Opinion
Court of Appeals No. A-10288.
May 13, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge, Trial Court No. 4FA-05-3603 CR.
Daniel S. Bair, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for Appellant.
Scott L. Mattern, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jason S. Fisher received a composite sentence of 82 years based on his plea of no contest to the crimes of murder in the second degree and misconduct involving weapons in the third degree. Fisher now appeals, contending that this sentence is clearly mistaken. Background
Fisher had been taking methamphetamines for several days with two of his friends, Josiah Thurneau and Avi Keys. On May 13, 2004, the three men picked up an acquaintance named David Mason in downtown Fairbanks. They drove about forty miles on the Steese Highway onto a road marked with a "no trespassing" sign. Keys and Fisher then took a short walk while Thurneau and Mason worked on the car stereo.
When Keys and Fisher returned, Keys handed Mason a cigarette, which Mason put in his mouth. But before Mason could light the cigarette, Fisher walked behind Mason and shot him in the head. Fisher then retrieved knives and an axe out of the trunk of the car, telling Thurneau that he wanted Mason's body chopped into pieces so that it would sink when disposed of in the Tanana River. Fisher cut a distinctive tattoo out of Mason's skin, chopped off his head, arms, and legs, and chopped his torso in half. The group then put the body parts in the trunk of the car.
During the early morning hours of May 15, 2004, Alaska state troopers attempted to stop Keys and Fisher in the same vehicle in Fairbanks. Keys and Fisher abandoned the vehicle after a high-speed chase. The troopers arrested Keys for driving under the influence and impounded the car, but Fisher was not apprehended at that time.
Toward the end of June 2004, the troopers noticed a strong odor coming from the trunk of the impounded vehicle. When they searched the trunk, they found Mason's body parts, including a badly decomposed human head, and cutting implements, including a battle axe, a detached spear tip, a machete, a hand axe, various knives, a jar containing a section of tattooed skin, and an ear with an earring. An autopsy suggested that the cause of death was multiple gunshot wounds to the head.
Fisher later told a friend that he had walked up behind Mason and shot him twice in the head with a pistol. He said that Mason made a face as he was dying and that Fisher had asked Mason, "Are you dead, you dead?" Fisher also boasted that he liked Mason's tattoos so much that he skinned them and put them in jars.
Fisher had numerous problems with the law both before and after this incident. He was adjudicated as a delinquent in August of 2002 on four counts of vehicle theft in the first degree for stealing numerous vehicles. He was released from probation in July of 2003, about nine-and-a-half months before Mason's murder.
At the time of the murder, Fisher was on release for felony charges of third-degree misconduct involving weapons from an April 3, 2004, incident when troopers found him possessing two sawed-off shotguns, an automatic assault rifle, and a vial containing methamphetamine. Fisher was convicted of misconduct involving weapons in the third degree on December 29, 2004.
Four months after Mason's murder, on August 20, 2004, the troopers stopped Fisher's vehicle and found that he had a Smith and Wesson .38 Special and a paper coffee filter containing methamphetamine. He was convicted of misconduct involving a controlled substance in the fourth degree for this incident on December 7, 2004.
Before he was arrested on the murder charge, Fisher had been placed at the Fairbanks North Star Center. He failed to return to the center on June 9, 2005, after signing out to seek employment. When he was apprehended in October 2005, officers found him in possession of methamphetamine, two knives, and a loaded .45 caliber handgun. He was eventually convicted of unlawful evasion for this incident on February 5, 2007.
The defendant also received numerous prison disciplinary reports while the murder charges were pending. One incident involved a violent assault against another inmate, and another involved the possession of a pencil that had been altered into a weapon.
Similarly, Fisher had a long history of substance abuse (including methamphetamine abuse) beginning when he was a teenager. He tested positive six times for illegal drug use while on juvenile probation, and was referred to outpatient treatment, which he did not complete.
In this case, Fisher was originally charged with murder in the first degree, tampering with physical evidence, misconduct involving weapons in the third degree, fourth degree misconduct involving a controlled substance, and misconduct involving a corpse. He entered pleas of no contest to the charges of murder in the second degree and misconduct involving a weapon in the third degree, and the remaining charges were dismissed.
