Opinion
Court of Appeals No. A-10498.
November 24, 2010.
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge, Trial Court No. 3KO-08-296 CR.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. Stephen B. Wallace, District Attorney, Kodiak, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Shane Flemens was working on a fishing vessel when he attacked the three other crew members with a knife without any provocation. One of the crew members, Daniel Courchaine, received multiple stab wounds that could easily have caused his death. At the time of the attack, Flemens suffered from a mental illness which was exacerbated by his failure to take his medication and by lack of sleep.
Flemens entered into a plea bargain with the State. He entered pleas to assault in the first degree, assault in the second degree, and assault in the third degree. Superior Court Judge Steve W. Cole sentenced Flemens to a composite term of nineteen years with nine years suspended.
AS 11.41.200(a)(1).
AS 11.41.210(a)(1).
AS 11.41.220(a)(1)(A).
Flemens appeals his sentence. He argues that Judge Cole applied the incorrect presumptive term to his conviction for assault in the first degree, and that the judge gave insufficient weight to the mitigating factor that Flemens had committed his offense under some degree of duress due to his mental illness. We affirm.
AS 12.55.155(d)(3).
Factual and procedural background
On June 11, 2008, Flemens was working as a crew member on a fishing boat, the F/V Kilokak. The skipper of the boat was Vito Kalcic, who was on the flying bridge of the vessel. He was directing Flemens, who was in a skiff. They were getting in position to make a set. The other crew members, Daniel Courchaine and Robert Lindsey, were in the galley of the fishing vessel, making coffee. Kalcic saw Flemens suddenly exit the skiff. Flemens ran into the galley with a knife with a four-inch blade. Flemens tried to stab Lindsey in the neck, but Lindsey ducked and Flemens sliced his ear with the knife. According to Lindsey, Flemens grabbed Courchaine, threw him to the deck, and began stabbing him in the chest with the knife. Kalcic heard screaming coming from the galley, left the bridge, and ran down to the galley. When he arrived, he saw Flemens straddling Courchaine on the deck. It appeared to him that Flemens was beating Courchaine.
Kalcic tapped Flemens on the back. Flemens got up and whisked the knife in front of Kalcic's face. Kalcic grabbed Flemens and threw him up on the deck. Flemens stated, "I got everybody. I'm going to kill you all." Kalcic managed to calm Flemens down and talked him into throwing the knife overboard.
When the Coast Guard arrived, Flemens offered assistance and helped Courchaine into the rescue helicopter. A short time later, a vessel carrying Alaska State Troopers arrived and took Flemens into custody. Trooper Zito interviewed Flemens in Kodiak. Flemens stated that he was supposed to be taking medication for schizophrenia, but that he had not taken any medication because he had left it behind in Wenatchee, Washington. He said that he had not slept for a couple of days before the incident and he thought he had overheard Courchaine and Lindsey talking about trying to kill him. He stated that he had little memory about the incident, but thought he had acted in self-defense.
The State initially charged Flemens with two counts of attempted murder in the first degree, along with assault in the first degree, assault in the second degree, and assault in the third degree. But as part of a plea bargain, the State agreed to dismiss the attempted murder charges in return for Flemens's plea to the assault charges. The parties agreed that, on the charge of assault in the first degree, the appropriate presumptive sentencing range under AS 12.55.125(c)(2)(A) was seven to eleven years, because Flemens used a knife when committing the offense.
Flemens admitted one aggravating factor: that he had a prior criminal history which included repeated instances of assaultive behavior. In addition, Judge Cole found another aggravating factor: that Flemens had a prior criminal history of five or more class A misdemeanors. Judge Cole indicated that he would give this second aggravating factor some weight in imposing the amount of suspended time. But he concluded that the aggravating factor was not entitled to great weight because it tended to overlap with the aggravator that Flemens had a prior criminal history of assaultive behavior.
AS 12.55.155(c)(8).
AS 12.55.155(c)(31).
Judge Cole also found one mitigating factor: that Flemens committed the offense under some degree of duress or coercion which significantly affected Flemens's conduct. In finding this mitigator, Judge Cole considered the fact that Flemens's perception of the event was affected by his mental illness. But the judge concluded that he should give little weight to this mitigating factor. He concluded that Flemens had been extremely reckless in his behavior — Flemens knew he had a serious mental illness and that this mental illness led to hallucinations, and yet Flemens engaged in commercial fishing without his medication. Judge Cole also found that, because Flemens had been a crew member on a fishing boat previously, Flemens knew that the work involved long days and extensive sleep deprivation. Yet, without informing the skipper or his fellow crew members that he did not have his medication, and knowing that the hallucinations might come back, Flemens proceeded to go fishing.
AS 12.55.155(d)(3).
In sentencing Flemens, Judge Cole emphasized that Flemens had a prior criminal history that included repeated instances of assaultive behavior. He also emphasized that Flemens had initiated an entirely unprovoked attack on completely innocent people who just happened to be in the wrong place at the wrong time. He concluded that Flemens's present crimes could not be viewed as an isolated event in light of his prior criminal history.
