Opinion
A-13514
11-23-2022
PAGOPAGO B. LELILIO, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-17-05720 CR Erin B. Marston, Judge.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Hazel C. Blum, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Pagopago B. Lelilio was convicted, following a jury trial, of attempted first-degree murder, third-degree assault, and third-degree weapons misconduct (for being a felon in possession of a concealable firearm) after he fired a gun during a physical struggle with Anchorage police officers. The superior court sentenced Lelilio to a composite term of 30 years' incarceration - 25 years for the attempted murder conviction, 3 years for the assault conviction (with 2 years running concurrently to the sentence imposed for the attempted murder conviction), and 4 consecutive years for the weapons misconduct conviction. On appeal, Lelilio challenges his conviction for attempted murder and his sentence.
AS 11.41.100(a)(1)(A) & AS 11.31.100(a), AS 11.41.220(a)(1)(A), and AS 11.61.200(a)(1), respectively. The jury also found Lelilio guilty of a second count of third-degree assault under AS 11.41.220(a)(1)(A), but this count merged with the attempted murder conviction.
First, Lelilio argues that there was insufficient evidence to support his attempted murder conviction - in particular, that he intended to kill Officer Ryan Proegler when he discharged the gun. When we review a claim of insufficient evidence, we view the evidence - and all reasonable inferences from that evidence - in the light most favorable to upholding the jury's verdict. We then ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009)).
Id.
In this case, both of the officers who tackled Lelilio to the ground after pursuing him on foot, i.e., Officers Proegler and Nicholas Saldana, testified that they heard a gunshot fired from very close to them after they had all fallen to the ground while attempting to restrain Lelilio. Officer Proegler testified that he felt dirt spray up and hit his face as the bullet impacted the ground near him. The officers then observed the tip of a handgun pointing through a newly created hole in Lelilio's jacket, which was wrapped around Lelilio's right hand. Officer Proegler testified that he then saw the muzzle of the gun pointed at him, from only a few feet away. A weapons expert testified that a person would need to surmount three safety mechanisms and use an above-average amount of force to pull the trigger in order to fire this particular gun.
While Lelilio was on the ground, the officers tried to secure his arm and keep it from moving, but they testified that Lelilio was struggling and his arm was rotated so that the gun was pointing back toward the officers. Lelilio continued to struggle until another officer arrived and used a taser to subdue Lelilio. Although Lelilio verbally surrendered at that point, he did not release the gun and yet another officer had to physically remove it from his hand. Viewing this evidence in the light most favorable to the jury's verdict, we conclude that a reasonable juror could have found beyond a reasonable doubt that Lelilio fired the gun with intent to kill Officer Proegler.
Second, Lelilio argues that the superior court applied the wrong legal test when it denied his motion for a new trial on the attempted murder charge under Alaska Criminal Rule 33. Specifically, Lelilio argues that the court failed to personally weigh the evidence as required by this Court's recent decision in Phornsavanh v. State But in its ruling, the superior court acknowledged that it was required to "assess the weight of the evidence and the credibility of the witnesses without deference to the jury's view of these matters." We therefore reject Lelilio's claim of error.
Phornsavanh v. State, 481 P.3d 1145, 1159 (Alaska App. 2021).
Third, Lelilio argues that the sentence imposed by the superior court was excessive. When we review an excessive sentence claim, we independently examine the record to determine whether the sentence is clearly mistaken. The "clearly mistaken" test reflects that "reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence," and that a reviewing court will not modify a sentence unless it falls outside "a permissible range of reasonable sentences."
Smith v. State, 349 P.3d 1087, 1091 (Alaska App. 2015); McClain v. State, 519 P.2d 811, 813 (Alaska 1974).
Smith, 349 P.3d at 1091 (internal citations omitted); State v. Wentz, 805 P.2d 962,965 (Alaska 1991) (quoting McClain, 519 P.2d at 813).
We have reviewed the record, and we conclude that the sentence imposed is not clearly mistaken. As the superior court acknowledged, none of the officers suffered any physical injuries as a result of their encounter with Lelilio. But the court still found that this was a "very serious case" because (1) it involved an attack on a police officer, (2) the shot almost hit the police officer, (3) the shot was in a residential area where other innocent people could have been injured, and (4) the officers suffered emotional distress as a result of the incident. And Lelilio conceded that five statutory aggravating factors applied to his case.
See Starkweather v. State, 244 P.3d 522,530-31 (Alaska App. 2010) (recognizing that attempted murder encompasses a broad range of conduct and courts must consider "the nature and extent of the victim's injuries" to fashion an appropriate sentence).
See AS 12.55.155(c)(8) (prior assault convictions), (c)(l 5) (three or more prior felony convictions), (c)(20) (defendant on probation and parole), (c)(21) (repeated similar convictions, with respect to the assault conviction), and (c)(13) (conduct directed at peace officer).
The court also noted that Lelilio's prospects for rehabilitation were "guarded" because of his multiple prior felony convictions and fourteen infractions incurred while he was incarcerated (many of which were for fighting or possessing weapons). And the court described the facts of this case as "horrendous," and warranting a significant period of isolation in order to meet the sentencing goals of deterrence, protection of the public, and community condemnation.
Lelilio argues that the superior court should not have "stacked" the sentence for his weapons misconduct conviction on top of the sentence imposed for the attempted murder conviction because the charges arose out of a single episode. However, contrary to Lelilio's argument, there is no indication that the court impermissibly "stacked" the sentences when it imposed consecutive time for the weapons misconduct conviction. Rather, the record demonstrates that the superior court structured a composite sentence to account for Lelilio's conduct and the different societal interests underlying his convictions. Accordingly, we reject Lelilio's sentencing claims.
Finally, Lelilio argues - and the State concedes - that the second page of the judgment issued in this case inappropriately indicates that the verdicts on Counts I and III (attempted first-degree murder and third-degree assault) merged for sentencing purposes only. Because the parties are correct that the judgment is mistaken, we remand this case to the superior court so it may issue an amended judgment that properly reflects the merger by deleting the reference to Count III on the second page.
See Nicklie v. State, 402 P.3d 424, 426 (Alaska App. 2017) (explaining that Alaska does not recognize merger "for sentencing purposes only").
We REMAND this case to the superior court to correct the judgment. We otherwise AFFIRM the judgment of the superior court.