(a)(1) ; Pruett, 742 P.2d at 263; New, 714 P.2d at 383.
Pruett, 742 P.2d at 263; New, 714 P.2d at 383.
Pruett, 742 P.2d at 263.
New, 714 P.2d 384-85.
Croughen argues that his case creates a similar anomaly and that we should modify the sentencing range in his case. But New and Pruett presented a much more compelling circumstance. In New and Pruett, the only difference between the offenses the defendants committed and manslaughter was the fact that the victim lived. Clearly the legislature could not have intended the more severe punishment to fall on the defendant whose victim lived. But in Croughen's case, we do not know whether the jury would have found that he acted in the heat of passion. And Croughen had the opportunity to establish mitigating factors that were similar to heat of passion — that he had "acted with serious provocation from the victim" and that "the victim provoked the crime to a serious degree." Judge Joannides found these two mitigating factors. The presence of these mitigating factors authorized Judge Joannides to reduce Croughen's sentence to 3½ years of imprisonment.
Former AS 12.55.155(d)(6) (7) (2000), respectively.
See former AS 12.55.155(a)(2) (2004).
Furthermore, attempted manslaughter is a different offense than assault in the first degree. A defendant can commit attempted manslaughter without injuring the victim. In convicting Croughen of assault in the first degree, the jury found that he intentionally caused serious physical injury to the victim. We do not see the sentencing disparity in this circumstance as similar to the one we encountered in New and Pruett. Therefore, Judge Joannides did not commit plain error in failing to instruct the jury on heat of passion.
Judge Joannides committed plain error by sentencing Croughen to a sentence greater than the 7-year presumptive term for assault in the first degree
Croughen was convicted of first-degree assault under the theory that he intentionally caused serious physical injury to another. As noted earlier, assault in the first degree is a class A felony that, at the time of Croughen's offense, carried a 7-year presumptive sentence for a first-felony offender.
AS 11.41.200(a)(2).
Under this former statute, the sentencing judge determined the existence of specified aggravating and mitigating factors. Judge Joannides found one aggravating factor, that Croughen showed "deliberate cruelty" towards his victim. Judge Joannides found two mitigating factors, that Croughen had "acted with serious provocation from the victim" and that "the victim provoked the crime to a significant degree." Based on the aggravating factor, Judge Joannides imposed a sentence of 10 years of imprisonment. But she suspended 4 years of imprisonment and placed Croughen on probation following his release from confinement.
Former AS 12.55.155(f) (2004).
Former AS 12.55.155(c)(2) (2004).
Former AS 12.55.155(d)(6) (7) (2004), respectively.
Croughen never objected to any of the procedures Judge Joannides followed, which were authorized by our former statutes. But following Croughen's sentencing, the United States Supreme Court decided Blakely v. Washington.
In Blakely, as reaffirmed in the Court's later decision in United States v. Booker, the Court held that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to the jury beyond a reasonable doubt."
543 U.S. 220, ___, 126 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
Id., 125 S.Ct. at 756.
Croughen argues that whether he acted with "deliberate cruelty" was a factual determination that, under Blakely, a jury had to find beyond a reasonable doubt. Blakely had not been decided at the time that Judge Joannides sentenced Croughen and Croughen made no objection to the procedure that she followed. However, as we recently held in Haag v. State, under federal law, Croughen is entitled to seek relief based on the fact that the sentencing procedures in his case did not comply with Blakely because his judgment was on direct appeal when Blakely was decided. But, because Croughen did not object to those procedures in the trial court, he must show plain error.
117 P.3d 775 (Alaska App. 2005).
Id. at 783.
Id.
The State argues that Croughen's Blakely challenge is not ripe because Judge Joannides only imposed suspended time based on the aggravating factor. The State relies on State v. Gibbs. But we rejected this argument in Haag. Under the former Alaska sentencing statutes, Judge Joannides had no authority to impose a sentence, even a suspended sentence, in excess of the 7-year presumptive term without finding an aggravating factor.
105 P.3d 145 (Alaska App. 2005).
Former AS 12.55.155(c)(2) set out the aggravating factor that "the defendant's conduct during the commission of the offense manifested deliberate cruelty to another person." In Juneby v. State, we reviewed a sentencing court's finding that the defendant had acted with deliberate cruelty. We stated:
641 P.2d 823 (Alaska App. 1982).
In order to decide whether the sentencing court's ruling was correct, we must determine the meaning of "deliberate cruelty" as the term is used in AS 12.55.155(c)(2). Webster's Dictionary defines the word cruelty to mean: "(1) the quality or condition of being cruel. . . ." The word cruel is, in turn, defined as follows:
(1) deliberately seeking to inflict pain and suffering; enjoying other's suffering; without mercy or pity. . . .
