Opinion
Court of Appeals No. A-10223.
April 14, 2010.
Appeal from the Superior Court, Third Judicial District, Kodiak, Craig F. Stowers, Judge, Trial Court No. 3KO-07-500 Cr.
Appearances: Suzanne Rapoza, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Stephen B. Wallace, District Attorney, Kodiak, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Ralph Alan Harris appeals the sentence he received for second-degree assault, AS 11.41.210(a).
Harris first contends that the superior court improperly rejected three mitigating factors that he proposed under AS 12.55.155(d): mitigator (d)(3) — that Harris's criminal conduct was significantly affected by some degree of duress, coercion, threat or compulsion; mitigator (d)(6) — that his criminal conduct arose because of serious provocation from the victim; and mitigator (d)(7) — that the victim provoked Harris's criminal conduct to a significant degree.
In the alternative, Harris argues that even if the superior court correctly rejected these proposed mitigators, the sentence he received from the superior court — 7 years' imprisonment with 2 years suspended ( i.e., 5 years to serve) — is excessive.
As we explain in more detail in this opinion, we conclude that Harris's arguments concerning the three proposed mitigators are moot — because the sentencing judge expressly declared that, even if Harris's three proposed mitigators had been proved, he would not have adjusted Harris's sentence based on these mitigators. We have independently examined the record, and we conclude that, under the facts of Harris's case, the superior court's decision to impose a sentence of 5 years to serve despite the arguable presence of these proposed mitigators was not clearly mistaken.
This leaves Harris's claim that his sentence is excessive. Harris was a second felony offender for presumptive sentencing purposes, and he therefore faced a presumptive sentencing range of 4 to 7 years' imprisonment for the class B felony of second-degree assault. Harris's sentence — 7 years with 2 years suspended — is within this presumptive range. Under Alaska law, a defendant who receives a sentence within the applicable presumptive sentencing range has no right to appeal their sentence as excessive. AS 12.55.120(e).
However, Harris is entitled to petition the Alaska Supreme Court for discretionary review of his sentence on the ground that it is excessive; see Alaska Appellate Rule 215(a)(5). We therefore refer Harris's excessive-sentence claim to the supreme court pursuant to Appellate Rule 215(k).
Underlying facts
Just prior to the assault in this case, Harris had been engaged to a woman named Jennifer Adams. However, a day before the assault, Harris and Adams broke off their engagement.
On the night of the break-up, Harris saw Adams in a local bar, drinking with two men. There was no trouble at that time; Harris had a couple of beers at the bar and then he went home, where he drank a couple more beers and then went to sleep.
However, Harris got up in the middle of the night — around 4:00 a.m. — and decided to visit Adams's apartment to try to patch things up. When Harris arrived at Adams's apartment, he entered (without her permission) and discovered that there was a man in bed with Adams. Harris became angry and assaulted this man, hitting him repeatedly with his fists. (Harris also punched Adams in the face, but this separate assault was not charged.)
The victim of Harris's assault, Mike Rockstad, was taken unaware. Rockstad was apparently so deeply asleep, or so intoxicated, or both, that he offered no resistance to Harris. In fact, Rockstad later had no memory of the attack. (As part of Harris's plea agreement with the State, Harris conceded aggravator (c)(5) — that Rockstad was a particularly vulnerable victim.)
Rockstad suffered substantial injuries as a result of the attack: a broken jaw, a crushed cheekbone, and the loss of one of his teeth. The damage to Rockstad's facial bone structure was severe: his doctors concluded that he would require extensive surgeries over the course of two years to repair the damage to his jaw and cheekbone.
A grand jury indicted Harris for first-degree burglary, first-degree assault, and tampering with evidence. To resolve these charges, Harris agreed to plead guilty to the lesser offense of second-degree assault, a class B felony with a maximum penalty of 10 years' imprisonment. In addition, Harris stipulated that he was a second felony offender for presumptive sentencing purposes, and that aggravator AS 12.55.155(c)(5) (particularly vulnerable victim) applied to his sentencing. In return, the State dismissed the original charges.
