Opinion
Court of Appeals No. A-9050.
January 10, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-02-135 Cr, No. 5160.
Averil Lerman, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Sharon L. Marshall, Assistant District Attorney, and Leonard M. Linton Jr., District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION
Kenneth E. Padgett was convicted of first-degree murder and tampering with evidence for killing his mother by suffocating her, then hiding his mother's body by sealing it inside the breakfast cabinet of her trailer home. (Padgett then rented the trailer, with his mother's body entombed inside it, to a single mother who needed a home for herself and her children; Padgett set the rent at $500 per month.)
AS 11.41.100(a)(1)(A) and AS 11.56.610(a)(1), respectively.
Padgett denied his guilt until after his trial. In his statement to the pre-sentence investigator, Padgett admitted that he had killed his mother, but he declared that he had no remorse about his action "because she's in a better place, and I did her a favor."
At the sentencing hearing, Padgett simply declared, "I did in fact lay my mother to rest." Padgett stated that he had given himself and his mother to "Lucifer, Satan, . . . the Prince of Darkness". Padgett also announced that he was "not going away". He asserted that, when he died, "[this] world, . . . it's mine; you're mine."
Superior Court Judge Larry D. Card sentenced Padgett to the maximum sentence for first-degree murder: 99 years' imprisonment. Under AS 33.16.100(d), Padgett ordinarily would have been eligible for discretionary parole release after serving one-third (33 years) of this sentence. However, Judge Card exercised his authority under AS 12.55.115 and ordered that Padgett not be eligible for discretionary parole until he had served two-thirds ( i.e., 66 years) of the sentence.
See AS 12.55.125(a) (prescribing a maximum sentence of 99 years for first-degree murder).
(Padgett received a concurrent term of 3 years' imprisonment for the crime of evidence tampering. That sentence is not at issue in this appeal.)
Padgett does not challenge his 99-year sentence for first-degree murder. However, Padgett contends that Judge Card was clearly mistaken when he ordered that Padgett not be eligible for discretionary parole until he had served 66 years of this sentence.
We addressed a sentencing judge's authority to order parole restrictions in Stern v. State, 827 P.2d 442 (Alaska App. 1992). In Stern, we declared that "[w]hen a sentencing judge restricts [a defendant's] parole eligibility, the judge must specifically address the issue of parole restriction, setting forth with particularity his or her reasons for concluding that the parole eligibility prescribed by [Title 33] is insufficient to protect the public and insure the defendant's reformation." 827 P.2d at 450.
We noted in Stern that when a defendant receives a lengthy sentence, "Alaska law presumes that questions of discretionary release are better left to the Parole Board, since the Board evaluates the advisability of parole release in light of the defendant's tested response to Department of Corrections rehabilitative measures." Id. However, we also acknowledged that this presumption is rebuttable, and we stated that a parole restriction will be justified by "a finding that the defendant cannot be rehabilitated within the prescribed parole eligibility period". Id. at 453.
At Padgett's sentencing hearing, Judge Card found that Padgett was guilty, not just of intentional killing, but of premeditated killing — a circumstance which, as Judge Card correctly noted, places Padgett's crime among the worst first-degree murders under Alaska law.
See Nelson v. State, 874 P.2d 298, 310 (Alaska App. 1994); George v. State, 836 P.2d 960, 963 (Alaska App. 1992); Riley v. State, 720 P.2d 951, 952 n. 1 (Alaska App. 1986).
In his sentencing remarks, Judge Card detailed Padgett's criminal history. Padgett has been in trouble with the law repeatedly since he was seventeen years old — that is, for over twenty years. Although Padgett's past crimes were mostly property offenses and drunk driving offenses, these crimes included several felonies, and Padgett had spent a substantial amount of time in prison.
Judge Card noted that Padgett had a record of violating probation and parole, and that even though Padgett appeared to have a serious substance abuse problem, he had refused treatment.
Judge Card concluded that Padgett was "a career criminal", and that "criminal activity is . . . engrained in his being". The judge further concluded that Padgett was "dangerous to society" and that Padgett presented a "likelihood of repetitive criminality".
Given Padgett's prior criminal record, his repeated failures under probation and parole supervision, his untreated substance abuse problem, and the aggravated nature of his current offense, we conclude that Judge Card was not clearly mistaken when he restricted Padgett's eligibility for discretionary parole.
The sentencing decision of the superior court is AFFIRMED.