Tofelogo v. State

         Appeal from the Superior Court No. 3KO-14-688 CR, Third Judicial District, Kodiak, Stew W. Cole, Judge.

          Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Stephen B. Wallace, District Attorney, Kodiak, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. ^[*]

          OPINION

          MANNHEIMER, JUDGE.

         Teila V. Tofelogo appeals the sentence he received for criminally negligent homicide. This homicide stemmed from an incident at a treatment group home where Tofelogo and the victim, Dennis Fathke, were roommates.

         On the day in question, Tofelogo and Fathke were in their room, and Tofelogo was pretending to be a ninja. He was holding a long-bladed knife, and he was making martial arts moves. Fathke was lying on a bed behind Tofelogo, but Fathke got up from the bed just as Tofelogo executed a sudden pivot. The knife blade penetrated Fathke's side, inflicting a fatal wound.

         Tofelogo initially tried to staunch the flow of blood, but when Fathke moaned and fell to the floor, Tofelogo left the room to call 911. By the time police officers arrived, Fathke had no pulse; he was pronounced dead at the hospital about a half-hour later.

         Tofelogo was indicted for criminally negligent homicide, AS 11.41.130(a), and he ultimately pleaded guilty to this charge.

         As part of Tofelogo's plea agreement, he stipulated that aggravated AS 12.55.I55(c)(I8)(A) applied to his case. That is, Tofelogo conceded that, because Fathke was his roommate, the homicide was committed against "a member of the same social unit made up of those living together in the same dwelling as the defendant". Because Tofelogo conceded this aggravating factor, he faced a sentencing range of 1 to 10 years' imprisonment.^[1]

         The superior court sentenced Tofelogo to 6 years with 4 years suspended (i.e., 2 years to serve). In imposing this sentence, the judge declared that he was giving "some weight" to aggravator (c)(18)(A) - i.e., to the fact that Tofelogo and Fathke were roommates.

         In his sentencing remarks, the judge acknowledged that Tofelogo and Fathke did not have any family connection or emotional relationship-no inter-personal connection of the sort that typifies crimes of domestic violence. But the judge noted that aggravated (c)(l8)(A) is worded quite broadly - that the aggravated does not require proof of a familial or emotional relationship between the defendant and the victim, but rather extends to all cases where the defendant and the victim share the same dwelling. The judge therefore concluded that it was proper for him to rely on aggravator (c)(18)(A) when formulating the sentence in Tofelogo's case:

The Court: We all have a ... right to feel safe and secure in our own homes without someone who is living amongst us hurting us or killing us. And it doesn't have to necessarily be someone that we're related to, [even though] it appears that the focus [of] that aggravator... really was on acts of people [who are] family members or ... people who are ... in a boyfriend-girlfriend relationship.

         On appeal, Tofelogo argues that the facts of his case do not fit within the legislature's rationale for enacting aggravator (c)(l8)(A) - and that, for this reason, the sentencing judge should not have given this aggravator any weight.

         For the reasons explained in this opinion, we agree that the sentencing judge should have given no weight to aggravator (c)(l8)(A) in Tofelogo's case. We therefore direct the superior court to re-sentence Tofelogo.

         The superior court's rejection of Tofelogo's proposed mi tigator

         Before we reach the question of aggravator (c)(18)(A), we turn briefly to Tofelogo's other claim in this appeal - his contention that the superior court erred by rejecting a proposed mitigating factor.

         In advance of sentencing, Tofelogo's attorney proposed mitigator AS 12.55.155(d)(9)-that Tofelogo's conduct was "among the least serious" within the definition of criminally negligent homicide. The sentencing judge found that Tofelogo had failed to prove this mitigator by clear and convincing evidence.

         Although the judge commended Tofelogo for trying to save Fathke, and for honestly disclosing what had happened when he was interviewed by the police, the judge concluded (from the circumstances of the occurrence) that Tofelogo's actions were "close to really being reckless conduct" - in other words, close to constituting the more serious offense of manslaughter.^[2]

         We agree with the sentencing judge that the record fails to clearly establish that Tofelogo's conduct was among the least serious within the definition of criminally negligent homicide. We therefore uphold the sentencing judge's ruling on this issue.

         We now turn to the question of aggravated (c)(18)(A).

         An examination of aggravator (c)(18)(A) and the broader statutory category of "crimes involving domestic violence "

         AS 12.55.155(c) contains the statutory aggravating factors that apply to presumptive sentencing. Under subsection (c)(l8)(A) of this statute, a felony offense is aggravated for sentencing purposes if the offense is one of the "offenses against the person" defined in AS 11.41, and if the offense was "committed against a spouse, a former spouse, or a member of the social unit made up of those living together in the same dwelling as the defendant".

         The crimes covered by aggravates (c)(l8)(A) are a subset of the larger category of "crimes involving domestic violence" - the category of offenses ...