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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL B. LOONEY, )
) Court of Appeals No. A-3783
Appellant, ) Trial Court No. 3AN-90-888 Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1207 - February 28,
1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark C. Rowland,
Judge.
Appearances: Valerie Leonard, Leslie A.
Hiebert, Assistant Public Advocates, and
Brant G. McGee, Public Advocate, Anchorage,
for Appellant. John J. Novak, Assistant
District Attorney, Edward E. McNally,
District Attorney, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Michael B. Looney was convicted of first-degree
assault, AS 11.41.200(a)(1), and fourth-degree assault, AS
11.41.230(a)(1), following a jury trial in the Anchorage superior
court. For the crime of first-degree assault, Superior Court
Judge Mark C. Rowland sentenced Looney to 20 years' imprisonment
with 5 years suspended. For the crime of fourth-degree assault,
Judge Rowland sentenced Looney to a concurrent term of 1 year's
imprisonment.
Looney appeals his first-degree assault sentence,
contending it is excessive. We affirm.
On the evening of November 24, 1989, Richard Hunter was
driving in south Anchorage when he saw a disabled vehicle on the
side of the road. The driver of the disabled vehicle was Michael
Looney. Even though Hunter did not know Looney, Hunter stopped
his van and helped Looney push the vehicle to the nearby
residence of Looney's mother.
When they arrived, Looney invited Hunter into the house
to meet his mother and her boyfriend. Later in the evening,
Looney's sister, April, arrived. Looney, Hunter, and April
Looney decided to go drinking and dancing.
Looney told his companions that before they could go
drinking he needed to visit the home of Leanne Reed, his common-
law wife, to retrieve identification so that he would be admitted
to the bars. (Looney was 24 years old.) Looney called Reed and
asked if he could come to her house. Reed told him to stay away.
However, an hour later, Looney rang Reed's doorbell and asked her
to let him in.
Looney knew that his visit to Reed's house was illegal.
Two weeks before (on November 9), Leanne Reed had obtained a
domestic violence writ against Looney after he punched her in the
eye, nose, and arm.
Reed told Looney to leave. Looney left her door, and
Reed went to bed. However, a short time later, Reed heard the
sound of breaking glass; Looney had broken into Reed's house
through a front window. Reed telephoned her father for
assistance and then went to confront Looney. Before help
arrived, Looney attacked Reed, beating her with his fists, then
knocking her down and kicking her. Reed suffered bruises to her
head and arm, a cut lip, and a broken tooth.
During the attack, Looney asked Reed if she had called
the police. Reed said she had. Looney then forced Reed to call
911 and directed her to tell the emergency operator that
everything was all right. Reed dialed the phone but remained
silent when the operator answered. Looney became more enraged
and yanked the telephone out of the wall.
Meanwhile, April Looney (who had been waiting in
Hunter's van) entered Reed's house and tried to get her brother
to leave. Looney chased his sister around the house but
eventually calmed down and left the house.
Looney, Hunter, and April Looney drove to a restaurant,
but they were refused entry because all three of them had been
drinking and because Looney's hand was bleeding from a cut he had
sustained when he broke through Reed's window. April Looney
elected to stay at the restaurant and call a friend to pick her
up and take her home. Looney and Hunter headed for another bar.
Arriving at the bar, Looney was again refused entry
because of his intoxication and because Looney could not produce
proof of his age. Looney and Hunter were able to purchase liquor
at a liquor store; they then went back to Looney's house. While
they were drinking, Looney and Hunter began to discuss firearms.
Looney took out three firearms: a .22 caliber rifle, a .30-`06
rifle, and a 9 mm semi-automatic pistol. Between 3:00 and 4:00
on the morning of November 25, the two men decided to drive south
on the New Seward Highway and shoot these weapons.
Looney and Hunter first began shooting the .30-`06
rifle, but it jammed after several shots. They tried firing the
.22 caliber rifle, but it jammed immediately. The two men spent
the next hour drinking and firing shots from the 9 mm pistol.
Hunter went to the back of the van to urinate. When he
returned, Looney was nowhere to be seen. Hunter walked around
the van, calling Looney's name, but Looney kept out of sight and
made no response. As Hunter returned to the driver's side of the
van, he saw Looney walk toward him from the rear of the van.
Looney was holding the 9 mm pistol. Without warning, Looney
pointed the pistol at Hunter and fired.
This first shot struck Hunter near his hip; he crumpled
to the ground. Looney hesitated a moment, and then, laughing,
began shooting again at Hunter as he lay on the ground. Looney
stopped only when he had exhausted the ammunition in the pistol.
