Opinion
Court of Appeals No. A-10352.
August 5, 2009.
Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge, Trial Court No. 2NO-07-00794 CR.
Brooke Browning, Lewis Thomas, P.C., Nome, for the Appellant. John A. Earthman, District Attorney, Nome, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Eli Dickson was convicted of manslaughter, a class A felony, with a maximum term of 20 years of imprisonment. Dickson was a first felony offender and was therefore subject to a presumptive range of 7 to 11 years of imprisonment. Superior Court Judge Ben J. Esch sentenced Dickson to 16 years with 5 years suspended. Dickson appeals this sentence. We affirm.
AS 11.41.120(a)(1), (b).
AS 12.55.125(c).
AS 12.55.125(c)(2)(A) (providing for an increased presumptive range for class A felonies resulting in serious physical injury or death).
Factual and procedural background
Rudy Pushruk and Maggie Komok of Teller had been involved in an off-and-on relationship and had a child together. For a three-month period during the summer of 2007, when she broke up with Pushruk, Komok dated Eli Dickson. Komok then resumed her relationship with Pushruk, and they lived together at her grandmother's house.
On October 12, 2007, Pushruk and Komok went out to celebrate her birthday and ended up drinking with friends and family at the house of a neighbor, Jerry Okboak. Dickson showed up later at the same place and was intoxicated. Pushruk and Komok did not interact with Dickson, who was eventually kicked out because he was too drunk.
Pushruk later passed out on the floor of the Okboak residence. Komok left to run an errand in town, returning to her grandmother's house in the early morning. When Pushruk later returned to the Komok residence, he found Dickson asleep on his and Komok's bedroom floor. Komok was asleep on the bed. Pushruk kicked Dickson several times about the head and face and then left.
Dickson was still on the bedroom floor when Komok woke up. With the help of her uncle, Komok forced Dickson to leave. Dickson tried to force his way back inside, but Komok and her uncle prevented him from entering.
According to the testimony of Jason Tendler, Komok's uncle, he saw Pushruk on Okboak's steps sometime after he and Komok had removed Dickson from the house. According to Tendler, Dickson went over to Pushruk and pulled him from the steps. When Dickson had Pushruk on the ground, he started kicking him in the "head, body, and groin area." Tendler estimated that Dickson kicked Pushruk for "about five to ten minutes." He testified that Dickson kicked Pushruk hard — he could hear the thud of the kicks from inside the house. He testified that Okboak eventually intervened and stopped the attack. But a few minutes later, Tendler saw Dickson kicking Pushruk again. He estimated that Dickson kicked Pushruk in the head at least five more times. Pushruk died from his injuries.
A grand jury indicted Dickson on alternative counts of murder in the second degree and one count of manslaughter. Dickson entered into a plea agreement with the State in which he pled guilty to manslaughter and admitted an aggravating factor, that his conduct "was among the most serious conduct included in the definition of the offense." In return, the State agreed to dismiss the second-degree murder charges.
AS 11.41.110(a)(1) (2).
AS 11.41.120(a)(1).
AS 12.55.155(c)(10).
A first felony offender convicted of manslaughter is subject to a presumptive range of imprisonment from 7 to 11 years. The presence of the aggravating factor, that Dickson's offense was among the most serious conduct constituting manslaughter, authorized the court to impose up to the 20-year maximum sentence. But Judge Esch also found that Dickson had proven a mitigating factor, that he had "acted with serious provocation from the victim." This finding gave the trial court discretion to impose a sentence of as little as half of the low end of the presumptive range, i.e., 3 years and 6 months.
AS 12.55.125(c)(2)(A).
AS 12.55.155(a)(2).
AS 12.55.155(d)(6).
In sentencing Dickson, Judge Esch recognized that, at the time of the offense, Dickson was only twenty years old. But he noted that Dickson had a prior misdemeanor conviction and that his prior history showed that he had a serious problem with alcohol which led to most of his "previous incidents with the law." Although he found that Dickson had been seriously provoked by Pushruk's prior assault, Judge Esch emphasized that Dickson's assault on Pushruk was nevertheless an extreme overreaction. In particular, Judge Esch noted that, after severely assaulting Pushruk and being pushed away, Dickson returned to continue the assault.
On appeal, Dickson argues that Judge Esch did not give sufficient weight to the mitigating factor and imposed an excessive sentence. But Dickson conceded in his plea agreement that his conduct was among the most serious conduct constituting manslaughter, and the record supports that conclusion. Dickson's initial assault on Pushruk was severe. Tendler's grand jury testimony was that Dickson kicked Pushruk for five to ten minutes while he lay helpless on the ground. Tendler testified that he could hear the sound of the kicks from inside his house. And even after he was separated from Pushruk, Dickson returned to assault Pushruk again by kicking him in the head at least five more times.
We will not reverse a sentencing judge's decision to adjust a sentence based on aggravating and mitigating factors unless we find it is clearly mistaken. Judge Esch could properly conclude that the facts of this case required him to sentence Dickson to a term of actual imprisonment of 11 years, the top of the presumptive range. We conclude that the sentence which Judge Esch imposed was not clearly mistaken.
See Clark v. State, 8 P.3d 1149, 1151 (Alaska App. 2000) (citing Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App. 1991)).
See Fagan v. State, 779 P.2d 1258, 1260 n. 4 (Alaska App. 1989) ("When we review sentences, we normally focus primarily on time to serve in determining if a sentence is excessive.").
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.