PETERSON v. STATE, A-9657 (Alaska App. 6-27-2007)

ARTHUR PETERSON, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9657.Court of Appeals of Alaska.
June 27, 2007.

NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge., Trial Court No. 4BE-01-381 CR.

Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.

Dwayne W. McConnell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Arthur Peterson was convicted, based upon his plea of nolo contendere, of manslaughter.[fn1] Superior Court Judge Leonard R. Devaney sentenced Peterson to 20 years with 3 years suspended, and placed Peterson on probation for a period of 10 yearsPage 2
following his release from custody. Peterson appeals, arguing that his sentence is excessive. We affirm.

Factual background
On April 13, 2001, Natalia Peterson and her boyfriend went to the residence in Chuathbaluk where her mother, Darlene Peterson, lived with Arthur Peterson. Natalia and her boyfriend also lived there. They found that the exterior door to the residence was locked with a padlock. They located Arthur Peterson and asked him for the key to the padlock. They also asked him where Darlene Peterson was. Arthur Peterson replied that he did not know where either the key or Darlene were located. Natalia and her boyfriend returned to the residence and removed the padlock. When they entered the residence, they found Darlene Peterson’s body covered with a blanket and Arthur Peterson’s imitation leather jacket.

When the police were summoned, they discovered that Darlene Peterson had been shot once in the forehead between her eyes. They learned that on the previous night, Darlene Peterson and Arthur Peterson had been together. The police also learned that on the same day as the homicide, Arthur Peterson sold a handgun to another man. The handgun was later discovered to have blood splatter on it. Police later found blood on Peterson’s clothing as well.

A grand jury indicted Arthur Peterson for murder in the first degree,[fn2] murder in the second degree,[fn3] and manslaughter.[fn4]
Peterson pleaded no contest to manslaughter. As part of the plea agreement, Peterson agreed not to contest several aggravating factors:Page 3
that he employed a dangerous instrument in furtherance of the offense; that the victim of the offense was particularly vulnerable; that he had a prior criminal history of conduct involving aggravated or repeated instances of assaultive behavior; that the conduct constituting the offense was among the most serious conduct included in the definition of the offense; and that the offense was a felony assault committed against a member of the same social unit.[fn5]

Manslaughter is a class A felony.[fn6] Under the pre-2005 sentencing provisions, a first-felony offender convicted of a class A felony faced a maximum sentence of 20 years of imprisonment and a presumptive term of 5 years of imprisonment.[fn7]

In sentencing Peterson, Judge Devaney first considered Peterson’s criminal history. He observed that Peterson had assaulted Darlene Peterson just a few months before killing her and was still on probation for that assault. He also noted that Peterson had been convicted of assaulting Darlene Peterson in 1999. He then considered Peterson’s extensive prior record of misdemeanor offenses. The pre-sentence report summarizes Peterson’s criminal history as follows: “The defendant has a long criminal history which encompasses crimes such as assault and include[s] alcohol-related offenses which date back to 1983. This history includes 12 convictions in addition to one deferred prosecution.” Judge Devaney found that Peterson’s criminal history showed that Peterson “clearly [had] a problem with the criminal justice system, pretty regular, almost every year.” He concluded that Peterson’s prior criminal history showed “an undercurrent of problems with alcohol and violence.”Page 4

Judge Devaney considered Peterson’s extensive prior criminal record and the seriousness of his current offense and found that he needed to confine Peterson to prevent him from committing further harm. He concluded that Peterson had committed one of the most serious offenses defined in the manslaughter statute, and that Peterson was a “worst offender” based upon the manslaughter offense and his prior record. He concluded that, given this finding, he was justified in imposing the maximum 20-year sentence. But he stated that there was some “small hope” for Peterson’s rehabilitation, and consequently he suspended 3 years of imprisonment.

Why we conclude that Peterson was not prejudiced by the “worst offender”finding, and that Peterson’s sentence was not clearly mistaken

Peterson first argues that Judge Devaney erred in finding that he was a “worst offender.” In order to impose a maximum sentence, a sentencing court must find that the defendant is a “worst offender.”[fn8] But Judge Devaney did not impose a maximum sentence: he suspended 3 years of imprisonment.[fn9] Although Judge Devaney’s “worst offender” finding illustrates how he regarded Peterson’s offense and criminal history, he was not required to make the finding to justify Peterson’s sentence. Therefore, even if the finding was error, Peterson was not prejudiced.

Peterson next argues that his sentence is excessive. But the record in this case shows that Peterson has an extensive misdemeanor record of alcohol-related offenses. Two of these offenses involved assaults against the victim in this case, Darlene Peterson. And, at the time of this homicide, Arthur Peterson was on probation for assaulting Darlene Peterson. The evidence in this case shows that Arthur Peterson shot Darlene PetersonPage 5
between the eyes. Judge Devaney could properly conclude that this was a particularly serious manslaughter offense and that it was necessary to isolate Peterson for an extensive period of time in order to protect the public. W e conclude that the sentence was not clearly mistaken.[fn10]

AFFIRMED.Page 6

[fn1] AS 11.41.120(a)(1).

