MEMORANDUM OPINION

MANNHEIMER, Judge.

In July 2001, Edward Alan Soeth (pronounced "seth") strangled his long-time domestic partner, Cynthia Maughs. Based on this conduct, a jury convicted Soeth of first-degree murder. Soeth received a sentence of 99 years' imprisonment. In this appeal, Soeth argues that his sentencing judge committed several procedural and legal errors, and that his 99-year sentence is excessive. For the reasons explained here, we reject Soeth's contentions and we affirm his sentence.

Underlying facts

On July 5, 2001, Soeth called in sick to his newly-acquired job at the Royal Fork restaurant in Anchorage. Soeth had an abscessed tooth that was causing him considerable discomfort, so he decided to drink rum and beer to dull the pain.

When Soeth's girlfriend, Cynthia Maughs, came home that afternoon, she was displeased to find that Soeth had not gone to work, and that he had stayed home drinking instead. (Soeth had a spotty employment history, and he was already in debt to Maughs for over $2000 for various household expenses.) After Soeth offered his explanation of his actions, Maughs went into her bedroom (they had separate bedrooms) to telephone her adult daughter.

Soeth went into Maughs's bedroom and asked if he could have some of her cigarettes. After Maughs gave him the cigarettes, Soeth continued standing in the doorway. Maughs said to him, "Are you done, now?" — apparently asking him to leave the room.

According to Soeth's later account of the incident, when Maughs said this to him, "[he] just felt [his] body fill with rage". He interpreted Maughs's statement as an insult. He later told police investigators, "She didn't [actually] say [that] I was a piece of shit. It's just the way she looked at you. It's like, 'asshole', you know? She made me feel about that fucking big. I can't take nobody telling me that I'm fucking worthless."

In response to this perceived insult, Soeth punched Maughs in the face. He then began strangling her with his hands. According to Soeth's later description of this episode to his friend, Michael Wheeler, Soeth strangled Maughs for a while, but she wasn't quite dead. Maughs tried to say something, but she could only produce a gutteral or gagging sound in her throat. Soeth could see that Maughs's tongue was hanging from the corner of her mouth, and that there was blood coming from her mouth.

At this point, Soeth decided to make sure that Maughs died. He grabbed a sweatshirt that was lying nearby, and he wrapped it around her neck. Then, holding one end of the sweatshirt on the floor with his foot, Soeth used his hands to pull up hard on the other end of the sweatshirt. He kept pulling on the sweatshirt until he was sure that Maughs was dead.

Soeth was indicted for first-degree murder ( i.e., intentional homicide). At his trial, Soeth conceded that he had strangled Maughs, but he argued that he had been so intoxicated and filled with rage at the time that he could not appreciate what he was doing. Soeth's attorney argued that Soeth's crime amounted only to criminally negligent homicide. The jury rejected this argument and convicted Soeth of first-degree murder.

Soeth's sentencing

First-degree murder is an unclassified felony. Because the State did not allege any of the aggravating factors listed in AS 12.55.125(a)(1) — (4), Soeth faced a sentence of between 20 and 99 years' imprisonment for this crime.

In the State's pre-sentencing memorandum, the State asserted that Soeth's crime was aggravated (1) because Soeth had a history of repeated assaultive conduct (two prior misdemeanor convictions for domestic assault), (2) because Soeth's offense was committed against his domestic partner, and because (3) Soeth had committed an offense as a juvenile — involuntary manslaughter — that would have been a felony if committed by an adult.

(When Soeth was 15 years old, he shot and killed his best friend. Apparently, the friend had been tormenting Soeth by holding him down and drawing on his face with a marker. When Soeth got up, he retrieved a loaded five-shot revolver from his parents' dresser. Soeth removed three of the cartridges from the cylinder, and then returned to his friend, pointed the gun at him, and started pulling the trigger. Although Soeth had left two live cartridges in the revolver, Soeth claimed that he only intended to scare his friend. But while Soeth was pulling the trigger, he made a mistake about how many times the cylinder had advanced. The gun went off, fatally wounding his friend in the head. Soeth was adjudicated a delinquent minor, and he spent several months in juvenile custody in California.)

When Soeth filed his own pre-sentencing memorandum, he conceded these three aggravating factors.