See AS 11.41.210(b) (classifying second-degree assault as a class B felony) and AS 12.55.125(d) (establishing 10 years' imprisonment as the maximum penalty for non-sexual class B felonies).
As we explained earlier in this opinion, Harris proposed three mitigating factors: (d)(3), (d)(6), and (d)(7). All three of these mitigators were based on the underlying assertion that Harris committed the assault because he was incensed upon finding another man in bed with his ex-fiancée. Superior Court Judge Craig F. Stowers concluded that Harris had failed to prove any of these proposed mitigators. However, Judge Stowers additionally declared that, given the facts of Harris's case, even if the proposed mitigators did apply, he would have imposed the same sentence — 7 years' imprisonment with 2 years suspended ( i.e., 5 years to serve).
Why we conclude that, under the facts of Harris's case, H arris's arguments concerning the three mitigators are moot
We conclude that we need not resolve Harris's arguments concerning mitigators (d)(3), (d)(6), and (d)(7) because, when Judge Stowers sentenced Harris, he expressly declared that even if Harris's three proposed mitigators had been proved, he would not have adjusted Harris's sentence based on these mitigators.
To recapitulate the facts of Harris's offense: Harris surreptitiously entered the apartment of his ex-fiancée, Jennifer Adams, at four in the morning. There, he found Adams in bed with another man, Mike Rockstad. Harris punched Adams and began to beat Rockstad, who offered no resistance.
Taking advantage of Rockstad's vulnerability, Harris beat him so severely that he broke Rockstad's jaw and crushed his cheekbone — injuries extensive enough to require Rockstad to undergo a series of reconstructive surgeries. Harris also punched Adams in the face, but Adams suffered only bruising and swelling.
At the time of these events, there was an outstanding Idaho warrant for Harris's arrest, based on his violation of the conditions of felony probation in that state. Harris's felony conviction was for discharging a firearm at a dwelling house. This offense occurred while Harris was having an argument with his girlfriend: when she turned and walked away from him, back into the house, Harris pulled out a revolver and fired a shot into the house.
Harris also had two prior misdemeanor convictions for battery in Idaho, one in 2002 (a domestic battery) and the other in 2005. Harris served 90 days in jail for the second of these battery convictions.
Harris absconded from his felony probation in Idaho and came to Alaska in March 2007. He committed the assault in this case less than six months later (at the end of August 2007).
The pre-sentence investigator asserted, and Judge Stowers agreed, that Harris has a long-standing problem with alcohol. Harris admitted to the pre-sentence investigator that he was an "alcoholic in the past" but he asserted that he was in recovery. Notwithstanding this assertion, Harris committed his Idaho felony while he was under the influence, and he committed his present offense after a night of drinking.
Judge Stowers found that Harris's criminal history "shows a pattern of escalating domestic violence." The judge also noted that the rehabilitative programs offered to Harris through his probation in Idaho had apparently not altered his behavior. Instead, Harris had fled Idaho.
Based on this history, and based on Harris's failed probation in Idaho, Judge Stowers declared himself "skeptical" concerning Harris's potential for rehabilitation, but the judge concluded that it was important to make further efforts toward this goal. For this reason, Judge Stowers concluded that a portion of Harris's sentence should be suspended, so that Harris would receive the benefits of probation.
At the same time, Judge Stowers concluded that Harris was a dangerous offender, and that isolation and deterrence were primary sentencing goals. The judge noted that Harris was 43 years old; thus, his pattern of assaultive behavior, and domestic violence in particular, could no longer be attributed to immaturity.
As a second felony offender convicted of a class B felony, Harris faced a presumptive sentencing range of 4 to 7 years' imprisonment. Moreover, because Harris stipulated to aggravator (c)(5), Judge Stowers was authorized to impose any sentence up to the 10-year statutory maximum for Harris's offense. Nevertheless, the judge did not invoke this expanded sentencing authority; he imposed a sentence in the middle of the presumptive range: 7 years with 2 years suspended ( i.e., 5 years to serve).
AS 12.55.155(a)(1).
