Opinion
A-13140
03-16-2022
RONALD J. FISCHER, Appellant, v. STATE OF ALASKA, Appellee.
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Second Judicial District No. 2BA-14-00538 CR, Utqiagvik, Gregory A. Miller, Judge.
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
On December 8, 2014, Fischer entered the home of his ex-girlfriend, M.K., after seeing her with her new boyfriend, Brian Sullivan, earlier in the evening. Upon entering the home, Fischer saw Sullivan sitting on the couch in the living room. Fischer shot Sullivan twice in the face at point blank range, killing him instantly.
Fischer then found M.K. in a bedroom closet, where she hid after hearing gunshots. M.K. wrapped her arms around Fischer, so he could not raise his gun at her, and the two struggled down the hallway toward the front door. As they passed the living room, Fischer, referring to Sullivan, told M.K., "Look what you made me do." Ultimately, M.K. was able to escape; she ran to Sullivan's car, which had been left idling outside her home, and she drove to the police station.
For this conduct, Fischer was charged with first-degree murder, second-degree murder (under a theory of extreme indifference to the value of human life), and third-degree assault (for recklessly placing M.K. in fear of serious physical injury by means of a dangerous instrument). Fischer was also charged with two counts of fourth-degree assault and one count of resisting arrest-based on a prior altercation with M.K. in September - and one count of violating conditions of release for an incident in November.
AS 11.41.100(a)(1)(A), AS 11.41.110(a)(2), and AS 11.41.220(a)(1)(A), respectively.
AS 11.41.230(a)(1), AS 11.41.230(a)(3), AS 11.56.700(a)(1), and AS 11.56.757(b)(2), respectively.
Prior to trial, Fischer gave notice of his intent to rely on the defense of heat of passion. If successful, this defense would reduce the crime of first-degree murder to manslaughter. The superior court declined to instruct the jury on this defense.
AS 11.41.115(a) & (e). By law, the heat of passion defense does not apply to second-degree murder charged under a theory of extreme indifference to the value of human life. AS 11.41.115(a); Luch v. State, 413 P.3d 1224, 1228-29 (Alaska App. 2018).
A jury ultimately found Fischer guilty as charged. At sentencing, the court merged the murder counts into a single conviction for first-degree murder and imposed a composite sentence of 105 years and 7 months to serve for all the counts.
Fischer now appeals.
Fischer first challenges the superior court's refusal to instruct the jury on the defense of heat of passion. A defendant is entitled to an instruction on heat of passion if the defendant presents "some evidence" that: (1) the homicide was committed while the defendant was in the heat of passion; (2) this passion was the result of a "serious provocation" by the victim; and (3) a reasonable person in the defendant's circumstances would not have cooled in the interval between the provocation and the homicide. "Serious provocation" is defined as "conduct which is sufficient to excite an intense passion in a reasonable person in the defendant's situation, other than a person who is intoxicated, under the circumstances as the defendant reasonably believed them to be."
Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003) (defining "some evidence" in this context as "evidence which, if viewed in the light most favorable to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor on each element of the defense") (quoting Lacey v. State, 54 P.3d 304, 308 (Alaska App. 2002)).
AS 11.41.115(a); see alsoLuch, 413 P.3d at 1229; Wilkerson v. State, 271 P.3d 471, 473 (Alaska App. 2012).
AS 11.41.115(f)(2).
Fischer and M.K. had been in an "on again, off again" romantic relationship for over seventeen years and had three children together. After the violent altercation with Fischer in September 2014, M.K. ended their relationship.
In support of the heat of passion instruction, Fischer's trial attorney argued that, at the time of the shooting in December 2014, Fischer was "grieving the loss of his 18-year partner and he was grieving the loss of his family." The attorney acknowledged that Fischer was aware of M.K, 's relationship with Sullivan prior to the day of the shooting. But the attorney suggested that the "realization ... hit him" for the first time upon seeing Sullivan in the home he had shared with M.K. and their children.
In denying Fischer's request for the instruction, the court found that there was "simply no evidence" that Sullivan had done "anything to even remotely rise to [the] level" of serious provocation. The court noted that, when Sullivan was found, he was seated alone in the living room, fully clothed, with his hands clasped in his lap and his feet crossed - and that there was no evidence that Sullivan had made "even [a] defensive movement, let alone [an] aggressive or provoking [one]."
The court also found that Fischer had not presented any evidence that the period of time during which Fischer was aware of M.K, 's new relationship was inadequate for a reasonable person to have cooled off. The court noted that Fischer had learned of M.K, 's relationship at least ten days prior to the shooting, when he had sent M.K. threatening text messages after seeing her car parked behind Sullivan's apartment building.
The messages from Fischer stated, among other things: "Try to hide your fucking car. Answer your phone."; "You better call your fucking cops before I see you!"; "Go outside if you're fucking at your fucking fuck's room!"; and "Enjoy your last fuck."
The court concluded that if a heat of passion instruction were appropriate in this case, then "every situation of jealousy... would arguably rise to the level of heat of passion, and that's not what the law says."
The court's reasoning is supported by Wilkerson v. State, in which we noted that "the defense of heat of passion is not intended to apply to all emotional killings. Rather, heat of passion applies only when the defendant is subjected to a serious provocation that would 'naturally induce a reasonable [person] in the passion of the moment to lose self-control and commit the act on impulse and without reflection.'" Wilkerson, 271 P.3d at 474 (quoting Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003)).
