Opinion
Court of Appeals No. A-10497.
April 6, 2011.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-07-2965 CR.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant.
Alison B. Collins, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
In a jury trial conducted by Superior Court Judge Eric Smith, Jeremy T. Kosbruk was convicted of robbery in the second degree, burglary in the first degree, two counts of assault in the third degree, and one count of misconduct involving weapons in the third degree (felon in possession of a concealable firearm).
Kosbruk contends that one of his convictions for assault in the third degree should merge with his conviction for robbery in the second degree because the jury might have convicted him of both offenses based upon the same conduct. We conclude that the jury's verdicts demonstrated that the jury convicted Kosbruk based upon two separate incidents. Therefore, the two convictions do not merge.
Judge Smith sentenced Kosbruk to a composite sentence of twenty-two years with twelve years suspended. Kosbruk argues that this sentence is excessive. We conclude that the sentence is not clearly mistaken.
Factual and procedural background
The events giving rise to the charges occurred on the night of October 31 to November 1, 2007. One of the victims, David Coon, and the other victim, Michelle Nim, were home in their apartment. Coon was contacted by an acquaintance, Matt Peterson. Peterson appeared to be interested in buying marijuana from Coon. Peterson arrived at Coon's apartment with Kosbruk. Coon did not know Kosbruk. Coon let them into his apartment. Coon testified that, upon seeing some brass knuckles on his table, Kosbruk pulled out a gun, cocked it, pointed it towards Coon's head, and said that he wanted to take all his money, rape his girlfriend, and kill him. It is unclear how long Peterson and Kosbruk were in the apartment or what exactly happened. After a while, Coon gave Kosbruk two bags of marijuana, and Kosbruk and Peterson left.
A few minutes later, there was another knock at the door. Expecting someone else, Coon opened the door and saw Kosbruk, who pulled out a gun. Coon slammed the door and told Nim to call 911. While she was on the phone, Kosbruk began to kick the door down. He broke through the door. Coon and Nim wrestled the gun away from Kosbruk. Nim fired several shots out the window to scare Kosbruk away. Kosbruk left and Nim chased him out of the apartment with the gun. Coon and Nim then took the gun apart and put it under their mattress.
The police arrived and detained all four people at the scene: Peterson, Nim, Coon, and Kosbruk. Coon and Nim told the police where the gun was and consented to police entry into the apartment. The police found the gun as well as marijuana paraphernalia. Kosbruk was indicted for first-degree robbery, first-degree burglary, two counts of third-degree assault, and third-degree misconduct involving weapons. The State initially also charged Peterson with burglary and robbery. But Peterson entered into an agreement with the State to plead to a misdemeanor offense, criminal mischief. The agreement required Peterson to testify against Kosbruk.
At trial, Kosbruk argued that Coon, Nim, and Peterson were unreliable witnesses who had entered into agreements with the State to cover up their own wrongdoing. He asserted that, at the time of the alleged offense, Coon was facing serious criminal charges and that both Coon and Nim were dealing marijuana. He also pointed out Peterson's agreement with the State.
A jury found Kosbruk guilty of the lesser included offense of robbery in the second degree, burglary in the first degree, and two counts of assault in the third degree. In a bench trial, Judge Smith found Kosbruk guilty of the misconduct involving weapons count for being a felon in possession of a concealable firearm.
AS 11.41.510(a).
AS 11.46.300(a)(1).
AS 11.41.220(a)(1)(A).
AS 11.61.200(a)(1).
Why we conclude that Kosbruk's convictions for robbery and assault do not merge
Kosbruk argues that the jury may have convicted him of robbery and assault based upon the same conduct, the robbery of David Coon. He argues that convicting him of both offenses would violate the double jeopardy clause of the Alaska Constitution and therefore the convictions must merge. We reject Kosbruk's argument because an analysis of the jury's verdicts demonstrates that the robbery conviction and the assault conviction were not based upon the same conduct.
See Whitton v. State, 479 P.2d 302, 312 (Alaska 1970).