Although the sentencing range for first-degree murder is not altered by statutory aggravating or mitigating factors, nor is the judge's sentencing authority affected by the presence or absence of these factors, we have approved the practice of having judges consider the aggravating and mitigating factors listed in AS 12.55.155(c) — (d) when the judge is sentencing a defendant for murder. As we explained in Allen v. State, 56 P.3d 683 (Alaska App. 2002), the aggravating and mitigating factors are used only by analogy at murder sentencings — "as points of reference when the parties argue how a particular defendant's crime should be viewed in comparison to a typical murder". This is because, under Alaska law,

[t]he judge's sentencing authority [in murder cases] is not affected by the judge's findings on these proposed factors. Similarly, the judge's authority to consider these factors is not affected by whether the proposed factors are proved by clear and convincing evidence (as would be required under AS 12.55.155(f) if the factors were being used to increase or reduce a presumptive term).

Allen, 56 P.3d at 684-85.

Despite the presence of these aggravating factors, Soeth's attorney asked the court to impose a sentence in the middle of the range for first-degree murder: a sentence of 50 to 55 years' imprisonment. The defense attorney argued that Soeth showed remorse and considerable insight into the problems that prompted him to take another person's life.

Superior Court Judge Michael L. Wolverton did not share the defense attorney's view of the situation. Judge Wolverton noted that Soeth's history demonstrated his inability to follow through with employment, or to maintain healthy family relationships, or to successfully pursue drug and alcohol treatment. Based on this history, Judge Wolverton concluded that Soeth's prospects for rehabilitation were "guarded".

Judge Wolverton also concluded that Soeth's prior homicide (the shooting of his teenage friend) was "more than simply an accidental shooting". Judge Wolverton noted that, according to the record, Soeth "wanted to scare [his] friend, [but he] didn't empty all the bullets [from the cylinder of the handgun]. [He] left [two or] three in there, making some sort of conscious decision that there was going to be some risk involved". The judge assumed that Soeth had not intended to kill his friend, but he nevertheless found that the shooting incident "wasn't a pure accident. Something more was going on in [Soeth's] thought process. . . ."

Turning to Soeth's murder of Cynthia Maughs, Judge Wolverton agreed that this killing was not premeditated, in the sense that "[Soeth was not] stewing all day, [thinking,] "When Cindy gets home, I'm going to kill her". However, Judge Wolverton rejected the notion that Soeth had acted in "a blind rage". The judge noted that Soeth had interrupted his attack on Maughs to fashion a ligature out of the sweatshirt.

In the end, Judge Wolverton concluded that Soeth was a "worst offender" and that he should receive the maximum sentence — 99 years' imprisonment — for his crime:

The Court: I find that the "worst offender" . . . analysis requires imposition of a 99-year sentence. . . . I find that a consideration of all the sentencing criteria requires . . . imposition of a 99-year sentence.

Soeth argues that Judge Wolverton was clearly mistaken when he found Soeth to be a "worst offender" for sentencing purposes, and that therefore Judge Wolverton had no authority to impose a sentence of 99 years' imprisonment. (See State v. Wortham, 537 P.2d 1117 (Alaska 1975), in which our supreme court held that a defendant should not receive a maximum sentence unless the sentencing judge finds that the defendant is a "worst offender" — i.e., finds that the defendant is among the worst offenders convicted of that offense, either because of the defendant's conduct, or the defendant's background, or a combination of both.)

In Riley v. State, 720 P.2d 951, 952 (Alaska App. 1986), this court rejected a proposed 60-year benchmark sentence for first-degree murder — primarily because 99-year sentences for first-degree murder have consistently been upheld by the Alaska appellate courts. When a 99-year first-degree murder sentence is challenged on appeal, the onus is on the defendant to demonstrate some reason why the sentencing judge should have imposed a lesser sentence. As we stated in Johnson v. State, 77 P.3d 11 (Alaska App. 2003), "a defendant who challenges a 99-year sentence for first-degree murder must show some reason to believe that his offense is mitigated or that his background is atypically favorable."

Soeth's crime may not be the most serious first-degree murder described in our appellate decisions, but his conduct is not mitigated and his background is not favorable.

First, Soeth killed Cynthia Maughs for little or no reason. Even in cases of second-degree murder — i.e., cases in which the killing was unintended — "we have repeatedly upheld sentences in the upper end of the penalty range for defendants who committed gratuitous or otherwise inexplicable acts of extreme violence." Hamilton v. State, 59 P.3d 760, 772 (Alaska App. 2002).

In addition, Soeth had two prior convictions for misdemeanor assaults against domestic partners. He assaulted his estranged wife in 1991, and he assaulted Maughs in 1995.

Moreover, Soeth committed another homicide as a teenager. In that prior instance, Soeth overreacted to what Judge Wolverton characterized as "[the type of] slight that [is common] with teenage kids".

