Opinion
Court of Appeals No. A-8577.
September 29, 2004.
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge. Trial Court No. 2BA-02-436 CR.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Jason Gazewood, Assistant District Attorney, Fairbanks, Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Arnold Ahgook of numerous counts of assault and one count of criminal mischief. Ahgook appeals his sentence, arguing that his sentence is excessive. Because we conclude that the superior court improperly found and applied a statutory aggravating factor, we must vacate Ahgook's sentence and remand for resentencing.
Facts and proceedings
On July 21, 2002, Ahgook shot an unoccupied police patrol vehicle in Anaktuvuk Pass. Ahgook used his hunting rifle which was equipped with a telescopic sight. Officers Larry Paul and Robert Campbell were eating dinner when they were told by Howard Shipley, who lived nearby, that the patrol vehicle had been damaged. When the three went outside to inspect the vehicle, Ahgook opened fire again. A bullet struck the patrol vehicle and shrapnel struck Officer Paul's hand and arm causing small lacerations. Ahgook then drove up to the patrol vehicle but would not drop his rifle when commanded by the police.
Ahgook's parents arrived at the scene of the confrontation. Ahgook eventually handed his rifle to his parents and fled out of town. Later, Ahgook returned, and the police arrested him.
The grand jury indicted Ahgook for attempted first-degree murder, second-degree assault, three counts of third-degree assault, and second-degree criminal mischief. He was convicted of three counts of third-degree assault, one count of fourth-degree assault, and one count of third-degree criminal mischief.
AS 11.41.220(a)(1)(A), AS 11.41.230(a)(2), and AS 11.46.482(a)(1), respectively.
These were Ahgook's first adult felony convictions. At sentencing, Superior Court Judge Michael I. Jeffery found that several statutory aggravating factors from AS 12.55.155(c) applied to Ahgook's convictions. Judge Jeffery also found that Ahgook was a worst offender because he intended to kill or badly hurt Officer Paul with the shot that struck the vehicle. Judge Jeffery merged Ahgook's convictions for third- and fourth-degree assault on Officer Paul and imposed a composite 12-year sentence with 7 years suspended.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 19 75).
Why we must vacate Ahgook's sentence
As mentioned above, Judge Jeffery found that statutory aggravating factors applied. He found that aggravator (c)(10) (Ahgook's conduct was among the most serious within the definition of the offense) applied to all three third-degree assaults and that aggravator (c)(13) (Ahgook knowingly directed the conduct constituting the offense at a police officer) applied to the third-degree assaults directed against the officers. Judge Jeffrey found that aggravator (c)(1) (Officer Paul sustained physical injury as a direct result of Ahgook's conduct) applied to the third-degree assault on Officer Paul. Judge Jeffrey also found that aggravator (c)(4) (Ahgook used a dangerous instrument in furtherance of the offense) applied to the third-degree criminal mischief charge.
Of most concern to us is that Judge Jeffery found that aggravator (c)(6) (Ahgook's conduct created a risk of injury to three or more persons) applied to all three of the third-degree assaults.
When Judge Jeffery imposed sentence, he noted the serious nature of the assault offenses because the two officers and Shipley were within the area of risk caused by Ahgook's conduct of firing his rifle and trying to kill Officer Paul. Judge Jeffery gave "some weight" to aggravator (c)(6) when imposing sentence for each of the third-degree assault charges.
Alaska Statute 12.55.155(e) provides that if "a factor in aggravation is a necessary element of the present offense . . ., that factor may not be used to aggravate the presumptive term." Judge Jeffery's finding that Ahgook's conduct created a risk of injury to three or more persons necessarily was based in significant part on conduct for which Ahgook was separately convicted in each of the third-degree assault counts. Ahgook placed both officers and Shipley in fear of imminent serious physical injury by firing at Officer Paul but missing him. Because Ahgook was convicted for placing each victim in fear of imminent serious physical injury, he cannot have his sentence aggravated based on this same conduct which put the three at risk of imminent physical injury.
See Juneby v. State, 641 P.2d 823, 842-43 (Alaska App. 1982), on reh'g, 665 P.2d 30 (Alaska App. 1983).
Because Judge Jeffery's finding on aggravator (c)(6) was impermissible, we must remand the case for Judge Jeffery to reconsider Ahgook's sentence without relying on that aggravating factor.
Ahgook also challenges three probation conditions imposed at sentencing relating to alcohol. Special condition one provides that Ahgook cannot consume alcohol. Special condition two requires Ahgook to submit to testing to determine whether he is sober. And special condition three requires Ahgook to submit to searches for alcohol or illegal drugs.
When granting probation, a sentencing court has broad authority to fashion conditions of probation that are reasonably related to the probationer's rehabilitation or the protection of the public. Ahgook points out that the indication that he might have any substance abuse problem was based on a years-old report that he liked to drink and smoke marijuana. The record does not indicate that alcohol or substance abuse was involved in the present offense, nor even that Ahgook has a continuing problem with alcohol or substance abuse. We agree with Ahgook that the present record does not support the challenged probation conditions. Even so, since we are remanding the case for reconsideration of Ahgook's sentence, Judge Jeffery can consider what probation conditions to impose if he imposes probation when he resentences Ahgook.
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977); Baum v. State, 24 P.3d 577, 581-82 (Alaska App. 2001).
Conclusion
Ahgook's sentence is VACATED, and the case is remanded for resentencing. We do not retain jurisdiction.