In its final argument to the jury, the State argued that the jury could convict Kosbruk of assault in the third degree for assaulting Coon with the gun either during the robbery or during the later incident when Kosbruk kicked in the door while brandishing a gun. But the jury's actual verdicts clearly demonstrate that the jury convicted Kosbruk for assaulting Coon in the later incident when Kosbruk kicked in the door and entered with the firearm.
Our analysis of the jury's verdicts requires us to discuss the elements of the offenses of robbery in the second degree, robbery in the first degree, and assault in the third degree. A person commits robbery in the second degree if, "in the course of taking or attempting to take property from the immediate presence and control of another, [he] uses or threatens the immediate use of force upon any person with the intent to prevent or overcome resistance to the taking . . . or the retention of the property." First-degree robbery is an aggravated form of second-degree robbery, where the defendant or an accomplice "is armed with a deadly weapon or represents by words or other conduct that either that person or another participant is so armed." A person commits assault in the third degree if the person "recklessly places another person in fear of imminent serious physical injury by means of a dangerous instrument."
AS 11.41.510(a)(1).
AS 11.41.500(a)(1).
AS 11.41.220(a)(1)(A).
Kosbruk was charged with first-degree robbery, that is, armed robbery. But the jury found Kosbruk not guilty of that charge and instead found him guilty of second-degree robbery, that is, unarmed robbery. Under the court's instructions, the jury had to unanimously agree to the not-guilty verdict before considering the lesser included charge of robbery in the second degree. In order to find Kosbruk not guilty of robbery in the first degree, the jury had to have had a reasonable doubt that Kosbruk carried a firearm when he committed the robbery. It therefore would have been inconsistent with the jury's verdict acquitting Kosbruk of robbery in the first degree and convicting him of robbery in the second degree for the jury to have convicted Kosbruk of assault in the third degree based upon the robbery. The jury must have convicted Kosbruk of assault in the third degree for assaulting Coon during the later incident when Kosbruk kicked in the door and threatened Coon and Nim with a firearm. Therefore, it is clear from the jury's verdicts that they did not convict Kosbruk of assault in the third degree based upon the same conduct for which they convicted him of robbery in the second degree. Kosbruk's sentence was not clearly mistaken
Kosbruk was twenty years old at the time of his current offenses. In 2006, he was convicted of two felony offenses, vehicle theft in the first degree and sexual abuse of a minor in the second degree. He was also convicted of the misdemeanor offenses of misconduct involving weapons in the fourth degree and contributing to the delinquency of a minor. He was released to parole and probation supervision on August 7, 2007. He was arrested on his current offenses on November 1, 2007.
Kosbruk was subject to presumptive sentencing as a third felony offender. He was also subject to an aggravating factor: that he was on probation or parole on another felony conviction at the time of his present offense.
AS 12.55.155(c)(20).
As a third felony offender, Kosbruk was subject to presumptive ranges as follows: six to ten years for robbery in the second degree, six to ten years for burglary in the first degree, three to five years for the two counts of assault in the third degree, and three to five years for misconduct involving a weapon in the third degree.
AS 11.41.510(b); AS 12.55.125(d)(4).
AS 11.46.300(b); AS 12.55.125(d)(4).
AS 11.41.220(e) (former AS 11.41.220(d)); AS 12.55.125(e)(3).
AS 11.61.200(i); AS 12.55.125(e)(3).
Judge Smith concluded that, because Kosbruk was young, he had to give weight to Kosbruk's prospects for rehabilitation. But he also considered the fact that Kosbruk had two prior felony convictions, that he was on probation supervision at the time of his current offenses, and that his current offenses were extremely dangerous and placed several people at risk. He concluded that he needed to emphasize isolating Kosbruk from society. He reasoned that the best way to do this was to impose a substantial amount of suspended incarceration. He imposed a sentence of ten years of imprisonment, which he recognized was at the top of the presumptive sentencing range for Kosbruk's most serious offenses. And he imposed an additional twelve years of suspended time, concluding that this substantial amount of suspended time was necessary to protect the public.
Kosbruk first contends that the sentence that Judge Smith imposed violates the rule announced by us in Farmer v. State. He argues that Judge Smith violated Farmer because he did not provide a good reason for imposing such a lengthy suspended term of incarceration.
