Opinion
A-14014 0392
10-16-2024
JORDAN MARK, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Bailey J. Woolfstead, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Bethel, Trial Court No. 4BE-20-00328 CR Michael A. MacDonald, Judge.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Bailey J. Woolfstead, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Jordan Mark pleaded guilty, pursuant to a plea agreement, to first-degree murder. Sentencing was left open to the court, and the superior court imposed a sentence of 99 years and a fine of $50,000.
AS 11.41.100(a)(1)(A).
Mark now appeals his sentence as excessive. On appeal, Mark challenges the superior court's finding that he was a worst offender, citing his lack of criminal history. He also argues that the superior court did not adequately account for his prospects for rehabilitation, given that he was only eighteen years old at the time of the murder and a first offender.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that "reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence" and that a reviewing court will not modify a sentence that falls within "a permissible range of reasonable sentences."
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997) (citation omitted).
A worst offender finding may be based on a defendant's criminal history or the seriousness of the crime. And, although we have stressed that it is "particularly important in first-degree murder cases involving youthful first offenders that rehabilitation and individual deterrence . . . be accorded careful scrutiny and appropriate weight," we have approved 99-year sentences for youthful offenders based on the seriousness of the murders they committed.
Nelson v. State, 874 P.2d 298, 310 (Alaska App. 1994); Looney v. State, 826 P.2d 775, 780 (Alaska App. 1992); Moore v. State, 597 P.2d 975, 976 n.4 (Alaska 1979).
Riley v. State, 720 P.2d 951, 952-53 (Alaska App. 1986).
See Gray v. State, 267 P.3d 667, 674-75 (Alaska App. 2011); Colgan v. State, 838 P.2d 276, 279 (Alaska App. 1992); Ling v. State, 2008 WL 2152028, at *2 (Alaska App. May 21, 2008) (unpublished); Perotti v. State, 843 P.2d 649, 651 (Alaska App. 1992); Hightower v. State, 842 P.2d 159, 161 (Alaska App. 1992).
As we will explain, the facts underlying Mark's conviction were particularly heinous. We therefore conclude that his sentence is not clearly mistaken.
In addition to murder, Mark was indicted on charges of first-degree sexual abuse of a minor and tampering with physical evidence. As part of the plea agreement, Mark admitted to the facts underlying these additional charges. Mark admitted that he offered to give ten-year-old Ida Aguchak a ride home on his four-wheeler but instead drove her to a remote location. Mark stated that Aguchak tried to run away from him twice, but he caught her both times. After the second time, Mark strangled Aguchak until she stopped moving or crying. Believing she was dead, Mark engaged in penile-vaginal penetration. Mark then drove Aguchak to a dump site and put her in a dumpster. When he heard Aguchak crying from inside the dumpster, Mark retrieved a knife from his four-wheeler and stabbed Aguchak in the head with the knife at least twice. Mark then threw Aguchak's cell phone toward a lagoon and went home and watched a movie with his father.
AS 11.41.434(a)(1) and AS 11.56.610(a)(1), respectively.
We use the name of the victim rather than initials at the request of the victim's living representatives and the State.
At the sentencing hearing, the State presented testimony from multiple witnesses, which the superior court relied upon during sentencing remarks. A forensic nurse testified that Aguchak sustained extensive blunt force vaginal injuries, resulting in a large amount of hemorrhaging and pooled blood. A medical examiner testified that Aguchak had multiple "sharp-force slash chop" injuries to her scalp that "went all the way through [the] skin of her scalp" with enough force to "mark the . . . outer table of bone" on her skull. One police officer testified that "upwards of a dozen different officers and investigators" were called in to search for Aguchak and investigate what occurred. Another officer testified that Mark interfered with the search by joining the search party and reporting that he had already searched the dump site area.
The State also noted that Mark was on conditions of release for second-degree harassment at the time of the murder. The underlying charge was based on surveillance video that showed Mark climbing naked on top of a woman at a sobering center and telling the woman he wanted to have sex with her. He also was sanctioned twice for contraband while in custody prior to sentencing.
When imposing the sentence, the superior court acknowledged that Mark was eighteen years old when he committed the murder and twenty at the time of sentencing. The court acknowledged that Mark was "a young person with prospects," with a "successful high school career, successful time at the military academy of Alaska," and with "a path to attend the University of Alaska to study science and aviation." But the court found that "it [was not] possible to imagine a more depraved, brutal, cold-hearted kidnapping, rape, and murder" and was "hard to imagine greater cruelty, greater deliberate cruelty," or "a more vulnerable victim." It noted that, when Mark stabbed Aguchak, he was "killing her a second time in his own mind" because he thought he already strangled her to death. And it noted Mark's efforts to divert the search party from finding Aguchak's body.
The court found that the nature of the offense rendered Mark a worst offender. It concluded, based on the deliberate cruelty of the crime and the apparent lack of remorse in the wake of committing the crime, that Mark had "very little" potential for rehabilitation, that "an extraordinary period of isolation" was required to protect the public, that the need to deter Mark and others "couldn't be higher," and that the impact on the community and on the victim "couldn't be worse."
The court declined to restrict Mark's eligibility for discretionary parole because the State did not request it and because of Mark's age and the length of his sentence. But the court did state that it believed the facts of the case would support a restriction of parole eligibility.
Based on the above, we conclude that the superior court appropriately found that Mark was a worst offender and adequately considered Mark's youthfulness. And given the brutal nature of Mark's conduct, the sentence he received is not clearly mistaken.
Mark correctly notes that the sentences for murder that we have affirmed in the past were imposed when defendants were eligible for discretionary parole after they served one-third of their sentence, unless the sentencing court further restricted parole eligibility. Former AS 33.16.090(b)(1) (pre-2019). In 2019, the legislature changed this to allow for discretionary parole eligibility only after two-thirds of a murder sentence. SLA 2019, ch. 4, § 107; AS 33.16.090(b)(1)(A). We have not considered how this change might affect the standards for imposing lengthy sentences for murder. But we need not do so in this case. Here, the superior court expressly considered whether to restrict Mark's discretionary parole eligibility further than the presumptive two-thirds of the sentence and, although it declined to do so, stated that it believed the facts of the case would authorize further restriction of discretionary parole, even "in consideration of [his] age[.]" Implicit in this statement is a finding that discretionary parole eligibility after two-thirds of Mark's sentence was warranted under the facts of the case, and we conclude this implicit finding is not clearly mistaken.
The judgment of the superior court is AFFIRMED.