With regard to Harris's three proposed mitigators, Judge Stowers declared that, even if Harris had proved one or more of them, he would have imposed the same sentence — because of the facts of this case, and because of Harris's history of anger and violence.
In Juneby v. State, 641 P.2d 823, 833 (Alaska App. 1982), this Court cautioned sentencing judges that, in order to forestall unjustified disparities in sentencing, judges should consider carefully before relying on aggravating or mitigating factors to impose a sentence that deviates substantially from presumptive sentencing guidelines. Indeed, this Court has held that a defendant's proof of mitigating factors "does not automatically call for [any] reduction of the [applicable] presumptive term." Palmer v. State, 770 P.2d 296, 299 (Alaska App. 1989), citing Smith v. State, 711 P.2d 561, 567, 572 n. 8 (Alaska App. 1985).
Even when aggravating and/or mitigating factors are proved, a sentencing judge must analyze the defendant's case under the sentencing criteria codified in AS 12.55.005 to determine "[w]hether, or how much, a presumptive term should be adjusted on account of aggravating and mitigating factors". Hunt v. State, 18 P.3d 69, 70 (Alaska App. 2001).
Citing Juneby, 641 P.2d at 835 n. 21, 838, and Juneby (opinion on rehearing), 665 P.2d 30, 32-33 (Alaska App. 1983).
We have independently examined the record, and we conclude that, given the facts of Harris's case, and given the fact that Harris faced a presumptive range of 4 to 7 years' imprisonment, Judge Stowers was not clearly mistaken when he concluded that, even if the circumstances of Harris's case constituted a mitigating provocation, Harris should nevertheless receive a sentence of 5 years to serve.
Because we conclude that Judge Stowers's decision on this issue is not clearly mistaken, we need not resolve Harris's contentions regarding the three proposed mitigators. Those contentions are moot. Harris's claim that his sentence is excessive
Harris also argues that his sentence of imprisonment — 7 years with 2 years suspended — is excessive.
As we have explained, Harris's offense (second-degree assault) is a class B felony, and Harris (because of his prior felony conviction in Idaho) was a second felony offender for presumptive sentencing purposes. He therefore faced a presumptive sentencing range of 4 to 7 years' imprisonment.
Harris's sentence is within this presumptive range. Under Alaska law, a defendant who receives a sentence within the applicable presumptive sentencing range has no right to appeal their sentence as excessive. AS 12.55.120(e).
However, Harris is entitled to petition the Alaska Supreme Court for discretionary review of his sentence on the ground that it is excessive; see Alaska Appellate Rule 215(a)(5). We therefore refer Harris's excessive-sentence claim to the supreme court pursuant to Appellate Rule 215(k).
Conclusion
The judgement of the superior court is AFFIRMED, with the exception of Harris's claim that his sentence is excessive. We refer that claim to the supreme court.
I write separately to explain why I believe that, of the three mitigators that Harris proposed, mitigator AS 12.55.155(d)(6) is the only one that applies to his case.
As explained in the lead opinion, Harris proposed three mitigating factors to the superior court: mitigators (d)(6), (d)(7), and (d)(3). All three of these mitigators were based on the underlying assertion that Harris committed the assault because he was incensed upon finding another man in bed with his ex-fiancée.
On appeal, Harris renews his argument that each of these three separate mitigators applies to his claim of provocation. But more specifically, Harris contends that mitigators (d)(7) and (d)(3) apply to cases where a defendant unsuccessfully attempts to prove mitigation under (d)(6) — that is, cases where a defendant is convicted of felony assault and, at sentencing, relies on a claim of mitigating provocation, but the evidence of provocation is not sufficient to establish the "serious provocation" required by mitigator (d)(6).
For the reasons explained here, I conclude that in cases covered by mitigator (d)(6) — in other words, when a defendant is being sentenced for felony assault and the defendant relies on a claim of provocation — the defendant must establish the "serious provocation" required by mitigator (d)(6). Mitigators (d)(7) and (d)(3) are not available as "fall-back" alternatives if the defendant fails to prove that the provocation in their case amounted to "serious provocation".
