Opinion
A-13175
02-09-2022
CARL JOHN KONIG, Appellant, v. STATE OF ALASKA, Appellee.
Marilyn J. Kamm and Margot Knuth, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4BE-17-00261 CR & 3KN-15-00248 CR, Bethel, Dwayne W. McConnell, Judge.
Marilyn J. Kamm and Margot Knuth, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
A jury found Carl John Konig guilty of second- and third-degree assault stemming from an April 2017 altercation with family members in Bethel in which Konig repeatedly punched his aunt in the head, breaking her jaw in three places. The superior court merged the third-degree assault into the second-degree assault, and sentenced Konig to 10 years flat, restricting his eligibility for discretionary parole. Based on the same incident, the court revoked Konig's probation in a separate case and imposed all of his remaining suspended time (13 months) - again restricting his eligibility for discretionary parole.
AS 11.41.210(a)(2) and AS 11.41.220(a)(5), respectively. Konig was found not guilty of a separate charge for resisting arrest. AS 11.56.700(a)(1).
On appeal, Konig claims that the prosecutor's closing argument at his trial was improper and mischaracterized the law of self-defense and the lesser included offense of disorderly conduct. Accordingly, he argues that the superior court erred in overruling his objection to the closing statements and in denying his motion for a mistrial. We disagree.
See AS 11.61.110(a)(5) ("A person commits the crime of disorderly conduct if, . . . in a public or private place, the person challenges another to fight or engages in fighting other than in self-defense[.]").
At trial, Konig did not dispute that he caused serious physical injury to another person. Rather, he argued that he acted in self-defense and, in the alternative, that he was engaged in mutual combat (amounting to the lesser included offense of disorderly conduct). Konig asserted that his lack of injuries did not necessarily defeat his theories of defense, and he elicited testimony that someone like Mike Tyson, a famous boxer, could emerge from a consensual fight with no injuries. In its closing argument, the State then invoked this analogy, telling the jury that the victim had not "sign[ed] a contract or an endorsement deal to be in a boxing match."
Konig obj ected to the prosecutor's comment and moved for a mistrial. The superior court overruled the objection and denied the motion for a mistrial, finding that the prosecutor's argument did not extend beyond the parameters of what the State was allowed to argue in response to Konig's claims of self-defense and mutual combat. On appeal, Konig argues that the prosecutor's remark mischaracterized the law of self-defense and improperly suggested that mutual combat required a signed agreement. We have reviewed the record, and we conclude that the prosecutor's remark was a fair comment on Konig's defense and was unlikely to have been understood the way Konig claims. We therefore reject this claim on appeal and affirm Konig's conviction for second-degree assault.
Konig also makes a number of arguments related to his sentence.
As a third felony offender, Konig was subject to a presumptive sentencing range of 4 to 10 years for the second-degree assault conviction. At the sentencing hearing, the court found by clear and convincing evidence the existence of seven non-Blakely aggravating factors based primarily on Konig's extensive criminal history, which included multiple prior convictions for assault at both the misdemeanor and felony levels. The court also determined that Konig was a worst offender based on his criminal history and his conduct in this case, and it sentenced Konig to a term of imprisonment of 10 years flat-a sentence within the presumptive range which was also the maximum sentence for second-degree assault. The court also separately restricted Konig's eligibility for discretionary parole.
.See AS 11.41.210(b); former AS 12.55.125(d)(4) (2017).
AS 12.55.155(c)(7) (prior more serious felony); (c)(8) (history of assaultive behavior based on past criminal convictions); (c)(15) (three or more prior felonies); (c)(19) (juvenile adjudication that would have been a felony if committed by an adult); (c)(20) (on probation or parole for another felony); (c)(21) (history of criminal conduct similar to current offense); and (c)(31) (five or more misdemeanor convictions).
See Howell v. State, 115 P.3d 587, 593 (Alaska App. 2005) (noting that a worst offender finding may be based on the facts and circumstances surrounding the offense, the defendant's criminal history, or both).