The word cruelty thus denotes the infliction of pain or suffering for its own sake, or for the gratification derived therefrom. We think that, in accordance with this common definition, the term "deliberate cruelty," as used in AS 12.55.155(c)(2) must be restricted to instances in which pain — whether physical, psychological, or emotional — is inflicted gratuitously or as an end in itself. Conversely, when the infliction of pain or injury is merely a direct means to accomplish the crime charged, the test for establishing the aggravating factor of deliberate cruelty will not be met.
Id. at 840.
We went on to observe that "the question of whether the aggravating factor of deliberate cruelty has been established by clear and convincing evidence is essentially a factual one." We remanded the case to allow the trial court to make this factual determination according to the definition that we set out. We have followed the Juneby definition of deliberate cruelty in other cases. We observe that in Blakely, the aggravating factor that the Washington sentencing judge found to increase the defendant's sentence above the standard range was that the defendant had acted with "deliberate cruelty." The Supreme Court concluded that the sentencing judge could not impose a higher sentence based upon his finding that Blakely had acted with deliberate cruelty because Blakely was entitled to have a jury determine the existence of the deliberate cruelty aggravating factor before he faced an enhanced sentence.
Id.
Wright v. State, 46 P.3d 395, 397 (Alaska App. 2002); Machado v. State, 797 P.2d 677, 688-89 (Alaska App. 1990); Jones v. State, 765 P.2d 107, 109 (Alaska App. 1988); Pruett, 742 P.2d at 261; Peetook v. State, 655 P.2d 1308, 1311 (Alaska App. 1982).
In 2005, the Alaska legislature revised the criminal code to comply with the Blakely decision. In that code, the legislature retained the aggravating and mitigating factors from the prior code. In modifying the criminal code to comply with Blakely, the legislature set out some aggravating factors that must be established by clear and convincing evidence before the court sitting without a jury. These aggravating factors are generally based on the defendant's prior criminal history. The legislature required the State to prove other aggravating factors to a jury beyond a reasonable doubt. One of the aggravating factors that the State must prove to a jury beyond a reasonable doubt in the new criminal code is that the defendant's conduct manifested deliberate cruelty. Therefore, in all cases under the 2005 criminal code, the State will be required to prove the deliberate cruelty aggravator to a jury.
AS 12.55.155(f)(1).
AS 12.55.155(f)(2).
Id.
Against this background, we conclude that whether Croughen acted with deliberate cruelty, was, after Blakely, a factual question for the jury to resolve. We conclude that the proper definition of deliberate cruelty is the one that we first set out in Juneby. The term "deliberate cruelty" must be restricted to instances in which pain — whether physical, psychological, or emotional — is inflicted gratuitously or as an end in itself.
Juneby, 641 P.2d at 840.
We accordingly conclude that, under the Blakely decision, Judge Joannides committed plain error by finding the aggravating factor that Croughen acted with "deliberate cruelty" and in enhancing his sentence based on the aggravator. Therefore, Croughen must be resentenced.
See Haag, 117 P.3d at 785.
Croughen's conviction for assault in the first degree is AFFIRMED. His sentence is VACATED, and his case is REMANDED to the superior court for resentencing.
The majority opinion acknowledges that Croughen's "heat of passion" argument is presented to us as a claim of plain error, but then the majority proceeds to analyze the merits of that claim in great detail. I would adopt a different approach.
A proponent of plain error must show that the claimed error was so obvious that any competent judge or attorney would have recognized it. For this reason, a claim of plain error fails if reasonable judges could disagree concerning the proper resolution of that claim.
See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).
Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005); Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001); Marrone, 653 P.2d at 676.
As the majority opinion points out, Alaska's heat of passion statute, AS 11.41.115(a), declares that this defense applies only to prosecutions for certain types of murder. Another subsection of the statute, AS 11.41.115(e), expressly states that the heat of passion defense does not apply to prosecutions or convictions for manslaughter "or any other crime not specifically [covered by subsection (a)]." And in Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003), this Court recognized that the heat of passion defense does not apply to prosecutions or convictions for first-degree assault.
In light of all this, and regardless of what arguments might be made in favor of expanding the currently recognized scope of the heat of passion defense, it is obvious that at least some reasonable judges could conclude that Alaska's heat of passion defense does not apply to first-degree assault prosecutions. Croughen's claim of plain error therefore fails.