Opinion
Court of Appeals No. A-7428.
November 10, 2004.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Trial Court No. 3AN-97-9388 Cr.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
W.H. Hawley Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
On January 9, 1997, John Kevin Phillips was released from prison on felony parole. The next day, Phillips committed an armed robbery in Anchorage, during which he assaulted two victims. Phillips then traveled to Palmer, where he stole a taxicab and drove east on the Glenn Highway. A state trooper spotted the cab and attempted to apprehend Phillips. To escape, Phillips assaulted and killed the trooper.
In Phillips v. State, 70 P.3d 1128 (Alaska App. 2003), we affirmed Phillips's convictions for first-degree robbery (two counts), second-degree assault (two counts, for the armed assaults on the two victims of the robbery), first-degree vehicle theft, second-degree escape, and second-degree murder. However, we remanded Phillips's case to the superior court for reconsideration of Phillips's sentence, because it appeared that the sentencing judge, Superior Court Judge Larry D. Card, had misinterpreted one of our earlier decisions concerning sentencing for second-degree murder: Gustafson v. State, 854 P.2d 751 (Alaska App. 1993).
Phillips, 70 P.3d at 1145.
Id. at 1144-45.
On reconsideration, Judge Card disavowed his earlier interpretation of our decision in Gustafson, but he nevertheless re-imposed the same sentences he had initially imposed on Phillips: 99 years to serve for the second-degree murder, a consecutive 25 years to serve for the two counts of first-degree robbery, a consecutive 14 years to serve for the two counts of second-degree assault, a consecutive 3 years to serve for the escape, and a consecutive 1 year to serve for the vehicle theft.
All told, Judge Card sentenced Phillips to a composite term of 142 years to serve. When Judge Card imposed this sentence, he declared that his intention was "to restrict Mr. Phillips from being in . . . society for [the rest of] his natural life".
In this renewed appeal, Phillips contends that his 99-year sentence for second-degree murder is clearly mistaken. This sentence is the maximum term of imprisonment that may be imposed for second-degree murder.
AS 12.55.125(b).
Phillips points out that in Page v. State, 657 P.2d 850 (Alaska App. 1985), this Court established a benchmark sentencing range of 20 to 30 years to serve for second-degree murder. However, as we noted in our first decision in Phillips's case, the Page benchmark range demarcates the sentencing range for a typical first felony offender convicted of a typical second-degree murder. Phillips was not a typical first felony offender, nor did he commit a typical second-degree murder.
Page, 657 P.2d at 855.
Phillips, 70 P.3d at 1143, citing Brown v. State, 4 P.3d 961, 964 (Alaska App. 2000), and Sam v. State, 842 P.2d 596, 603 (Alaska App. 1992).
Before the series of felonies involved in the present case, Phillips already had five felony convictions: second-degree burglary (in the State of Washington) in 1983, second-degree theft and second-degree burglary in 1985, second-degree escape in 1987, and attempted second-degree escape in 1993. In addition, Phillips had over a dozen misdemeanor convictions, including four convictions for misdemeanor assault. Moreover, Phillips's probation and his parole were revoked some half-dozen times between 1989 and 1992 (when he began serving the term of imprisonment that immediately preceded his parole release in January 1997 and his commission of the various felonies involved in the present case).
Turning to the nature of the second-degree murder, Judge Card concluded that the offense was not typical, but rather was aggravated for several reasons. Phillips had been released on felony parole less than 48 hours before the commission of the murder. Phillips had a history of repeated assaultive behavior. And the murder involved assaultive conduct directed against a police officer who was engaged in the performance of his duties.
See AS 12.55.155(c)(20).
See AS 12.55.155(c)(8), (15).
See AS 12.55.155(c)(13).
