Opinion
Court of Appeals No. A-10043.
May 14, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-06-2732 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Jeffrey A. O'Bryant, Assistant District Attorney, and J. Michael Gray, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
David E. Cox was convicted of murder in the first degree. Murder in the first degree is an unclassified felony with a maximum term of imprisonment of 99 years and a minimum term of imprisonment of 20 years. Superior Court Judge Mark I. Wood sentenced Cox to a term of 99 years of imprisonment with 24 years suspended. Cox appeals, arguing the sentence is excessive. We affirm.
AS 11.41.100(a)(1)(A).
AS 11.41.100(b); AS 12.55.125(a).
The murder arose out of a drug transaction. Cox agreed to meet Gary Titus at the Carlson Center in Fairbanks to sell him marijuana. Apparently Titus did not have any money to pay for marijuana. At some point during the transaction, Cox produced a .22 caliber handgun and shot Titus in the head. When Titus went down on one knee, Cox fired two additional shots into Titus's head. Judge Wood found that this was a cold-blooded, intentional killing.
In sentencing Cox, Judge Wood considered Cox's prospects for rehabilitation. He pointed out that Cox was eighteen at the time that the crime occurred, a relatively young offender. Judge Wood concluded that Cox had some rehabilitation potential because of his youth. But he noted that prior to going to jail Cox had adopted a gangster persona, carried a weapon, and engaged in illegal activities. Judge Wood pointed out that since Cox had been in jail, Cox had violated correctional center rules on numerous occasions. Judge Wood concluded that in spite of Cox's youth, Cox's potential for rehabilitation was guarded.
Judge Wood also considered the fact that Cox had ultimately taken responsibility by admitting his offense and by cooperating with the police investigation by helping them find the murder weapon. Judge Wood concluded that the seriousness of Cox's offense required him to impose a sentence of 99 years. But based on Cox's cooperation, his youth, and prospects for rehabilitation, Judge Wood suspended 24 years of imprisonment. Judge Wood also declined to restrict Cox's eligibility for discretionary parole. Judge Wood reasoned that by the time Cox would be eligible for discretionary parole, the parole board would be in the best position to determine if Cox was ready to be released.
In his brief, Cox recognizes that this court has consistently upheld maximum sentences, even for youthful offenders, who are convicted of murder in the first degree. But he points out that we have also required sentencing judges to base their sentences on a careful consideration of the Chaney sentencing criteria. We conclude that Judge Wood followed this mandate. He carefully considered the nature of Cox's offense, his youth, his prospects for rehabilitation, and his cooperation with the authorities. We conclude the sentence Judge Wood imposed is supported by the record. The sentence is not clearly mistaken.
See, e.g., Perotti v. State, 843 P.2d 649 (Alaska App. 1992); Hightower v. State, 842 P.2d 159 (Alaska App. 1992); Ridgely v. State, 739 P.2d 1299 (Alaska App. 1987).
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); Riley v. State, 720 P.2d 951, 952-53 (Alaska App. 1986).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.