Hunter, who had been hit several times, watched Looney
go back inside the van. Correctly surmising that Looney was
going back to find more ammunition and reload the handgun, Hunter
crawled away from the van and rolled himself down the highway
embankment to the Alaska Railroad tracks.
Looney first tried to drive the van away, but the
vehicle became stuck in the snow. Looney then walked down the
embankment to where Hunter lay. Pointing the 9 mm pistol at
Hunter's head, Looney told him to surrender his money. After
Hunter had given Looney his money (approximately $30 to $40),
Looney raised the pistol and pointed it at Hunter's head.
Hunter, pleading for mercy, raised his hands in front of his
face. Looney fired. The bullet struck a finger of Hunter's left
hand, the force of the blow pushing Hunter's hands against his
head. Hunter collapsed and feigned death.
Looney climbed back up the embankment, entered Hunter's
van, and drove away, northbound toward Anchorage. Heavily intoxi
cated, he apparently fell asleep while driving; the police found
the van in a ditch, with Looney still behind the wheel. The
police recovered the 9 mm pistol in the snow nearby. A round of
ammunition was jammed in the pistol's action, indicating that
Looney may have tried to shoot Hunter one more time but was
unable to.
Hunter was rescued by a pair of rock climbers who
discovered him when they came to practice on the cliffs
overlooking the Seward Highway. Hunter was in critical
condition. He had been shot in his right thigh, his abdomen, his
right knee, and the little finger of his left hand. He had two
additional grazing wounds, one on his right leg and another on
his left rib cage. Hunter was suffering from serious blood loss
because the bullet in his right knee had severed a major artery.
The bullet that entered his abdomen had struck his spine,
paralyzing his right leg. Moreover, Hunter had lain exposed for
two hours in twenty-degree weather. Six hours of surgery saved
Hunter's life, but his right leg is permanently paralyzed.
For his attack on Richard Hunter, Looney was indicted
for attempted murder and first-degree assault. For his attack on
Leanne Reed, Looney was indicted for fourth-degree assault. At
trial, Looney defended on a diminished capacity theory. The jury
was unable to agree on a verdict on the attempted murder charge,
but the jury convicted Looney of first-degree assault and fourth-
degree assault. The State elected not to retry Looney on the
attempted murder charge.
Looney was a first felony offender for presumptive
sentencing purposes. Because he was convicted of first-degree
assault under AS 11.41.200(a)(1) (recklessly causing serious
physical injury by means of a dangerous instrument), Looney faced
a presumptive term of 5 years' imprisonment for this class A
felony. AS 11.41.200(b), and AS 12.55.125(c) as interpreted in
Pruett v. State, 742 P.2d 257, 262-63 (Alaska App. 1987).
Looney, who was 25 years old at the time of sentencing,
had an extensive criminal history, both as a juvenile and as an
adult, beginning when he was 12 years old. In February 1977,
Looney committed burglary. In May 1977, he committed two
different trespasses. One year later, in May 1978, Looney
committed armed robbery; Looney and his brother obtained money
from smaller boys by threatening them with a "wrist rocket" (a
high-powered slingshot) and with "numchucks".
In August 1978, Looney was adjudicated delinquent for
harassment. In May 1980, he committed joyriding. And in
February 1982, he committed forgery, theft, and joyriding.
Following this last series of offenses, Looney was committed to a
juvenile facility for up to 4 years. He was released from
juvenile custody on May 2, 1983. Six months later, Looney
commenced his adult criminal record.
In December 1983, Looney committed grand theft in
Idaho. He was sentenced to an indeterminate term of imprisonment
not to exceed five years. After Looney was released on probation
in May 1984, he came to Alaska.
In July 1985, Looney committed the crimes of theft,
vehicle tampering, and providing false information to the police.
He received a suspended imposition of sentence on each count.
The next year, Looney assaulted his wife, Tammy Looney;
he also was convicted of resisting an officer and providing false
information to the police (giving a false name when arrested).
Looney received a total sentence of 150 days in jail with 137
suspended for these three crimes and was ordered to pay a $250
fine. As conditions of probation, he was prohibited from having
contact with his wife and was also ordered to undergo male aware
ness counseling and to submit to alcohol screening. Looney's
probation was later revoked because he had contact with his wife,
he failed to go to counseling, he failed to submit to alcohol
screening, and he failed to pay the fine.
In July 1987, Looney was convicted of shoplifting and
of driving while his license was suspended. He was sentenced to
30 days with 28 suspended for the shoplifting, and to 10 days for
driving with a suspended license.