These aspects of Phillips's case are drawn from the aggravating factors listed in AS 12.55.155(c) — the factors that authorize a sentencing judge to exceed the legislatively established presumptive term in cases governed by presumptive sentencing. However, sentencing for second-degree murder is not governed by our presumptive sentencing laws. Thus, the aggravating factors and the mitigating factors listed in AS 12.55.155(c)-(d) do not play their normal legal role in a second-degree murder sentencing. Rather, they serve only as points of reference for sentencing judges. We explained this point of law in Allen v. State:
The normal role of aggravators and mitigators is to expand the sentencing judge's legal authority in cases governed by presumptive sentencing. Proof of aggravators authorizes the judge to impose a sentence above the presumptive term, while proof of mitigators authorizes the judge to impose a sentence below the presumptive term.
But second-degree murder is not governed by presumptive sentencing. This means that, even without proof of aggravators or mitigators, a sentencing judge is authorized to impose any sentence within the 10- to 99-year range established by the legislature for this offense. See AS 12.55.125(b). True, our decision in Page restricted sentencing judges' discretion by establishing a 20- to 30-year benchmark range. Nevertheless, a sentencing judge may impose a sentence outside this range for any good reason — not only upon proof of the aggravators and mitigators listed in AS 12.55.155(c)-(d).
It is true that in second-degree (and first-degree) murder sentencings, the parties often frame their arguments in terms of these statutory aggravating and mitigating factors. We have recognized and approved the practice of "[using] these factors as points of reference . . . when [evaluating] how [a specific] offense should be viewed in comparison to a typical . . . murder". Nevertheless, a sentencing judge is not limited to the statutory aggravating and mitigating factors when deciding whether the circumstances of the defendant's case call for a sentence outside the Page benchmark range.
Allen, 51 P.3d 949, 960 (Alaska App. 2002) (footnotes omitted).
Based both on Phillips's criminal record and on the aggravated nature of the murder, Judge Card concluded that Phillips was a "worst offender" for sentencing purposes (as that term is defined in Alaska sentencing cases). This finding is supported by the record. And, under Alaska sentencing law, this finding authorized Judge Card to impose the 99-year maximum sentence for the offense of second-degree murder.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990) (defining the term "worst offender", and explaining that a "worst offender" finding can be based either on the circumstances surrounding the defendant's present offense, or on the defendant's criminal history, or both).
Powell v. State, 88 P.3d 532, 537 (Alaska App. 2004), citing Wortham, 537 P.2d at 1120, and Napayonak, 793 P.2d at 1062.
Phillips also argues that even if a 99-year sentence for second-degree murder is justified, his composite sentence for all of his crimes should not have exceeded this 99-year term of imprisonment.
Under the rule announced by our supreme court in Neal v. State and Mutschler v. State, a defendant convicted of two or more offenses should not receive a composite sentence exceeding the maximum sentence for the defendant's most serious offense unless the sentencing judge makes a formal finding that confinement for this composite term is necessary to protect the public. At both Phillips's initial sentencing hearing and at the renewed sentencing hearing on remand, Judge Card recognized that Phillips's sentence was governed by the Neal-Mutschler rule, and he expressly found that a composite sentence exceeding 99 years to serve was needed to protect the public.
Neal v. State, 628 P.2d 19, 21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977).
Judge Card declared that Phillips's criminal history manifested "an ingrained, compulsive criminal pattern of behavior". The judge noted that Phillips had had numerous opportunities to deal with his alcoholism and his proclivity for violence, but these efforts toward rehabilitation had failed. Based on Phillips's continuing string of offenses and probation and parole violations over the course of nearly two decades, Judge Card concluded that Phillips was dangerous, that he was not capable of being rehabilitated, and that he could not be deterred.
These findings are supported by the record. We note that Phillips engaged in a series of violent offenses within 48 hours following his release from prison on felony parole. Moreover, the evidence shows that the initial crimes in this series — the armed robbery and concomitant assaults in Anchorage — were premeditated.
See our prior decision: Phillips, 70 P.3d at 1131.
We therefore conclude that Judge Card was not clearly mistaken when he imposed a composite sentence exceeding the 99-year maximum penalty for second-degree murder (Phillips's single most serious offense).
The sentencing decision of the superior court is AFFIRMED.