746 P.2d 1300 (Alaska App. 1987).
Farmer provides that a judge must provide a "good reason" before sentencing a first felony offender to a composite sentence that is greater than the Austin limit for the defendant's most serious offense. Because Kosbruk was not a first felony offender, it appears that the Farmer rule does not apply to his sentencing. It is also questionable whether the Farmer rule applies to suspended incarceration, or at all to post-2005 sentences.
Smith v. State, 187 P.3d 511, 528 (Alaska App. 2008); Austin v. State, 627 P.2d 657, 657-58 (Alaska App. 1981) (providing that a first felony offender should normally receive a sentence that is below the presumptive term for second and subsequent offenders).
Smith, 187 P.3d at 528.
Farmer, 746 P.2d at 1302; Wood v. State, Alaska App. Memorandum Opinion Judgment No. 4881 (June 16, 2004), 2004 WL 1336263 at *5.
Sherman v. State, Alaska App. Memorandum Opinion Judgment No. 5177 (Feb. 21, 2007), 2007 WL 518627 at *2.
But the biggest problem Kosbruk faces is that even if the Farmer rule applies, Judge Smith provided a number of good reasons for imposing a substantial amount of suspended time. Besides emphasizing Kosbruk's prior criminal record, the fact that he reoffended shortly after being released on parole, and the seriousness of his offenses, Judge Smith considered Kosbruk's youth in evaluating his prospects for rehabilitation. Judge Smith concluded that it was necessary to impose a substantial sentence in order to protect the public. But he concluded that, rather than isolating Kosbruk for any longer than was necessary, he would attempt to protect the public by imposing a substantial suspended term of imprisonment. Judge Smith concluded that it was necessary, for protection of the public, to impose a composite sentence of ten years of incarceration followed by another twelve years of suspended incarceration. In making this finding, Judge Smith was complying with the Neal-Mutschler sentencing guideline:
[W]hen a defendant is being sentenced for two or more crimes, the defendant's composite sentence of imprisonment may not exceed the maximum sentence of imprisonment for the defendant's single most serious offense unless the sentencing judge affirmatively finds that a longer term of imprisonment is necessary to protect the public.
Phelps v. State, 236 P.3d 381, 382 (Alaska App. 2010) (explaining the rule announced in Neal v. State, 628 P.2d 19, 21 (Alaska 1981) and expanding the rule to allow other justifications for imposing a more severe sentence).
Therefore, even if the Farmer rule applied to Kosbruk's sentence, Judge Smith complied with it by providing good reasons for imposing a substantial term of suspended incarceration.
Kosbruk next argues that Judge Smith erred by imposing the maximum term of imprisonment for his most serious offense without making a "worst offender" finding. Under Alaska law, a maximum sentence is generally not appropriate unless the defendant is a "worst offender."
Hintz v. State, 627 P.2d 207, 210 (Alaska 1981); Nelson v. State, 874 P.2d 298, 310 (Alaska App. 1994).
Robbery in the second degree and burglary in the first degree are class B felonies. The maximum sentence for a class B felony is ten years ofimprisonment. Judge Smith imposed ten years with four suspended for each of these convictions. Neither is a maximum sentence. Assault in the third degree and misconduct involving weapons in the third degree are class C felonies. The maximum sentence for a class C felony is five years of imprisonment. Judge Smith imposed five years with three years suspended on each of these convictions. Judge Smith did not impose any sentence that was a maximum sentence, and he was therefore not required to find that Kosbruk was a "worst offender."
AS 12.55.125(d).
We conclude that the record supports the sentence that Judge Smith imposed. The sentence is therefore not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Kosbruk and the State point out that probation condition number three contains an obvious typographical error. Special condition of probation number three provides that Kosbruk "shall actively participate in and successfully complete an approved substance abuse program if recommended by the evaluation, which may include a residential treatment program of up to 120 months." It is apparent from the record that Judge Smith intended to adopt the recommendation in the presentence report which suggested "a residential treatment program of up to 12 months." On remand, the court should correct the written judgment. Conclusion
The judgment of the superior court is AFFIRMED. On REMAND, the court shall correct the written judgment.
I write separately to emphasize and clarify the underlying rationale of our decision.