Looney returned to California. In August 1988, Looney
was convicted of the California offense of inflicting injury on a
spouse (Leanne Reed) and of the additional offense of providing
false information to the police officer investigating the
assault. One month later (September 1988), Looney was again
convicted of inflicting injury on a spouse. Looney received
suspended impositions of sentence for these crimes and was
ordered to pay a fine and to undergo counseling. Looney's
probation was revoked because he failed to pay the fine and
failed to undergo counseling.
In July 1989, Looney was charged with three crimes:
inflicting injury on a spouse, inflicting injury with intent to
terrorize, and obstructing or resisting a police officer. The
first two charges were dismissed when Looney pleaded guilty to
resisting the officer. He was again given a suspended imposition
of sentence but, as a condition of probation, was ordered to
spend 40 days in jail.
Looney returned to Alaska, where the following month
(August 1989) he committed the crime of driving while his license
was suspended. He received 60 days in jail with 50 suspended.
Finally, on November 25, 1989, Looney committed the
offenses in the present case. In addition to the first-degree
and fourth-degree assaults for which he was indicted and
convicted, the record shows that Looney committed several other
offenses that day: driving while intoxicated, driving with a
suspended license, first-degree burglary (breaking into Leanne
Reed's house), and first-degree robbery (taking money from
Richard Hunter at gunpoint).
Upon this record, Judge Rowland found that the State
had proved three aggravating factors: Looney's criminal history
included aggravated or repeated instances of assaultive behavior,
AS 12.55.155(c)(8); Looney's criminal history included a juvenile
delinquency adjudication for conduct (forgery) that would have
been a felony if committed by an adult, AS 12.55.155(c)(19); and
Looney's conduct in the present case was among the most serious
included in the definition of first-degree assault, AS 12.55.155
(c)(10). Looney did not assert the existence of any mitigating
factors.
In Looney's interview with the pre-sentence
investigator, Looney acknowledged that he had had a substantial
problem with both alcohol and drugs since he was 19 years old.
The pre-sentence investigator concluded that, while Looney could
be amiable enough when sober, Looney's inability to refrain from
alcohol and drug abuse, and his violent behavior when
intoxicated, had been a major factor in causing his lengthy
involvement with the justice system. Moreover, Looney had
consistently refused to take advantage of rehabilitative
counseling and treatment that was made available to him.
Based on the facts of the present case, Looney's
criminal history, and Looney's persistent failure to come to
grips with his alcohol and drug abuse, Judge Rowland concluded
that Looney was a worst offender. He found that Looney was
extremely dangerous when he was drinking or using drugs, and he
concluded that Looney's inability to cope with these problems
made it likely that Looney would continue his assaultive behavior
unless he was incarcerated.
Judge Rowland declared that he believed Looney's isola
tion in prison was required for the protection of the public and
that isolation of the offender was the most important sentencing
criterion in Looney's case. State v. Chaney, 477 P.2d 441
(Alaska 1970). As noted above, Judge Rowland sentenced Looney to
20 years' imprisonment with 5 years suspended for the first-
degree assault on Richard Hunter.
Arguing that his sentence for first-degree assault is
too severe, Looney first contends that his sentence violates the
rule announced in Austin v. State, 627 P.2d 657, 657-58 (Alaska
App. 1981), that first felony offenders should normally serve a
lesser term of imprisonment than the presumptive term specified
for second felony offenders. However, Judge Rowland found three
aggravating factors, factors which Judge Rowland relied on when
he sentenced Looney to a term of imprisonment exceeding the 10-
year presumptive term specified in AS 12.55.125(c)(3) for second
felony offenders convicted of a class A felony. Neakok v. State,
653 P.2d 658, 662 (Alaska App. 1982).
Looney argues that these aggravating factors did not
justify a major adjustment of the presumptive term. Looney
asserts that his lengthy history of assaultive behavior is not
particularly relevant to his first-degree assault conviction
because most of his assaults were directed toward the women he
lived with. The major exception is Looney's juvenile
adjudication for armed robbery, but Looney contends that he
should not be penalized for conduct that occurred when he was 12
years old. With regard to the forgery committed while he was a
juvenile - Judge Rowland's basis for finding aggravator (19) -
Looney likewise argues that this theft-related offense bears
little relevance to the first-degree assault in this case.
