Opinion
Court of Appeals No. A-8770.
December 20, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-02-2503 CR.
Averil Lerman, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
On March 24, 2002, Antonio E. Roberson killed Ronald D. Stevens by stabbing him in the chest with a knife. Roberson pleaded no contest to one count of second-degree murder. Superior Court Judge Larry D. Card imposed a 60-year prison term.
AS 11.41.110(a)(2).
Roberson appeals, arguing that Judge Card committed several errors leading to an excessive sentence. We reject Roberson's claims and affirm Roberson's sentence.
Background facts and proceedings
On the evening of March 24, 2002, Anchorage police were called to the vicinity of the Burger Stop restaurant near Benson Boulevard in the Spenard area of Anchorage. The police found Stevens lying on the ground with a stab wound to his chest. Nearby, a car belonging to Stevens was unoccupied and idling. Stevens died shortly thereafter.
The police spoke to Laura Baker, who said she saw the stabbing. Baker told officers that she heard Stevens call out for help and saw Stevens stabbed once in the chest by another man. Baker went to a nearby liquor store to call for help. Both Baker and the liquor store clerk, Kenneth Franklin, watched the assailant get in and out of Stevens's car twice before fleeing the scene on foot. Baker and Franklin gave the police a general description of the suspect.
A few blocks away, an officer contacted a man who met this general description. This man, identified as Antonio Roberson, was covered in snow and had bleeding cuts on his hands. Roberson explained that he had been trying to get through deep snow and had fallen, causing the cuts on his hands.
Neither Baker nor Franklin were able to identify Roberson as the assailant. But officers followed tracks from the scene that led to a blood-stained tan jacket which matched the tan vest Roberson was wearing when he was first contacted by the police.
Roberson agreed to go to the police station to discuss the situation. The police advised Roberson of his Miranda rights and Roberson waived them. Roberson told officers that he had nothing to do with Stevens's stabbing.
Roberson offered to take a polygraph test. The police conducted the test, and the results indicated he was not telling the truth.
Roberson then told officers that he had been a witness to Stevens's stabbing but left the scene because he did not want to get involved. Roberson said he had taken off his jacket because it was slowing him down.
Ultimately, Roberson admitted that he stabbed Stevens. According to Roberson, Stevens had picked Roberson up while he was walking to the transit center in downtown Anchorage. Roberson told officers that Stevens immediately started to touch and fondle him. According to Roberson, they parked in several locations around town while Stevens forced Roberson to engage in sexual acts.
At some point, Roberson asked Stevens to take him to the Wal-Mart in Eagle River — Roberson told officers he wanted to go to Eagle River to "buy time." Roberson went into the store while Stevens remained in the car. While inside, Roberson bought a large hunting knife, which Roberson referred to as a "don't-fuck-with-me-or-you-die knife." Roberson told officers he wanted to use the knife to forcibly take Stevens's car to escape the situation.
Roberson returned to Stevens's car and drove back to Anchorage with Stevens to the vicinity of the Burger Stop. When they arrived, Roberson pulled out the knife and told Stevens to get out of the car. Stevens resisted and Roberson cut Stevens's fingers. Stevens got out of the car and called to a nearby witness (Baker) for help. According to Roberson, Stevens started "getting physical" with him, and Roberson stabbed Stevens in the chest.
Roberson then got into Stevens's car and tried to drive away. However, the car was stuck in the snow and Roberson could not get it to move. Roberson fled on foot when he heard approaching police sirens. He was found a few minutes later by the police.
The grand jury indicted Roberson on one count of first-degree murder, two counts of second-degree murder, one count of first-degree robbery, and one count of tampering with physical evidence. Before trial, Roberson requested a competency evaluation.
AS 11.41.100(a)(1)(A).
AS 11.41.110(a)(2) (3).
AS 11.41.500(a)(1) and/or (3).
AS 11.56.610(a)(1).
Judge Card heard testimony from three experts on the competency issue: Dr. Susan LaGrande, a clinical psychologist hired by Roberson; Dr. Lawrence Maile, a forensic psychologist and clinical director at Alaska Psychiatric Institute (API) who evaluated Roberson at the request of the court; and Dr. Mark Erickson, a psychiatrist at API who provided an opinion at the court's request on the effect medication might have on Roberson's behavior at trial.
The court was concerned that Roberson would be agitated at trial and be unable to assist his counsel.
Dr. LaGrande and Dr. Maile offered different opinions on Roberson's competency. Dr. LaGrande opined, based on tests she performed on Roberson, that he was not competent to assist in his own defense. Dr. Maile found that Roberson had cognitive deficits and "mild mental retardation," both of which could contribute to incompetency to stand trial. But Dr. Maile concluded that because Roberson had "sufficient cognitive capacity, his [mental impairments were] not so disabling that he [would be] unable to understand his charges and provide useful and relevant information in his defense."
Judge Card found Roberson competent to stand trial. Roberson pleaded no contest to second-degree murder, and the State dismissed the remaining charges.