Mitigator (d)(6) states that when a felony defendant is being sentenced for "assault under AS 11.41.200 — 11.41.220" — in other words, when a defendant is being sentenced for first-, second-, or third-degree assault — the offense is mitigated if "the defendant acted with serious provocation from the victim".
As used in mitigator (d)(6), the phrase "serious provocation" is a term of art. AS 12.55.155(h) declares that, for purposes of applying mitigator (d)(6), sentencing courts are to use the definition of "serious provocation" found in Alaska's heat of passion statute, AS 11.41.115. The heat of passion statute defines "serious provocation" as "conduct . . . 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". AS 11.41.115(f)(2).
Putting all of this together, mitigator (d)(6) codifies the rule that when a defendant is sentenced for felony assault (assault in the first, second, or third degree), the offense will be mitigated if the defendant proves that they were subjected to the same amount or degree of provocation that would reduce a murder to manslaughter under the heat of passion statute, AS 11.41.115.
In contrast, under mitigator (d)(7), when a defendant is being sentenced for any felony "except . . . a crime defined by AS 11.41.410 — 11.41.470" — in other words, for any felony other than a sexual felony — the offense is mitigated if "the victim provoked the crime to a significant degree".
The Alaska criminal code does not expressly define what constitutes "significant provocation" for purposes of mitigator (d)(7). However, in Roark v. State, 758 P.2d 644, 646-47 (Alaska App. 1988), this Court suggested that the concept of "significant provocation" was intended to encompass a greater range of provocation than the "serious provocation" required by mitigator (d)(6).
That is the position adopted by Harris in the present appeal. Harris argues that even if the circumstances of his case do not amount to "serious provocation" for purposes of mitigator (d)(6), those circumstances nevertheless amount to "significant provocation" for purposes of mitigator (d)(7). Thus, Harris continues, even if Judge Stowers correctly rejected mitigator (d)(6), the judge still should have ruled in Harris's favor on mitigator (d)(7).
Although the concept of "significant provocation" codified in mitigator (d)(7) may be broader than the concept of "serious provocation" in mitigator (d)(6), I conclude that the legislature did not intend mitigator (d)(7) to be a fall-back alternative for felony assault defendants who fail to prove mitigator (d)(6).
Mitigator (d)(6) requires proof of "serious provocation" (a more restrictive standard than "significant provocation"), and this mitigator applies to only three offenses: the three degrees of felony assault defined in AS 11.41.200, 210, and 220. In contrast, mitigator (d)(7) (with its less restrictive standard of provocation) applies to all felonies "except . . . a crime defined by AS 11.41.410 — 11.41.470".
If one were to read the language of mitigator (d)(7) literally, this mitigator would apply to all defendants being sentenced for first-, second-, and third-degree assault. In other words, mitigator (d)(7), with its lower standard of provocation, would completely overlap with mitigator (d)(6), which requires proof of a higher standard of provocation.
This expansive interpretation of mitigator (d)(7) would essentially nullify mitigator (d)(6). There would never be a need for a defendant to prove, or a sentencing judge to find, the "serious provocation" required by mitigator (d)(6) if the less restrictive "significant provocation" required by mitigator (d)(7) w as all that w as needed to mitigate the defendant's crime.
Harris's suggested interpretation of mitigator (d)(7) would violate "one of the primary rules of statutory construction: that a court should assume that the legislature did not enact redundant or useless statutes." As both this Court and the Alaska Supreme Court have noted, "one of the prime directives of statutory construction is to avoid interpretations that render parts of a statute inoperative or superfluous, void or insignificant." Champion v. State, 908 P.2d 454, 464 (Alaska App. 1995), quoting 22,757 Square Feet, more or less v. State, 799 P.2d 777, 779 (Alaska 1990).
Carpentino v. State, 42 P.3d 1137, 1142 (Alaska App. 2002).