The State alleged that Jeremy Kosbruk assaulted David Coon in two separate incidents. The first of these incidents was when Kosbruk and a companion, Matt Peterson, came to Coon's residence for the ostensible purpose of purchasing marijuana. According to Coon, the drug purchase turned into a robbery when Kosbruk drew a pistol, pointed it at Coon's head, and threatened to kill him. This confrontation ended when Coon gave two bags of marijuana to Kosbruk.
The second incident occurred just a few minutes later, when Kosbruk returned to Coon's residence. During this second incident, Kosbruk forced his way into the residence by kicking down the door, gun in hand. Coon and his girlfriend Michelle Nim were able to wrest the weapon from Kosbruk and gain control of the situation. The police arrived a few minutes later, and Coon and Nim showed the police where the gun was.
Based on the first incident, the State charged Kosbruk with first-degree robbery — that is, armed robbery. (As defined in AS 11.41.500(a), a robbery is of the first degree if any participant carries a deadly weapon or represents that they are so armed.)
Based on the second incident, the State charged Kosbruk with first-degree burglary ( i.e., breaking into a residence with intent to commit a crime).
The State also charged Kosbruk with two counts of third-degree assault under AS 11.41.220(a)(1)(A) — recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument. One of these counts was based on Kosbruk's act of threatening Coon with a firearm, and the other count was based on Kosbruk's act of threatening Nim with a firearm.
It was clear, from the evidence presented at trial, that Kosbruk's act of threatening Nim with a firearm occurred during the second incident. But the evidence conceivably supported the conclusion that Kosbruk threatened Coon with a firearm during both the first incident and the second incident. This raised a potential double jeopardy problem.
Under the State's view of what transpired during the first incident, a charge of third-degree assault for placing Coon in fear of imminent serious physical injury by means of a dangerous instrument was essentially a lesser offense included within the charge of first-degree robbery ( i.e., armed robbery). The State's theory of the robbery was that Kosbruk leveled the firearm at Coon's head and threatened to kill him — prompting Coon to relinquish the marijuana. It would have violated the rule announced in Whitton v. State, 479 P.2d 302 (Alaska 1970), if Kosbruk had been convicted of both armed robbery and third-degree assault based on the same act of threatening Coon with a firearm.
On the other hand, there would be no double jeopardy problem if Kosbruk was convicted of first-degree robbery based on his conduct during the first incident and separately convicted of third-degree assault based on his later act of threatening Coon with a firearm during the second incident. In its brief to this Court, the State claims that this was, indeed, its theory of prosecution. But when the prosecutor delivered her summation to the jury, she suggested that the jurors could convict Kosbruk of third-degree assault either for Kosbruk's act of threatening Coon with a firearm during the first incident or Kosbruk's later act of threatening Coon with a firearm during the second incident.
This problem resolved itself when the jury found Kosbruk not guilty of first-degree robbery and instead convicted him of the lesser offense of second-degree robbery — i.e., unarmed robbery. Under the jury instructions, the jurors could not return any verdict on the charge of second-degree robbery until they reached unanimous agreement that Kosbruk was not guilty of the greater offense of first-degree robbery. In other words, the jury's guilty verdict on the offense of second-degree robbery necessarily rested on the jury's conclusion that the State failed to prove that Kosbruk (or his companion Peterson) carried a firearm during the first incident. This being so, the jury could only have convicted Kosbruk of third-degree assault based on his act of threatening Coon with a firearm during the second incident.
It may seem odd that the jury would reject the State's charge of armed robbery based on the first incident, and yet convict Kosbruk of two counts of armed assault based on the second incident. But none of the people involved in this incident were model citizens. The jury might reasonably have questioned Coon's assertion that Kosbruk threatened him with a firearm during the first incident. The situation was different, however, with respect to the second incident: the police arrived on the scene within minutes, and they retrieved the gun and took possession of it — thus providing independent corroboration of Coon's and Nim's assertions that Kosbruk was armed, and that he threatened them with the weapon.
Because the jury's verdicts clearly demonstrate that Kosbruk's conviction for robbing Coon and Kosbruk's conviction for assaulting Coon with a handgun were based on two separate incidents, the entry of these two convictions poses no double jeopardy problem.