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THE COURT OF APPEALS OF THE STATE OF ALASKA
SERGIO O. COLGAN, )
) Court of Appeals No. A-4351
Appellant, ) Trial Court No. 4FA-S91-678CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1254 - October 9, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: James M. Hackett, James M.
Hackett, Inc., Fairbanks, for Appellant.
Harry L. Davis, District Attorney, Fairbanks,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Sergio Colgan was convicted, based upon his plea of
guilty, of murder in the first degree, an unclassified felony
with a maximum term of imprisonment of ninety-nine years. AS
11.41.100. Superior Court Judge Richard D. Savell sentenced
Colgan to the maximum sentence of ninety-nine years of
imprisonment. In addition, Judge Savell ordered that Colgan
would be ineligible for parole. AS 12.55.115. Colgan appeals,
arguing that the sentence is excessive. We affirm.
Colgan and his friend, Eric Hughes, had for some time
planned to select a young female victim to kidnap, rape, and
murder. On October 13, 1990, Hughes and Colgan packed two
pistols and some duct tape in a briefcase and went hunting for a
victim. They parked at the Bentley Mall in Fairbanks for a few
minutes before noticing C.Z., a sixteen-year-old woman who had
gone to school with Hughes and Colgan. Hughes and Colgan devised
a plan to get C.Z. to an isolated area. Hughes approached C.Z.,
telling her that he needed a ride to work because Colgan was
going to give him a ride but Colgan's car had broken down. C.Z.
agreed to give Hughes a ride. Hughes directed C.Z. to a remote
area outside of Fairbanks. Colgan followed at a distance with
his car. At the remote area, Hughes and Colgan taped C.Z.'s
mouth and hands. According to Colgan, at this point Hughes told
Colgan that he "couldn't handle it anymore." Hughes got in
Colgan's car. Colgan then struck C.Z. in the back of the head
with a handgun, knocking her unconscious. They placed her in the
back of Colgan's car. Colgan then drove to a remote spot on the
Richardson Highway. As Colgan drove to this location Hughes got
in the back seat of the car and ripped off C.Z.'s clothes. When
they arrived at their destination Hughes and Colgan took turns
raping C.Z. After they finished raping C.Z., they taped her feet
together, taped her hands behind her back, and placed tape over
her hands and eyes. As they drove from the scene of the rape,
Colgan and Hughes discussed how to carry out the final part of
the plan: killing C.Z. They decided that the easiest way to
carry out C.Z.'s murder was to suffocate her by placing duct tape
over her mouth and nose. Hughes placed duct tape around C.Z.'s
nose and face. However, according to Colgan, the tape did not
kill C.Z. Hughes completed the murder of C.Z. by pressing a tire
iron against her throat, suffocating her. Hughes and Colgan then
placed the nude body of C.Z. in the trunk of their car. They
buried C.Z. and her clothes in a remote area off Chena Hot
Springs Road.
Shortly after committing this crime, Hughes joined the
Marine Corps and left the State of Alaska. Colgan stayed in
Fairbanks where he worked at the Jack Randolph Insurance Agency.
In January of 1991, Colgan entered counseling with a
psychologist. During this counseling, despite being warned by
the psychologist that the psychologist was required to report
child sexual abuse which he learned of during counseling, Colgan
told the psychologist that he and a friend had raped and murdered
a sixteen-year-old girl. The psychologist talked to an attorney
about his duty to disclose this information and concluded the law
required him to report it. The psychologist told this to Colgan
and arranged for Colgan to talk with an attorney. At this point
Colgan told the psychologist that he had made up the story about
the murder because he wanted attention. The psychologist told
Colgan and his counsel that he had to report the incident, and
called the State Division of Family Services. The police
contacted the psychologist, who told the police about Colgan's
statement.
Colgan attempted to reach Eric Hughes to warn him that
he might be contacted by the police. However, Hughes was in
basic training in California and Colgan was unable to contact
him. Meanwhile, Sergeant Jim McCann of the Alaska State Troopers
found out that Eric Hughes and Sergio Colgan were close friends.