At sentencing, Judge Card found that Roberson's offense was typical of second-degree murder and that Roberson was not a worst offender. The State presented a detailed history of Roberson's behavior, starting with Roberson's childhood and extending through his incarceration for Stevens's murder. Roberson's criminal history included two prior felony convictions.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) (holding that a sentencing court must find that a defendant is a worst offender before imposing the maximum term).
Even though the aggravating and mitigating factors codified in AS 12.55.155©) and (d) do not apply to second-degree murder, we have approved the use of these factors by analogy to analyze how a defendant's crime should be viewed in comparison to a typical second-degree murder.
See Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984).
The parties asserted that certain of those factors applied. Roberson conceded aggravator ©)(20) (Roberson was on probation or parole release at the time of the offense). Judge Card found aggravator ©)(8) (Roberson had a history of aggravated or repeated instances of assaultive behavior). Judge Card rejected mitigator (d)(3) (Roberson's offense was committed under threat or coercion insufficient to constitute a complete defense but that affected the defendant's behavior).
Judge Card found that Roberson was dangerous to the public, and he imposed a 60-year term to serve.
Discussion
Second-degree murder is not governed by presumptive sentencing; a sentencing court has the discretion to impose a sentence ranging from 10 to 99 years. Roberson argues that his conduct and the circumstances of his case are typical for a second-degree murder such that his sentence should fall within the benchmark sentencing range this court recognized in Page v. State. After reviewing sentences imposed for cases of second-degree murder, we stated in Page that "a first felony offender convicted of a typical second-degree murder should receive a sentence of between 20 and 30 years to serve."
See AS 12.55.125(b).
657 P.2d 850 (Alaska App. 1983).
Carlson v. State, 128 P.3d 197, 203 (Alaska App. 2006) (discussing Page, 657 P.2d at 854-55).
But Roberson is not a first felony offender. Roberson has two prior felony convictions. He had been released from prison only a couple of days before he stabbed Stevens.
In Phillips v. State, Phillips was convicted of second-degree murder, had two prior felony convictions, had been released from prison only two days before he committed the homicide, and received the maximum 99-year term for his second-degree murder conviction. We recognized that the Page benchmark applied to sentencings involving "a typical first felony offender convicted of a typical second-degree murder." Because Phillips was a third felony offender w ho committed second-degree murder while on felony release for only two days, we concluded that those facts alone justified a sentence above the Page benchmark.
70 P.3d 1128 (Alaska App. 2003).
Id. at 1143.
Id.
Id.
In the present case, Judge Card recognized the Page benchmark, but he justifiably concluded that Roberson's conduct and his background warranted a departure from that benchmark.
Roberson next argues that Judge Card's findings regarding Roberson's intelligence were clearly erroneous. At one point during sentencing, Judge Card stated: "[Roberson has] average, maybe even high average intelligence." Roberson argues that this finding was clearly erroneous because it "disregards the unanimous expert testimony submitted by both the prosecution and defense experts, and appears to be based on [Judge Card's] own definition of mental retardation. . . ."
In 1993, Roberson underwent standardized intelligence testing, and, based on the testing, he was diagnosed with "mild mental retardation." Mental retardation is a clinical condition that generally indicates sub-average intellectual functioning. During a hearing, witnesses called by each party opined that Roberson experienced some form of mental retardation.
See Atkins v. Virginia, 536 U.S. 304, 309 n. 3, 122 S. Ct. 2242, 2245 n. 3, 153 L. Ed. 2d 335 (2002) (noting the definitions of "mental retardation" from the American Association on Mental Retardation and the American Psychiatric Association).
Roberson argues that "mild mental retardation" is a medical diagnosis, not a legal status, and that Judge Card erred because his conclusion that Roberson "is not mentally retarded" is not supported by the record. Roberson argues that this mistake led Judge Card to impose an unusually high sentence.
But it appears to us from reading all of Judge Card's discussion at sentencing that Judge Card was speaking about Roberson's performance when assessing and reacting to situations rather than a finding on his clinical condition. There is support in the record for Judge Card's finding that Roberson was able to analyze the situation he was in and use analytical skills to react.
For example, Judge Card noted that Roberson told officers that he deduced that Stevens had died because the ambulance carrying Stevens left the scene in no particular hurry and did not have its siren on. Roberson also told officers that he thought it was likely that Stevens was dead because he (Roberson) had stabbed Stevens in the heart. Roberson also resorted to subterfuge when initially confronted by officers, telling them that he had not been involved in the murder but fled the scene because he did not want to get involved. Judge Card also found that Roberson demonstrated intellectual capacity when he told police that he had not initially lied to them but instead only told them part of the story.
Even so, it is apparent from our review of the record that, in sentencing Roberson, Judge Card was more concerned with the history of Roberson's impulsive behavior than he was about Roberson's intellectual capacity. Judge Card found that Roberson had "no or little" impulse control, that he was "highly impulsive," and even that Roberson had been described by some of the professionals in his life as "sociopathic." Judge Card also thought Roberson's impulsive tendency was demonstrated by his threats while he was in custody to kill correctional officers and their families, saying he would locate their homes on the Internet and, knowing the officers' work schedules, go to their homes and kill their families first before killing the officers. As such, we do not find Judge Card's findings about Roberson's intelligence to be clearly erroneous.