[fn2] AS 11.41.100(a)(1)(A).

[fn3] AS 11.41.110(a)(1) or (a)(2).

[fn4] AS 11.41.120(a)(1).

[fn5] AS 12.55.155(c)(4); (5); (8); (10); and 18(a), respectively.

[fn6] Former AS 11.41.120(b) (pre-2006 version).

[fn7] Former AS 12.55.125(c)(1) (2004).

[fn8] State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).

[fn9] See W ertz v. State, 611 P.2d 8, 10 (Alaska 1980) (citingFerreira v. State, 602 P.2d 803, 806 (Alaska 1979); Spearman v.State, 543 P.2d 202, 205 (Alaska 1975)).

[fn10] McClain v. State, 519 P.2d 813-14 (Alaska 1974).

MANNHEIMER, Judge, concurring.

I write separately to respond to Peterson’s argument that it was error for Judge Devaney to rely on the fact that Peterson’s manslaughter was among the most serious within the definition of the offense — aggravator AS 12.55.155(c)(10) — when the judge assessed whether Peterson was a “worst offender” for sentencing purposes.

Peterson argues that Judge Devaney engaged in improper “double counting” when the judge relied on Peterson’s concession of aggravator (c)(10) as part of the basis for his finding that Peterson was a “worst offender”. Peterson’s argument is based on a misunderstanding of the relationship between aggravator (c)(10) and a finding of “worst offender” as defined in State v. Wortham, 537 P.2d 1117 (Alaska 1975).

Under Alaska law, a “worst offender” finding can be based either on the facts surrounding the defendant’s current offense(s), or the circumstances of the defendant’s criminal history, or both.Wortham, 537 P.2d at 1120; Howell v. State, 115 P.3d 587, 593 (Alaska App. 2005); Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990). Thus, the issue of whether a defendant’s conduct in the case under consideration constitutes conduct “among the most serious . . . included in the definition of the offense”, AS 12.55.155(c)(10), is just one factor to be considered when assessing whether a defendant is a “worst offender” for sentencing purposes.

Of course, a finding of conduct “among the most serious” lends support to a “worst offender” categorization. See Hightower v. State,842 P.2d 159, 161 (Alaska App. 1992); Newcomb v. State, 800 P.2d 935, 944 (Alaska App. 1990). And, in some instances, the extreme seriousness of the defendant’s current offense can, by itself, justify categorizing the defendant as a “worst offender”. See Brown v. State, 601 P.2d 221, 235 n. 38 (Alaska 1979); Wilson v. State, 582 P.2d 154, 156-57 (Alaska 1978); Hoover v. State, 641 P.2d 1263, 1264 (Alaska App. 1982).Page 7

But a finding of “conduct among the most serious” is not per se
conclusive on the issue of whether the defendant should be categorized as a “worst offender”. See Pruett v. State, 742 P.2d 257, 268 n. 11 (Alaska App. 1987). A finding of “worst offender” is ultimately a conclusion that is broader than aggravator (c)(10) — a conclusion regarding the defendant’s prospects for rehabilitation and danger of recidivism. See, for example, what this Court said on this subject inMonroe v. State, 752 P.2d 1017, 1021 (Alaska App. 1988): “[T]he record . . . [goes] beyond establishing that Monroe’s conduct was among the most serious within the class of offense to which he pled. His conduct approximates the showing necessary to label him a worst offender for whom a m aximum sentence would have been appropriate.”

By the same token, a defendant may be found a “worst offender” even though the defendant’s conduct in committing the present offense is not among the most serious within the definition of the crime. See Napayonakv. State, 793 P.2d 1059, 1062 (Alaska App. 1990), where this Court upheld a “worst offender” finding even though the sentencing judge expressly rejected the “most serious conduct” aggravator and found the defendant’s offenses to be “unremark able”. See also Powell v.State, 88 P.3d 532, 536-37 (Alaska App. 2004), and Coles v. State,64 P.3d 149, 152 (Alaska App. 2003) — two other cases in which we upheld “worst offender” findings even though the State did not prove aggravator (c)(10).

During Judge Devaney’s sentencing remarks in this case, he expressly acknowledged this principle — i.e., that Peterson’s concession of aggravator (c)(10) did not compel a finding of “worst offender”. Nevertheless, Judge Devaney concluded that Peterson was a worst offender, based on the factors that Peterson’s act of manslaughter was among the most serious, that Peterson was on probation (stemming from a prior assault on the same victim) at the time of the homicide, and that Peterson had only recentlyPage 8
been in court when he committed the homicide. Judge Devaney’s method of analysis was legally proper.Page 1