Judge Cole concluded that Flemens had some prospects for rehabilitation if he could take the steps to deal with his mental illness. But if Flemens was unable to manage his mental illness, he would leave prison "a walking time bomb just like what he was when he stepped on the deck of the boat." Judge Cole pointed out it was simply a matter of good luck that Courchaine had not died from his injuries. He imposed the composite sentence of nineteen years with nine years suspended. He placed Flemens on probation for ten years.
The presumptive range for Flemens's conviction for assault in the first degree was a term of seven to eleven years
Flemens was convicted of assault in the first degree, a class A felony, for recklessly causing serious physical injury to Courchaine with a dangerous instrument, a knife. As a first felony offender convicted of a class A felony, Flemens was subject to a presumptive range of imprisonment under AS 12.55.125(c). The pertinent portion of that statute, subsection (c)(2)(A), provides that if the defendant "possessed a firearm, used a dangerous instrument, or caused serious physical injury or death during the commission of the offense," the defendant faces a presumptive sentencing range of seven to eleven years.
In the superior court, Flemens agreed that this was the applicable presumptive range. But on appeal, Flemens argues that it was improper to apply the seven-to eleven-year range to him. Flemens notes that he was convicted of first-degree assault under AS 11.41.200(a)(1), which required the State to prove that he used a dangerous instrument in the assault. He argues that, because his use of a dangerous instrument was an element of the underlying offense, he was improperly "penalized twice for [his use of] the dangerous instrument" when the superior court applied the higher presumptive sentencing range specified in AS 12.55.125(c)(2)(A). Because the higher sentencing range was triggered by his use of a dangerous instrument, Flemens argues that his sentence violates the double jeopardy clause.
It is the province of the legislature to establish the appropriate range of punishment for an offense. We have held that the higher sentencing range set out in AS 12.55.125(c)(2) applies to offenders even if the factor that triggers the higher sentencing range is also an element of the underlying offense.
Alexie v. State, 229 P.3d 217, 220 (Alaska App. 2010).
For instance, in Burks v. State, the defendant was convicted of robbery in the first degree based upon his use of a firearm when committing the crime. On appeal, the defendant argued that sentencing him to the higher presumptive term under AS 12.55.125(c)(2) violated the double jeopardy clause of the Alaska Constitution "as well as the legislative intent underlying the statutory sentencing provisions." We rejected this contention:
706 P.2d 1190 (Alaska App. 1985).
Id. at 1192.
Id.
[T]he enhanced presumptive terms operate independently of the elements of the underlying offenses. It seems clear that the legislature intended that anyone convicted of a class A felony, who uses or possesses a firearm in connection with that felony, should receive the enhanced presumptive term, whether or not use of a dangerous instrument is an element of the class A felony under consideration.
Id. at 1192-93.
More recently, in Alexie v. State, we held that "first felony offenders . . . who are convicted of first-degree assault under AS 11.41.200(a)(1) (reckless infliction of serious physical injury by means of a dangerous instrument) are subject to the 7- to 11-year presumptive sentencing range specified in AS 12.55.125(c)(2)." We adhere to these decisions and accordingly reject Flemens's argument that he was subjected to illegal double punishment.
229 P.3d 217 (Alaska App. 2010).
Id. at 221.
The mitigating factor that Flemens committed the offenses under some degree of duress
Judge Cole found mitigating factor (d)(3) — that Flemens committed the offenses under some degree of duress because of his mental illness. But Judge Cole gave this mitigating factor little weight. Judge Cole found that Flemens had been extremely reckless in working on a fishing boat without his medication in spite of the fact that he knew he had a serious mental illness.
Flemens argues that Judge Cole clearly erred in finding that Flemens had reason to believe he might become violent if he did not take his medication. In particular, Flemens points to an observation made by the author of the presentence report that Flemens's prior violent offenses appeared to have been alcohol related. Flemens argues that if, as the presentence report suggests, all of his prior assaultive behavior could be attributed to alcohol consumption, then the record does not show that he should have been aware that he might become violent if he failed to take his medication.
Although the presentence investigator observed that Flemens's prior criminal record of assaultive behavior appeared to be alcohol related, it is not clear that the presentence investigator was stating that Flemens's mental illness played no role in those prior incidents. Moreover, Judge Cole's sentencing analysis did not require him to make a finding on that issue.
Judge Cole's analysis turned on Flemens's awareness that he had a serious mental illness that engendered hallucinations. Flemens nevertheless put himself in a situation of high stress — working as a crew member on a commercial fishing vessel, with its attendant hard work and lengthy sleep deprivation — when he did not have the medication to treat his mental illness. Judge Cole concluded that Flemens must have been aware that he was placing his boat mates at risk.
Judge Cole's analysis, which is supported by the record, justified his decision to give the "duress" mitigating factor little weight.
Conclusion
For the reasons explained here, we conclude that the superior court applied the correct presumptive sentencing range when the court sentenced Flemens for first-degree assault. We further conclude that the superior court acted reasonably in not giving greater weight to mitigator AS 12.55.155(d)(3). The judgment of the superior court is AFFIRMED.