On appeal, Konig argues that the superior court erred in failing to set out with specificity what weight it gave to various aggravating factors as required by Juneby v. State. But Konig overlooks that, because the court did not impose a sentence outside of the presumptive range, Juneby does not apply. The court accordingly was not required to provide an explanation as to how each aggravating factor individually affected its sentencing decision. In fact, because the high-end of the presumptive range was the same as the statutory maximum sentence, the court could impose a statutory maximum sentence even without finding any aggravating factors. And the court did provide a thorough discussion of the Chaney criteria as applied to this case, determining that Konig's extensive criminal history, his limited prospects for rehabilitation or deterrence, and the need for isolation and community condemnation all justified a lengthy jail sentence.
See Juneby v. State, 641 P.2d 823, 846 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
See id. (holding sentencing courts must make specific findings "in order to determine the amount by which the presumptive sentence for the particular offense should be adjusted" (emphasis added)).
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Konig also argues that the superior court erred in finding him a worst offender. We have reviewed the record, and we conclude that it supports the superior court's finding that Konig was a worst offender based both on his extensive criminal history and on the circumstances of the present case. Therefore, the court was authorized to sentence Konig to the maximum term of imprisonment, and its decision to do so in this case was not clearly mistaken.
The record shows that Konig had fourteen adjudications as a juvenile (including four adjudications for assault), twelve prior misdemeanor convictions (including at least four convictions for fourth-degree assault), and three prior felony convictions (including two for third-degree assault and one for conspiracy to commit first-degree robbery).
See Howell, 115 P.3d at 592-93 (providing that generally a maximum sentence cannot be imposed "without some foundation for characterizing a defendant as the worst type of offender" (quoting State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975))).
Konig also argues that the superior court erred by restricting his parole eligibility without making sufficient findings. But a review of the court's sentencing remarks demonstrates that the court undertook an extensive analysis of the Chaney criteria and made findings regarding the necessity of Konig's isolation, the high level of community condemnation of domestic violence crimes, and the ongoing need to protect the public from Konig's violent tendencies. Moreover, the superior court found that Konig had a history of failing to reform - he had been unsuccessful on probation, had failed to complete numerous attempts at treatment, and had continued to offend despite serving lengthy prison sentences. The court ultimately determined that Konig is "a danger to the community and will be when [he] get[s] out." Based on these findings and the highly aggravated nature of this case, we conclude that the superior court's decision to restrict Konig's eligibility for discretionary parole was not clearly mistaken.
See State v. Korkow, 314 P.3d 560, 566 (Alaska 2013) (concluding that the trial court's decision to restrict parole eligibility was not clearly mistaken where the court considered relevant Chaney factors and made specific findings that parole restriction was necessary to protect victims and society for an extended period of time due to the "severity of the case"); Stern v. State, 827 P.2d 442, 453 (Alaska App. 1992) (concluding that the defendant's record supported the trial court's finding that he was "a clearly dangerous offender whose capacity for parole supervision had been sufficiently tested (and found wanting), and that [he] should not be paroled in the future").
Lastly, Konig challenges the basis for the superior court's decision to impose all of the remaining suspended time and restrict his eligibility for discretionary parole in the separate probation revocation case. Specifically, Konig argues that the court erred by failing to separately analyze the sentencing criteria as applied in the probation revocation context. But, as we have discussed, during the sentencing hearing, the superior court engaged in a comprehensive review of the circumstances of Konig's offense, his background, and the Chaney criteria. The court ultimately found, and the record supports, that Konig would not benefit from further supervision and would likely present an ongoing danger when he is released. Because this Court evaluates the composite sentence received in light of the entirety of an individual's conduct and criminal history, we conclude that the court's decision to impose the remainder of Konig's suspended time and restrict his parole eligibility in the separate probation case was not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Felber v. State, 243 P.3d 1007, 1013 (Alaska App. 2010) (explaining that when a judge sentences a defendant for two or more offenses, Alaska law does not require that each specific sentence be individually justifiable; the question is whether the composite sentence is justified, given the whole of the defendant's conduct and background).
For these reasons, we AFFIRM the judgments of the superior court in both cases.