Moreover, if this Court interpreted mitigator (d)(7) to apply to the felony assault offenses specified in mitigator (d)(6), we would violate "the basic principle of statutory construction favoring a specific provision of a statute over a general one when the two conflict." McGee v. State, 162 P.3d 1251, 1255 (Alaska 2007).
Citing Allen v. Alaska Oil Gas Conservation Commission, 147 P.3d 664, 668 (Alaska 2006) ("In general, if two statutes conflict, . . . the specific controls over the general."). See also Petrolane, Inc. v. Robles, 154 P.3d 1014, 1034 (Alaska 2007), quoting City of Cordova v. Medicaid Rate Commission, 789 P.2d 346, 352 (Alaska 1990) ("It is a maxim of construction that specific statutes should be given precedence over more general ones.").
For these reasons, I conclude that mitigator (d)(7) does not apply to defendants who are being sentenced for felony assault under AS 11.41.200 — 220. Instead, mitigator (d)(6) defines the standard of provocation that, if proved, will mitigate these felony assaults.
The next issue is whether mitigator (d)(3) applies to Harris's case.
Mitigator (d)(3) applies to cases where "the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but that significantly affected the defendant's conduct". Harris notes that his assaultive conduct stemmed from his discovery of his ex-fiancée in bed with another man. He contends that this discovery gave rise to a type of emotional "duress" or "compulsion" analogous to heat of passion.
More specifically, Harris argues that he acted under a type of "passion" — and that, even if the circumstances of his case do not rise to the level of "provocation" required by mitigator (d)(6) (or even mitigator (d)(7)), the lesser degree of provocation in his case would still qualify as "duress" or "compulsion" under mitigator (d)(3).
Obviously, Harris's assault on Rockstad did not arise from "duress" as that term is normally understood in the criminal law. As defined in AS 11.81.440(a), the defense of "duress" applies to situations where "the defendant was coerced to [engage in criminal conduct] by the use of unlawful force upon the defendant or a third person, which force a reasonable person in the defendant's situation would have been unable to resist." In other words, the defense of "duress" defined in AS 11.81.440 (a) does not refer to situations where a person commits a crime because of overmastering emotion.
But in Bell v. State, 658 P.2d 787 (Alaska App. 1983), this Court held that even though the word "duress", standing alone, might refer only to instances where the defendant is subjected to actual or threatened unlawful force, the complete phrase "duress, coercion, threat, or compulsion" has a broader scope. 658 P.2d at 790-91. We noted that mitigator (d)(3) does not require proof of a valid defense of duress or compulsion. To the contrary: the mitigator expressly applies to types of duress, coercion, threat, or compulsion that are "insufficient to constitute a complete defense, but that significantly affected the defendant's conduct". Id. at 790.
More particularly, we held in Bell that the phrasing of mitigator (d)(3) was broad enough to encompass a situation where a prisoner escaped from a correctional facility because he felt compelled to take immediate action to deal with a sudden family emergency. Id. at 791.
One might argue, based on Bell, that the term "compulsion" is potentially broad enough to encompass situations where a defendant commits an assault while in the grip of overmastering emotion, as Harris suggests. But in mitigator (d)(3), the word "compulsion" does not appear by itself. Rather, it is one component of the phrase, "duress, coercion, threat, or compulsion". Under the principle of noscitur a sociis, we are to construe the word "compulsion" in light of the other three words in this phrase: "duress, coercion, [or] threat".
Noscitur a sociis — literally, "it is known by its associates" — is the principle of statutory construction which directs a court to construe an unclear or ambiguous word or phrase in light of the words immediately surrounding it. See Garner, Black's Law D ictionary (8th ed. 2004), p. 1087; Morgan v. State, 139 P.3d 1272, 1277 n. 8 (Alaska App. 2006).
This principle of statutory construction suggests that the term "compulsion" should not be interpreted to include overmastering emotion or passion of the type Harris proposes. And, indeed, in Lee v. State, 673 P.2d 892 (Alaska App. 1983), this Court rejected the argument that mitigator (d)(3) applied to crimes stemming from purely emotional "compulsion".