When a sentencing judge finds that aggravating or
mitigating factors have been proved, the judge's next duty is to
decide how much to adjust the presumptive term on account of
these factors. For this purpose, the factors are weighed in
light of the Chaney sentencing criteria. Juneby v. State, 641
P.2d 823, 833, 838 (Alaska App. 1982), as modified on rehearing,
665 P.2d 30, 31-32 (Alaska App. 1983).
It is true that most of Looney's past criminal assaults
have been committed against the women in his life rather than
against strangers. This, however, does not mean they have
minimal importance. To the contrary: the Alaska legislature
views domestic assault as an aggravated form of assault. AS
12.55.155(c)(18)(A). Moreover, as a condition of his sentences
for this long string of assaults, Looney was repeatedly ordered
to participate in anger counseling and alcohol rehabilitation pro
grams. Looney's probation was repeatedly revoked because he
refused to participate in these rehabilitative programs.
Looney's persistent refusal to avail himself of rehabilitative
opportunities is directly relevant to the Chaney criteria of
potential for rehabilitation, need for isolation, and deterrence.
Likewise, even though the forgery Looney committed as a
juvenile is a much different crime from the first-degree assault
Looney committed in this case, Looney's adjudication for forgery
led to his spending over a year in a juvenile institution.
Within six months after his release, Looney committed his first
adult criminal offense. This history is again relevant when
judging Looney's potential for rehabilitation, the need for his
isolation, and the amount of punishment necessary to deter him
from further crimes.
Finally, Judge Rowland found that Looney's conduct was
among the most serious within the definition of first-degree
assault. Judge Rowland based this decision on three factors:
first, Looney's attack on Hunter was completely unprovoked and
lacked any apparent motive; second, Looney demonstrated cruelty
by laughing at Hunter as he shot him repeatedly, and then by
shooting Hunter a final time while Hunter begged for mercy; and
third, Looney's conduct approximated the more serious offense of
attempted murder.
It is true, as Looney contends, that a sentencing judge
must exercise caution when adjusting a presumptive term based on
aggravating or mitigating factors. Juneby, 665 P.2d at 30. The
amount of adjustment should hinge on the degree to which the
factors proved in a particular case, evaluated in light of the
Chaney criteria, distinguish the defendant or the defendant's
conduct from the typical offender and offense envisioned by the
legislature when it established the presumptive terms.
Here, however, Judge Rowland concluded that Looney was
a worst offender. Such a characterization, if justified by
either the facts of Looney's present offense or his criminal
history, Moore v. State, 597 P.2d 975 (Alaska 1979), would
support imposition of even the maximum sentence (here, 20 years'
imprisonment). Jacinth v. State, 593 P.2d 263 (Alaska 1979);
Tommy v. State, 551 P.2d 179 (Alaska 1976); Galaktionoff v.
State, 486 P.2d 919 (Alaska 1971).
We conclude that the record in Looney's case supports
Judge Rowland's sentence. Without provocation or other apparent
motive, Looney stalked Hunter, shot him repeatedly, robbed him as
he lay wounded, and then fired another shot at his head. Having
done this, Looney left Hunter lying in a place where he was
unlikely to be found before he either bled or froze to death. As
a result of this assault, Hunter's right leg is permanently
paralyzed.
At the age of 25, Looney had been in trouble with the
law, as a juvenile and later as an adult, for half his life. He
had several assault convictions as well as several convictions
involving dishonesty. He had spent over a year in a juvenile
institution, but this had not deterred him from further criminal
activity. He had serious alcohol and drug problems which he
refused to address. Even when sentencing courts had ordered him
to undergo anger counseling and alcohol treatment, Looney consis
tently refused to participate in these rehabilitative efforts.
In Pruett v. State, 742 P.2d 257, 264 (Alaska App.
1987), based on an extensive review of past assault sentences,
this court concluded that "[s]entences of 10 years or more [to
serve] ... have generally been based on isolation as a goal of
sentencing and have been reserved for those with a proven record
of recidivism or those whose conduct involved premeditated
attempts to kill or seriously injure." Pruett phrases these two
criteria in the disjunctive, but Looney's case satisfies both of
them. Looney purposefully tried to kill or seriously injure an
unarmed man, and his 12 years of continuing criminal offenses
demonstrate his recidivism.
See also State v. Wentz, 805 P.2d 962 (Alaska 1991),
rejecting the notion that these two criteria are the only ones
that could justify a sentence of more than 10 years to serve.