Sergeant McCann traveled to California to meet with Hughes.
Hughes confessed to McCann and returned to Fairbanks with him.
McCann set up a meeting between Hughes and Colgan. The troopers
listened in on the conversation with a recording device. During
the meeting Hughes persuaded Colgan to allow him to call Sergeant
McCann. When McCann interviewed Hughes and Colgan, Colgan
confessed to the crime.
The state initially charged Colgan and Hughes with
kidnapping, murder in the first degree, and sexual assault in the
first degree. Hughes entered a plea of guilty to murder in the
first degree with the understanding that he would testify against
Colgan. Colgan's case went to trial. During jury selection,
Colgan entered a plea of guilty to a charge of murder in the
first degree with the understanding that the state would dismiss
the other charges.
In arguing that his sentence is excessive, Colgan
points out that at the time of the offense he was nineteen years
old and had no prior criminal record. He suggests that he
reported the offense to the psychologist in spite of being warned
of the lack of confidentiality. He contends that the record
shows that he is extremely remorseful, that he has a good
employment history, and that he has good prospects for
rehabilitation.
In sentencing Colgan, Judge Savell recognized that
Colgan was a young offender with no prior record. However, Judge
Savell started out his analysis pointing out the extreme facts of
the offense. Judge Savell found that Colgan had planned the
crime for a long period of time and that Colgan had possibly
planned the murder for months or even years. Colgan had chosen
C.Z. for abduction, rape and murder simply for the pleasure of
committing the crime. Judge Savell pointed out that Colgan had
been in close contact with C.Z. for several hours, had many
opportunities to withdraw from his plan without taking her life,
but had calmly, dispassionately, and brutally carried out the
murder. Judge Savell examined Colgan's claim of remorse. He
found that Colgan had only feigned remorse when he discovered
that his absence of remorse would be used against him at
sentencing. He examined Colgan's history of psychological
treatment. Judge Savell noted that Colgan had first undergone
treatment when, at the age of twelve, Colgan had attempted to
kill himself with a firearm. Judge concluded that in spite of
the treatment which Colgan had received it was obvious that the
treatment had failed. Judge Savell concluded that Colgan's crime
was a worst offense and that Colgan was a worst offender. He
found that the record showed that Colgan was an extremely
dangerous person and that there was every reason to believe that
Colgan would continue to be a dangerous person. He expressed
concern that if Colgan were ever released from jail, he would
again attempt to commit a perfect murder for the thrill of it.
Judge Savell concluded that in order to protect the public it was
necessary for him to sentence Colgan to ninety-nine years of
imprisonment and to order that he could not be released on
parole.
Colgan first contends that his sentence of ninety-nine
years of imprisonment is excessive. In Riley v. State, 720 P.2d
951, 952 (Alaska App. 1986) we pointed out that, "Alaska cases
have consistently approved the imposition of maximum sentences
for [murder in the first degree]. Indeed, we are aware of no
decision of this court or of the Alaska Supreme Court holding a
maximum sentence for first degree to be excessive." (Footnote
omitted.) See also Ridgely v. State, 739 P.2d 1299, 1303 (Alaska
App. 1987) (finding not clearly mistaken sentences of ninety-nine
years of imprisonment for murder in the first degree for two
defendants, age nineteen and age sixteen at the time of their
offense). Given the extremely aggravated nature of Colgan's
offense we do not find that the sentence of ninety-nine years of
imprisonment was clearly mistaken.
Colgan next contends that Judge Savell erred in
restricting his eligibility for parole. In Stern v. State, 827
P.2d 442, 450 (Alaska App. 1992) we stated:
When a sentencing judge restricts parole
eligibility, the judge must specifically
address the issue of parole restriction,
setting forth with particularity his or her
reasons for concluding that the parole
eligibility prescribed by AS 33.16.090 and AS
33.16.100(c) - (d) is insufficient to protect
the public and insure the defendant's reforma-
tion. When the defendant's sentence is
lengthy, as in Stern's case, Alaska law
presumes that questions of discretionary
release are better left to the Parole Board,
since the Board evaluates the advisability of
parole release in light of the defendant's
tested response to Department of Corrections
rehabilitative measures. However, because
the Alaska legislature has affirmatively
given sentencing judges the power to restrict
or deny parole eligibility, this presumption
(that parole release of long-term prisoners
should normally be evaluated after the
defendant has established an institutional
history) must remain rebuttable.
