Blair M. Christensen,
Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for
John J. Novak,
Assistant Attorney General, Criminal Division Central Office, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Keen Smith appeals the sentence he received for the crime of first-degree assault (reckless infliction of serious physical injury by means of a dangerous instrument). Smith raises three primary claims in this appeal, all having to do with proposed mitigating factors.
Smith asserts that the superior court should have found his offense to be mitigated under AS 12.55.155(d)(3), the mitigator that applies to cases where the defendant's conduct was significantly affected by " some degree of duress, coercion, threat, or compulsion" .
Smith also asserts that the superior court should have found his offense to be mitigated by the non-statutory mitigating factor that this Court first recognized in Smith v. State, 711 P.2d 561, 571-72 (Alaska App.1985)-the mitigating factor of extraordinary potential for rehabilitation.
Finally, Smith argues that this Court should recognize a new non-statutory mitigator-a mitigator that Smith calls " developmental immaturity" . This proposed mitigator would apply to adolescent defendants whose criminal behavior can be attributed to the fact that adolescents' brains are not fully developed, and that they therefore lack the degree of understanding and impulse control that an adult would have.
For the reasons explained in this opinion, we conclude that the superior court correctly rejected proposed mitigator (d)(3). However, with respect to the non-statutory mitigator of extraordinary potential for rehabilitation, and with respect to the proposed new non-statutory mitigator of developmental immaturity, we conclude that the superior court's rulings are inadequate to allow meaningful appellate review. We therefore remand Smith's case to the superior court for further consideration of these non-statutory mitigators.
Smith entered a negotiated plea in this case, and the plea agreement included a provision that the case would be submitted to the sentencing court on stipulated facts. However, the parties' stipulation did not specify a particular version of the facts as being true. Rather, the parties merely stipulated that various participants and witnesses had given the police different (and sometimes irreconcilable) versions of the incident when they were interviewed during the investigation of this case. Under the terms of the parties' stipulation, these various accounts of the incident were submitted to the superior court, and the superior court was then left to sort out what had really happened.
Here is a summary of the information presented to the superior court pursuant to the parties' stipulation:
At approximately 12:30 a.m. on the night of November 1-2, 2007, Byron Rogers and Allen Odomin (two roommates who worked together at a restaurant) left work and stopped at Party Time Liquor to purchase alcoholic beverages. At the liquor store, they ran into Jonathan Odomin (Allen's brother) and Jonathan's girlfriend, Amanda Walker. Ms. Walker is the sister of Rigoberto Walker, the shooting victim in this case.
After running into each other at the liquor store, Byron Rogers, Allen Odomin, Jonathan Odomin, and Amanda Walker all went back to the apartment complex where they lived. (Rogers and Allen Odomin lived in the same complex as Jonathan and Amanda, but on a different floor.) Rigoberto Walker was, at this time, on the run from the juvenile justice system; he had taken refuge with his sister and Jonathan Odomin.
About an hour later, Jonathan Odomin knocked on the window of the apartment shared by Byron Rogers and Allen Odomin. Jonathan was bleeding from a split lip, and he reported that he had just been beaten up in the front yard of the apartment complex. Jonathan then ran upstairs to his own apartment, to tell Amanda and Rigoberto Walker what had happened.
A little later, Jonathan Odomin, his brother Allen, and Byron Rogers saw Rigoberto Walker standing across the street from the apartment complex, arguing with three juvenile males. These young men were later identified as J.T., age 14, Daniel Byrd, age 16, and the defendant in this case, Keen Smith, age 16.
Jonathan thought that the three juveniles who were arguing with Walker were the same people who beat him up. This, however, turned out to be wrong: later investigation revealed that Jonathan Odomin was beaten up by three different (and still unidentified) young men who just happened to be passing by the apartment complex. Keen Smith and his two companions did not commit this crime. However, Walker confronted Smith and his two companions under the mistaken belief that they were the ones who beat up Jonathan Odomin (his sister's boyfriend).
Smith and his companions truthfully denied that they were the ones who beat up Jonathan, but Jonathan insisted that they were his attackers, and Walker backed him up. Smith and his companions started to walk away, down an alley, but Walker (who apparently was intoxicated) followed the three young men and challenged them to fight. Within a few seconds, Smith pulled out a revolver and handed it to Daniel Byrd (one of his companions).
According to Byrd and J.T. (the third companion), Smith encouraged Byrd to shoot Walker. Smith, however, repeatedly denied this. According to Smith, he handed the gun to Byrd because Smith thought he was about to engage in a fist fight with Walker, and he did not wish to be carrying a loaded gun in his waistband when he did so. Smith later declared that he was taken by surprise when Byrd used the gun to shoot Walker.
In any event, whether or not Smith encouraged Byrd to shoot, it is clear that Walker himself was encouraging Byrd to shoot. In Walker's later statement to the police, he acknowledged that he told Byrd, " You can fire right now." J.T. confirmed that Walker told them, " Shoot me."
Moreover, according to the statements given by Byrd and Smith, Walker was actually taunting them to shoot. Smith told the police that Walker was saying, " I'll take all three of you at the same time. You[‘ re] all some bitches. You['re] all some bitches. Shoot me! Shoot me!" And Byrd told the police that Walker said to him, " Shoot me, shoot me! Hurry up, nigger. Don't be a bitch." (Walker, Bird, Smith, and J.T. all are black.)
After Walker taunted Byrd to shoot, Byrd closed his eyes and pulled the trigger-and Walker was wounded. Smith, Byrd, and J.T. then ran away and hid the gun.
Later, J.T. led the police to the place where they had thrown away the gun, and the police retrieved the weapon. (It was a .38 special.)
Both Smith and Byrd (who, as explained above, were 16 years old at the time) were indicted as adults for attempted murder, first-degree assault (because Walker was seriously wounded), and tampering with physical evidence (for throwing the revolver away).
Approximately six months later, Smith reached a plea agreement with the State. Under the terms of this agreement, Smith pleaded guilty (as an adult) to first-degree assault, with open sentencing within the applicable presumptive sentencing rules, and the other criminal charges were dismissed.
Superior Court Judge Patrick J. McKay ruled that Smith's sentencing was governed by AS 12.55.125(c)(2), the provision that governs first felony offenders convicted of class A felonies when the defendant either used a dangerous instrument or inflicted serious physical injury on the victim. Under this statute, Smith faced a presumptive range of 7 to 11 years' imprisonment.
Judge McKay rejected the State's proposed aggravators and also rejected Smith's proposed mitigators. The judge then imposed a sentence toward the lower end of the presumptive range: 10 years with 3 years suspended ( i.e., 7 years to serve).
Why we affirm the superior court's rejection of proposed mitigator (d)(3)
Before we discuss Smith's proposed non-statutory mitigating factors, we first address
the question of whether the superior court should have found mitigator (d)(3)-because, if the superior court should have found mitigator (d)(3), then the question of non-statutory mitigators might well be moot.
As we noted earlier, mitigator (d)(3) applies to cases where the defendant's criminal conduct was significantly affected by " some degree of duress, coercion, threat, or compulsion" . Smith argues that mitigator (d)(3) applies to his case because Walker provoked the assault. Here is the factual basis for Smith's claim, as set forth in his brief:
By all accounts, [Walker] was intoxicated and pick[ed] a fight with Smith and his two companions.... Byron Rogers told the police that [Walker] said [to him] that he was going to get the three [young men]. [Walker] kept trying to pick a fight with Smith and his companions[,] and [even though] they walked away, [Walker] followed them. [Walker] would not leave the three juveniles alone [,] and [he] insisted on fighting them ...