Having independently reviewed the record, we agree with the superior court that - even viewing the evidence in the light most favorable to Fischer - there was insufficient evidence to entitle him to a heat of passion instruction. We have previously upheld the denial of a heat of passion instruction in cases involving similar circumstances.
See, e.g., Martin v. State, 664 P.2d 612, 618 (Alaska App. 1983) (holding that the defendant, who shot and killed her boyfriend, was not entitled to a heat of passion instruction when she had learned thirty days prior to the homicide that he had started a new romantic relationship (and four months prior, that he was dissatisfied with their relationship), and where there was no evidence of provocation); see also Foster v. State, 1990 WL 10513251, at *3 (Alaska App. Mar. 28, 1990) (unpublished) (affirming trial court's refusal to give heat of passion instruction where the defendant shot and killed his ex-girlfriend's new romantic partner, noting that the defendant "had no reasonable expectations of fidelity" from his ex-girlfriend, and neither the ex-girlfriend nor her partner had engaged in provocative behavior beyond being "merely together").
Fischer also challenges two aspects of his sentence. Fischer argues that the court erred in finding that his conduct was among the most serious, and he argues that his sentence is excessive.
As an initial matter, it is unclear whether Fischer is challenging the court's finding of the "most serious" aggravator under AS 12.55. I55(c)(IO), or whether he is challenging the court's separate finding that he is a "worst offender." The superior court properly discussed them separately, but in his briefing, Fischer conflates the two findings, discussing them interchangeably.
To the extent Fischer is challenging the finding of the (c)(lO) aggravator - that his conduct was among the most serious included within the definition of the offense - we conclude that this issue is moot. The court found this aggravator with respect to both the first-degree murder and third-degree assault convictions. With respect to Fischer's first-degree murder conviction, an unclassified felony, aggravating factors apply only by analogy. And as to both convictions, the superior court found additional aggravating factors, including that Fischer had a prior criminal history of assaultive conduct (AS 12.55.155(c)(8)) and that he was on bail release for a misdemeanor assault charge at the time of the offenses in this case (AS 12.55.I55(c)(I2)). When a defendant is subject to presumptive sentencing on a given count-as Fischer was with respect to the third-degree assault conviction - any one aggravator authorizes the judge to impose a maximum sentence. For these reasons, the finding of the (c)(lO) aggravator did not impact the scope of the court's sentencing authority.
See Hinson v. State, 199 P.3d 1166, 1172 (Alaska App. 2008) (citing Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984)).
See AS 12.55.155(h); Cleveland v. State, 143 P.3d 977, 987 (Alaska App. 2006).
To the extent Fischer is challenging the superior court's finding that he is a worst offender, we conclude that the court's finding is well supported by the record. Under Alaska law, a sentencing judge must find that a defendant is a "worst offender" before imposing the maximum term of imprisonment. A worst offender finding may be based on the facts and circumstances surrounding the offense, the defendant's criminal history, or both.
Foley v. State, 9 P.3d 1038, 1041 (Alaska App. 2000); see also Howell v. State, 115 P.3d 587, 592-93 (Alaska App. 2005) (citing State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975)).
Howell, 115 P.3d at 593 (citing Wortham, 537 P.2d at 1120; Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990)).
Here, the court based its worst offender finding on both Fischer's criminal history and the circumstances surrounding the offenses. The court noted that, at the time of the shooting, Fischer was forty-seven years old, and he had twenty-one prior criminal convictions, including multiple assault convictions. The court found that Fischer's murder of Sullivan was premeditated and intentional, stating that Fischer had "been thinking about [it], if not for a week, then at least for longer than just a couple of minutes." The court also found that the fear imposed by Fischer's assault on M.K. was substantial and it appeared that "but for her own action of [wrapping her arms around] Mr. Fischer, she was a second or two away from her own death." We conclude that, based on these factual findings and circumstances, the court could reasonably find that Fischer was a worst offender.
Fischer also argues that his composite sentence of 105 years and 7 months to serve is excessive.
After finding Fischer to be a worst offender, the court imposed the maximum sentence of 99 years with respect to Fischer's conviction for first-degree murder. For Fischer's third-degree assault conviction, the court imposed the maximum sentence of 5 years, running consecutively. For the two counts of fourth-degree assault, the judge imposed 1 year on each to run concurrently to each other and consecutively to all other counts. For the resisting arrest conviction, the court imposed 1 year, with 6 months running consecutively and 6 months running concurrently. And for the violating conditions of release conviction, the court imposed 30 days, running consecutively.
When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The clearly mistaken test is founded on two concepts - that "reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence; [and] that society is willing to accept these sentencing discrepancies, so long as a judge's sentencing decision 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) (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
Here, the court evaluated the Chaney criteria, finding that Fischer's rehabilitation potential was "nil" or "a very distant reality," and instead prioritizing isolation and community condemnation. In particular, the court found that Fischer's violent reaction to his breakup with M.K. - an event that the court characterized as a "normal pressure of life" - together with his extensive criminal history, showed that Fischer presented "a clear risk to the public."
Having independently reviewed the record, we conclude that Fischer's sentence is not clearly mistaken.
The judgment of the superior court is AFFIRMED.