See also Lawrence v. State, 764 P.2d 318, 321 (Alaska App. 1988).
Judge Savell's findings comply with the requirements of Stern.
The Alaska Supreme Court and this court have previously found not
clearly mistaken sentences which required the defendant to spend
the rest of his life in prison without any possibility of parole.
See Nukapigkak v. State, 663 P.2d 943, 946 (Alaska 1983);
Alexander v. State, P.2d , Op. No. 1242 (Alaska App.,
August 21, 1992); Washington v. State, 828 P.2d 172, 175 (Alaska
App. 1992); Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992);
Weitz v. State, 794 P.2d 952, 958 (Alaska App. 1990); Hastings
v. State, 736 P.2d 1157, 1160 (Alaska App. 1987); Krukoff v.
State, 702 P.2d 664, 666 (Alaska App. 1985).
Colgan points out that the offenders in these cases
were not youthful offenders with no prior record who committed a
single offense. However, we conclude that Judge Savell's
findings are supported by the record and support the parole
restriction. The facts of this case are particularly chilling.
Colgan was a troubled young man who shot himself in the stomach
with a twenty-two caliber rifle in 1985. Colgan originally
claimed that the shooting was an accident, but in 1987 the
defendant confided in his mother that this was an attempt to get
attention by attempting suicide. Colgan told his mother in March
of 1987 that he was again feeling suicidal. Colgan entered
treatment at Charter North for approximately two months. It was
during this time that he confided to his roommate at Charter
North his interest in committing a murder without getting caught.
Several times Colgan talked to his roommate about murdering a
female victim. In 1990, Colgan discussed this obsession with his
friend, Eric Hughes. They planned to commit the crime for
several days and looked for victims. They mercilessly carried
out their plan. Based upon his observations of the defendants,
Judge Savell concluded that they had no remorse for their crimes.
He found that the remorse which they expressed was simply an
attempt to obtain a more lenient sentence.
Colgan exercised his fifth amendment right to refuse to
undergo a psychiatric examination. As Colgan points out, Judge
Savell could not aggravate Colgan's sentence because he exercised
his fifth amendment rights. Spencer v. State, 642 P.2d 1371,
1377 n. 5 (Alaska App. 1982). However, Judge Savell could
certainly sentence Colgan based upon the information he had
before him in the record. This is what the record reflects that
Judge Savell did. During the sentencing hearing, the state
presented testimony from Dr. David Sperbeck, who is a forensic
and clinical psychologist. Dr. Sperbeck had examined Eric Hughes
but did not examine Colgan. However, Dr. Sperbeck made some
general observations concerning the nature of the crime. Dr.
Sperbeck testified that he had conducted psychological
examinations of approximately one hundred and twenty to one
hundred and fifty people who had committed murders. In
describing the murder in this case Dr. Sperbeck stated that, "The
acts are among the most serious that I have ever seen." He
stated that he would predict "very little rehabilitative
potential in a person who methodically plans and meticulously
carries out a . . . complicated series of acts which resulted in
the . . . murder of a victim, as . . . in this case."1 Dr.
Sperbeck's conclusions give support to Judge Savell's findings.
We conclude that Judge Savell did not err in imposing the maximum
sentence of ninety-nine years of imprisonment and in restricting
Colgan's parole for that entire term.
The sentence is AFFIRMED.
_______________________________
1. We note that the author of the presentence report
also recommended that Colgan be sentenced "for the maximum
allowable period of incarceration" and that "the court should
order discretionary parole restricted to the fullest extent
allowed by law."