While Looney's sentence is severe, it is not out of
line with sentences previously upheld in aggravated assault
cases. For example, in Wentz the supreme court upheld a sentence
of 15 years with 3 suspended (12 years to serve) for a defendant
who beat his wife, causing severe brain damage. A first felony
offender, Wentz nevertheless had twelve misdemeanor convictions
(three of them for assault) and long-standing problems with
alcohol and anger control. Id. at 963. Looney's conduct and
past history are similar to those in Wentz in many respects, but
Looney's crime is arguably more serious, since Looney assaulted
Hunter with a firearm in a manner that was calculated, and
substantially certain, to cause death or serious physical injury.
In Kagak v. State, 624 P.2d 818 (Alaska 1981), the
supreme court upheld a sentence of 15 years to serve for shooting
with intent to wound. Kagak, while on a drinking binge,
brandished a shotgun and then fired it into an onlooker's
shoulder at point-blank range. Kagak had one prior conviction,
for armed robbery.
Several times, the supreme court has upheld sentences
in the 15- to 20-year range for armed assaults which resulted in
no injury. In Cooper v. State, 595 P.2d 648 (Alaska 1979), the
court upheld a composite sentence of 15 years to serve for a
defendant convicted of firing shots at three police officers,
none of whom was hit. Cooper, a chronic alcoholic, had three
prior felonies, but these were all non-violent offenses: passing
a forged check, burglary of a dwelling, and sale of marijuana.
Id. at 650.
In Fox v. State, 569 P.2d 1335 (Alaska 1977), the
supreme court upheld a composite sentence of 20 years to serve
for armed robbery and assault with intent to kill. Fox tried to
shoot a police officer who had come to arrest him for the
robbery; luckily, the shot missed and the officer was unharmed.
Fox had no prior criminal convictions, although he had been
disciplined while in the military for drug possession, joyriding,
and possession of an unregistered firearm. Id. at 1336.
In another instance, Ferguson v. State, 590 P.2d 43
(Alaska 1979), the supreme court upheld a composite sentence of
15 years to serve under similar circumstances. Ferguson and two
companions entered a bar and robbed a bartender and four patrons
at gunpoint. A short time later, two officers of the State
Troopers spotted the trio driving down the highway and gave
pursuit in their patrol cars. Ferguson rolled down a window of
his car and fired two shotgun blasts, one at each of the patrol
cars; the pellets struck the officers' cars but did not wound the
officers. Ferguson, at age 18, had no adult convictions but he
did have juvenile adjudications for shoplifting and burglary. He
was also a problem drinker.
As the Supreme Court reiterated in Wentz, 805 P.2d at
965:
[A]nalytically, the clearly mistaken test
[adopted in McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974)] implies a permissible
range of reasonable sentences which a review
ing court, after an independent review of the
record, will not modify. This "range of
reasonableness" ... should be determined ...
by an examination of the particular facts of
the individual case in light of the total
range of sentences authorized by the legisla
ture for the particular offense.
(Emphasis deleted from the original)
Generally, one cannot expect sentencing judges to find
appellate sentencing decisions that deal with facts identical to
the cases before them. Moreover, one can often argue that the
criminal conduct in a past case or the defendant's criminal
history in a past case is either more or less egregious than the
present defendant's conduct or history. However, the decisions
cited above show that the sentence Looney received - 20 years'
imprisonment with 5 years suspended - is within the range of
sentences upheld in comparable assault cases. Looney's sentence
is therefore not clearly mistaken. McClain v. State, 519 P.2d
811, 813-14 (Alaska 1974).
Looney argues that, whether his sentence is facially
reasonable or not, Judge Rowland should not have imposed such a
lengthy sentence without first ordering Looney to undergo a
psychological evaluation. See State v. Bumpus, 820 P.2d 298, 304-
05 (Alaska App. 1991), and DeGross v. State, 768 P.2d 134, 141
(Alaska App. 1989). However, Looney never complained of the lack
of a psychological evaluation during the sentencing proceedings
in superior court.
Looney's failure to demand a psychological evaluation
may well have been tactical. Looney's privilege against self-
incrimination gave him the right to refuse to participate in a
court-ordered psychological evaluation. R.H. v. State, 777 P.2d
204 (Alaska App. 1989). Rather than have Looney submit to an
evaluation that might provide the prosecution with evidence to
use against him, or rather than prompt the superior court to
order an evaluation and then have Looney explicitly invoke his
privilege against self-incrimination, Looney's attorney may have
felt it more advantageous to proceed with sentencing in the
absence of a psychological evaluation.
If Looney believes that a psychological evaluation
would be helpful to him, he may seek one in conjunction with a
timely motion to reduce his sentence under Alaska Criminal Rule
35(a).
The sentencing decision of the superior court is
AFFIRMED.
