TEILA V. TOFELOGO, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court No. 3KO-14-688 CR, Third Judicial
District, Kodiak, Stew W. Cole, Judge.
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. [*]
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.
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
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
was indicted for criminally negligent homicide, AS
11.41.130(a), and he ultimately pleaded guilty to this
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.
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.
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.
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
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.
superior court's rejection of Tofelogo's proposed mi
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.
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
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
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.
turn to the question of aggravated (c)(18)(A).
examination of aggravator (c)(18)(A) and the broader
statutory category of "crimes involving domestic
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
crimes covered by aggravates (c)(l8)(A) are a subset of the
larger category of "crimes involving domestic
violence" - the category of offenses ...