At the sentencing hearing, Superior Court Judge Randy M. Olsen discussed several important factors. He found that Fisher was relatively young (twenty-three years old) and had no history of violent crimes. He stated that Fisher had been addicted to methamphetamine, and that this contributed to his criminal behavior. He also stated that Fisher had difficulties with attention deficit hyperactivity disorder, which could require future treatment. Judge Olsen also concluded that Fisher's destructive personality had improved after a period of sobriety while he was incarcerated.
But Judge Olson also concluded that Fisher had engaged in almost nonstop criminal activity for several years. The judge found that Fisher committed this murder while he was on release for other felony charges. In addition, the judge noted that Fisher had committed institutional violations while incarcerated. The judge concluded that this pattern of violations reflected a poor potential for rehabilitation because Fisher had disregarded societal rules since his early teenage years.
Judge Olsen found that Fisher had committed a premeditated killing that would have justified a conviction for first-degree murder. On this basis, the judge concluded that Fisher was a worst offender. The judge also stated that the dismemberment of the corpse and the retention of the Mason's tattoos, ear, and head showed a remarkable level of callousness.
Based on these conclusions, Judge Olsen imposed an 80-year sentence for murder in the second degree and approved the parties' agreement for a 2-year sentence for the crime of misconduct involving weapons in the third degree.
Discussion
We review Fisher's sentence to determine if Judge Olsen's decision was clearly mistaken. The parties have directed us to two special sentencing considerations that could apply to this case. First, there is a benchmark of 20 to 30 years for the actual imprisonment that a sentencing judge should impose on a typical first-felony offender convicted of a typical second-degree murder. But the sentencing judge may depart from this benchmark for "any sound reason." We conclude that Judge Olson stated several sound reasons supporting his conclusion that this was not a typical second-degree murder and that Fisher was not a typical first-felony offender.
See McClain v. State, 519 P.2d 811, 814 (Alaska 1974).
Phillips v. State, 70 P.3d 1128, 1143 (Alaska App. 2003); Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
Brown v. State, 973 P.2d 1158, 1162 (Alaska App. 1999) (quoting Williams v. State, 809 P.2d 931, 934 (Alaska App. 1991)).
Second, we review Judge Olson's characterization of Fisher as a worst offender. When a defendant pleads guilty to a lesser offense, but the sentencing judge determines that he has committed a greater offense, the judge may conclude that the defendant is a worst offender for purposes of sentencing. The premeditated nature of Fisher's crime justified Judge Olsen's conclusion that Fisher was a worst offender. But this worst offender finding was not even essential to Fisher's sentence because Judge Olsen did not impose the maximum 99-year sentence for second-degree murder.
Fee v. State, 656 P.2d 1202, 1204 (Alaska App. 1982).
See Smith v. State, 187 P.3d 511, 527 (Alaska App. 2008); Copeland v. State, 70 P.3d 1118, 1128 (Alaska App. 2003).
In any event, a person who is convicted of second-degree murder when the circumstances approximate first-degree murder may receive an aggravated sentence. Fisher argues that sentences in the 80-year range should be approved only in cases involving gratuitous and unexplainable acts of extreme violence. He relies on our opinions in Ross v. State, where the defendant received an 80-year sentence for two murders involving repeated stabbings, and Simpson v. State, where the defendant received an 85-year sentence for a sustained beating that left his wife suffering in the hospital for two weeks before she died. Fisher argues that sentences in the range of 60 to 70 years have been approved for less serious convictions of murder in the second degree that also included intentional misconduct.
State v. Krieger, 731 P.2d 592, 596 (Alaska App. 1987).
808 P.2d 240 (Alaska App. 1991).
Id. at 291-292.
877 P.2d 1319 (Alaska App. 1994).
Id. at 1320.
See, e.g., Allen v. State, 51 P.3d 949, 961 (Alaska App. 2002).
However, Fisher overlooks the gratuitous and unexplainable circumstances in this case that justify his substantial sentence. This case involves a premeditated execution-style murder. We have previously approved a 99-year sentence for a seventeen-year-old who was convicted of second-degree murder for participation in a similar execution-style crime. Judge Olsen also properly concluded that Fisher's crime was especially serious because Fisher had dismembered the body and retained certain parts as trophies.
See Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App. 1987).
We conclude that Judge Olsen was not clearly mistaken when he imposed a composite 82-year sentence for murder in the second degree and misconduct involving weapons in the third degree.
We therefore AFFIRM the superior court's judgment.