The defendant in Lee was convicted of first-degree assault for shooting and severely wounding a police officer who arrived at Lee's home to investigate the neighbors' report of a disturbance. Lee argued that mitigator (d)(3) applied to his offense because he was under emotional stress at the time of the offense and had acted out of "internal compulsion". In support of this argument, Lee relied on his troubled financial and domestic situations, his intoxication at the time of the shooting, and expert testimony indicating that he had an impulsive personality and was easily provoked.
Lee, 673 P.2d at 893.
Id. at 896.
This Court acknowledged that, in Bell, we construed mitigator (d)(3) as applying to a type of "compulsion" that was internal (as opposed to a compulsion arising from the coercive or threatening actions of other people). But we noted that our decision in Bell dealt with "an offense committed under a good faith but unreasonable belief by the defendant that his conduct was necessary". We then declared:
Id.
Id. at 896, citing Bell, 658 P.2d at 791.
Nothing in Bell indicated that the scope of [mitigator] (d)(3) is sufficiently broad to encompass behavior that is merely impulsive or the result of situational stress. Lee's reliance on this mitigating factor was based exclusively on a showing of impulsive character and financial and emotional stress. Lee did not present any evidence indicating that he acted out of a mistaken belief that his conduct was necessary. We therefore conclude that there is insufficient evidence in the record to support a finding that Lee's conduct was the result of internal compulsion within the meaning of [mitigator (d)(3)].
Lee, 673 P.2d at 896.
This Court's holding in Lee — that mitigator (d)(3) does not encompass the type of mental or emotional "compulsion" that arises purely from situational stress or from a defendant's impulsiveness — leads me to conclude that Harris is not entitled to rely on mitigator (d)(3) under the facts of this case. The only "compulsion" that prompted Harris to commit the assault in this case was the jealousy and anger he felt when he discovered his ex-fiancée in bed with another man.
This conclusion is bolstered by a factor that I mentioned earlier: Harris's argument in favor of mitigator (d)(3) is premised on the assertion that mitigator (d)(3) is a fall-back alternative for defendants who claim that they acted under provocation, but who fail to prove that the provocation they experienced was sufficient to establish either mitigator (d)(6) or mitigator (d)(7).
If we were to interpret mitigator (d)(3) in this fashion, there would never be a need for a defendant to prove, or a sentencing judge to find, the "serious provocation" required by mitigator (d)(6) or the "significant provocation" required by mitigator (d)(7). In other words, if this Court adopted Harris's argument that mitigator (d)(3) codifies or incorporates a lesser standard of provocation, we would render mitigators (d)(6) and (d)(7) redundant or useless in those cases where a defendant claims that their offense is mitigated by provocation.
The rules of statutory construction counsel against this course. As I noted earlier in this concurrence, "[o]ne of the prime directives of statutory construction is to avoid interpretations that render parts of a statute inoperative or superfluous, void or insignificant." Champion v. State, 908 P.2d 454, 464 (Alaska App. 1995).
Harris points out that mitigator (d)(3) itself declares that it applies to cases where a defendant acted under "some degree of duress . . . or compulsion insufficient to constitute a complete defense". But, in a real sense, this language only states the obvious. If a defendant acted under the type of duress or compulsion that constituted a defense to the charge, the defendant would not have been convicted, and the trial court would never need to address the issue of whether the sentence should be mitigated. The issue of sentence mitigation only arises when the claimed duress or compulsion is not sufficient to constitute a defense to the charge.
But here, the question is not whether the provocation that Harris experienced was sufficient to constitute a defense to the charge of second-degree assault. Rather, the question is whether that provocation was sufficient to establish mitigator (d)(6) — the mitigator that, by its terms, covers all cases where a defendant convicted of felony assault claims that their offense is mitigated by provocation. The language of mitigator (d)(3) does not suggest that the legislature intended this mitigator to operate as an alternative justification for sentence mitigation in cases where a defendant claims provocation but fails to prove mitigator (d)(6) or (d)(7) (whichever one applies to the defendant's crime).
For these reasons, I conclude that mitigator (d)(3) does not apply to Harris's claim of provocation.