Based on this record, Judge Wolverton could reasonably conclude that Soeth presented a significant danger to others, and that his conduct and his background were aggravated compared to other first-degree murder defendants. Even if these factors are arguably insufficient to establish that Soeth was among the worst of first-degree murder offenders, these factors are sufficient to establish that Soeth's offense was aggravated, not mitigated. Thus, under our sentencing decisions, Judge Wolverton was not clearly mistaken when he sentenced Soeth to serve 99 years in prison.

Soeth argues that, even though a 99-year sentence may be typical for cases of premeditated first-degree murder, a 99-year sentence requires special justification in cases where the murder, although intentional, is not premeditated. Soeth relies on the following footnote from our opinion in Riley:

We recognize that [Alaska's] current first-degree murder statute does not require "deliberate and premeditated malice" and is therefore considerably broader than the first-degree murder statute that was in effect prior to the adoption of the Revised Alaska Criminal Code. Compare AS 11.41.100 with former AS 11.15.010. For this reason, it is likely that some of the second-degree murder cases we considered in Page [ v. State, 657 P.2d 850 (Alaska App. 1983), when we established] sentencing guidelines for second-degree murder actually reflected conduct that would qualify as first-degree murder under current law. . . . A good argument could thus be made that the maximum sentence of ninety-nine years is not appropriate as a routine matter where a conviction of first-degree murder under current law is based on conduct that would previously have qualified only as second-degree murder. In such cases, sentence appeals dealing with second-degree murder convictions under prior law may well provide an appropriate point of reference. In the present case, however, the deliberate and premeditated nature of the murder for which Riley was convicted would clearly have qualified as first-degree murder under former law.

Riley, 720 P.2d at 952 n. 1.

Our later sentencing decisions have interpreted this footnote as standing for the rule that, in first-degree murder cases, proof of the defendant's premeditation, standing alone, will justify the imposition of a 99-year sentence. However, as we noted above, Riley also rejected the contention that we should establish a lesser benchmark sentence of 60 years' imprisonment for non-premeditated first-degree murders. In other words, the presence of premeditation will itself justify a 99-year term, but even in the absence of premeditation, other factors may justify a 99-year term.

We acknowledge that defendants convicted of first-degree murder should not automatically receive a 99-year sentence; such a rule would be completely inconsistent with the sentencing scheme established by the legislature for this crime. See AS 12.55.125(a). Our decisions in Riley and in subsequent first-degree murder cases do not absolve sentencing judges from carefully analyzing the facts of each defendant's case in light of the " Chaney criteria" — i.e., the sentencing criteria now codified in AS 12.55.005. As we explained in Hamilton v. State,

Even though our decision in Riley v. State suggests that a defendant who commits first-degree murder is often, by virtue of the crime itself, properly categorized as a "worst offender," we did not rule that first-degree murderers can always receive 99-year sentences, nor does Riley free sentencing judges from their obligation to base sentences on a careful consideration of the Chaney sentencing criteria.

77 P.3d at 14 (footnotes omitted).

In the present case, Judge Wolverton did not find that Soeth acted with premeditation, although the evidence (in particular, Soeth's interruption of the assault to fashion a ligature from the sweatshirt) would seemingly support such a finding. But even if Soeth did not act with premeditation, the other aspects of Soeth's case (the ones we have enumerated above) provide adequate justification for Judge Wolverton's conclusion that Soeth should receive a 99-year sentence. Moreover, the judge's statements at the sentencing hearing show that he carefully analyzed Soeth's conduct and background in light of the Chaney criteria.

Soeth argues that Judge Wolverton mistakenly believed that his finding that Soeth was a "worst offender" required imposition of the maximum sentence, as opposed to simply allowing imposition of a maximum sentence. Soeth notes that Judge Wolverton stated, "I find that the 'worst offender' analysis requires imposition of a 99-year sentence." However, soon after that, Judge Wolverton rephrased his conclusion: "I find that a consideration of all the sentencing criteria requires . . . imposition of a 99-year sentence." Thus, in context, it appears that Judge Wolverton's initial statement — his assertion that "the 'worst offender' analysis requires imposition of a 99-year sentence" — was a reference to the specific "worst offender" analysis in Soeth's particular case. In other words, Judge Wolverton was saying that the same factors that led him to conclude that Soeth was a worst offender also led him to conclude that Soeth should receive a sentence of 99 years.

Soeth also argues that Judge Wolverton erred in finding that Soeth's prospects for rehabilitation were guarded, and that the judge erred by putting too much emphasis on Soeth's prior homicide. But Soeth's arguments rest on a view of the facts most favorable to himself. Judge Wolverton was not obliged to view the facts in that same light.

Conclusion

For the reasons explained here, we conclude that Judge Wolverton was not clearly mistaken when he sentenced Soeth to 99 years' imprisonment. Accordingly, the sentencing decision of the superior court is AFFIRMED.