Roberson next contends that Judge Card wrongly concluded that Roberson had not shown mitigator (d)(3), that he "committed the offense under some degree of duress, coercion, threat, or compulsion . . . that significantly affected [his] conduct." Roberson points out that Judge Card employed a clear and convincing evidence standard, the standard required for proof of a mitigating factor when presumptive sentencing applies. When a sentencing judge considers mitigating factors by analogy in sentencing for an offense not governed by presumptive sentencing, the judge is not required to apply the clear and convincing standard.
AS 12.55.155(d)(3).
See former AS 12.55.155(f).
See Krack v. State, 973 P.2d 100, 104 (Alaska App. 1999).
Even though Judge Card apparently applied the wrong standard, this issue is moot. Judge Card found that Roberson had not acted under duress or compulsion because of Stevens's sexual advances. Instead, Judge Card found that Roberson had stabbed Stevens in an attempt to take Stevens's car, essentially a case of felony murder rather than a killing committed under a degree of duress or compulsion due to the sexual advances.
Next, Roberson argues his sentence violates the guarantee of trial by jury provided by both the United States and Alaska Constitutions. Roberson argues his sentence is illegal under Blakely v. Washington and Malloy v. State because Judge Card relied on facts that he (rather than a jury) found to increase Roberson's sentence beyond the Page benchmark.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
1 P.3d 1266 (Alaska App. 2000).
While Roberson's appeal was pending, this court decided, in Carlson v. State, that the Page benchmark sentencing range does not implicate the Sixth Amendment rights defined in Apprendi v. New Jersey and Blakely. We stated that "a defendant convicted of second-degree murder has no right to a jury trial on the question of whether [he] should or should not receive a sentence above the Page benchmark range." We therefore reject Roberson's Blakely claim. For the same reasons, we reject Roberson's claim that a departure from the Page benchmark violates the right to a jury trial under the Alaska Constitution.
128 P.3d 197 (Alaska App. 2006).
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
Carlson, 128 P.3d at 211.
Id.
Roberson next contends that Judge Card improperly considered Roberson's potential eligibility for parole when imposing the 60-year term. In Jackson v. State, the Alaska Supreme Court disapproved of the practice of sentencing defendants to a longer prison term based on the assumption that the Parole Board would release the defendant soon after the defendant became eligible for parole release.
616 P.2d 23 (Alaska 1980).
Id. at 24-25.
But it is apparent from our review of Judge Card's comments that he did not base his sentence on such an assumption. Judge Card said:
I recognize under the Truth in Sentencing that Mr. Roberson will be eligible for discretionary parole after serving 20 years. But I also recognize that for the next 40 years of that, assuming that he has not lost any good time, that he will be subject to having a parole officer and if he turns down a parole officer and refuses parole, then he'll have to serve basically the rest of his natural life incarcerated. So this split sentence gives him an opportunity, it serves the time that the court believes is well within in the standard of the time to serve, even though the court's not required or allowed — under Truth in Sentencing I must at least determine what the expected minimum time of incarceration is, and under the law the minimum time of incarceration for eligibility for discretionary parole is 20 years.
Judge Card was required to inform Roberson of the minimum time he would serve before becoming eligible for parole. Given this requirement and Judge Card's remarks, it is obvious that Judge Card did not impose Roberson's term of imprisonment using the assumption forbidden by Jackson — the assumption that Roberson should be sentenced to a longer term of imprisonment because the Parole Board would release him when he became eligible to apply for parole.
See AS 12.55.025(a)(3).
Judge Card did discuss parole eligibility when he sentenced Roberson to serve 60 years. But it is apparent that Judge Card's aim was not to ensure that Roberson served 20 years, but instead to leave the possibility open that Roberson might be released on parole in as little as 20 years. This does not violate Jackson.
Finally, in his reply brief, Roberson argues that sentence enhancements based on mental disease or defect violate several constitutional provisions in both the United States and Alaska Constitutions, including the due process and equal protection clauses, the prohibition against cruel and unusual punishment, and a defendant's right to rehabilitation expressed in article 1, section 12 of the Alaska Constitution. In addition, Roberson argues that enhancements based on mental disease or defect also violate the federal Americans with Disabilities Act. However, because Roberson raises these arguments for the first time in his reply brief, he has waived them.
See Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1111 (Alaska 2002).
In summation, Judge Card's sentencing analysis recognized the Page benchmark. He considered, by analogy, the aggravating factors discussed above. He found that Roberson was dangerous because of his impulsive, inexplicable behavior, which his history showed was escalating substantially. Judge Card found that Roberson presented a continuing threat of violence. He concluded that Roberson's offense and history justified a sentence above the Page benchmark.
Judge Card evaluated the sentencing factors announced in State v. Chaney and codified in AS 12.55.005. He ranked community condemnation as paramount, followed by the need to isolate Roberson to protect the public, followed by Roberson's individual deterrence. He found that rehabilitation was important, but did not rank its importance as high as the other factors.
477 P.2d 441, 444 (Alaska 1970).
From our review of the sentencing record in this case, we conclude that Roberson's 60-year term is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
The judgment of the superior court is AFFIRMED.