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THE COURT OF APPEALS OF THE STATE OF ALASKA
SHAY J. BOZIEL, )
) Court of Appeals No. A-4730
Appellant, ) Trial Court No. 3AN-S90-2381CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1326 - December 10, 1993]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, John Reese,
Judge.
Appearances: Barbara Brink, Assistant Public
Defender, Kodiak, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Robert
J. Collins, Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Shay J. Boziel was charged with murder in the first
degree and eventually entered into an agreement with the state to
plead no contest to the lesser offense of murder in the second
degree. The agreement called for Boziel to receive a sentence of
no more than thirty years. Superior Court Judge John Reese
accepted the terms of the negotiated disposition and sentenced
Boziel to thirty years. Boziel appeals, contending that his
sentence is excessive. We affirm.
THE OFFENSE
In the early morning hours of April 22, 1990, Boziel
and a companion, Edward G. Vogler, were drinking, socializing,
and driving around Anchorage. Boziel was carrying a .22 caliber
handgun he had obtained from a girlfriend. Earlier that night,
while speaking with his girlfriend, Boziel had asked how she felt
about shooting someone.
As the two men drove, they spotted a female pedestrian,
a stranger. Vogler stopped the car. Boziel offered the
pedestrian, D.M., a ride. She accepted. As D.M. approached the
car, Boziel told Vogler he intended to shoot her. Within
minutes, Boziel fired three shots into D.M.'s chest at point
blank range, without warning or provocation. After the shooting,
Boziel and Vogler left D.M.'s body in an alley garbage crib.
Vogler partially disrobed D.M.'s body to make the homicide look
like it had been sexually motivated.
A short time after Boziel and Vogler abandoned D.M.'s
body, a police officer attempted to stop their car for an
equipment violation. Vogler led the officer on a high speed
chase but was eventually stopped. The police arrested him for
driving while intoxicated. They arrested Boziel on outstanding
traffic warrants.
Within several hours, while both men remained in
custody, D.M.'s body was discovered, and the police were
summoned. Fortuitously, the officer who had earlier stopped
Boziel and Vogler responded to the call and connected the two men
to the killing. The police questioned Vogler; he told them that
Boziel actually fired the shots. Physical evidence tended to
corroborate his story. Vogler negotiated an agreement to plead
no contest to manslaughter in return for his testimony against
Boziel. Because of uncertainty as to whether a jury would accept
Vogler's testimony against Boziel, the state agreed to allow
Boziel to plead no contest to second-degree murder; the agreement
included the thirty-year sentencing cap.
THE OFFENDER
Boziel was nineteen years old when he committed the
murder. He had recently received a general discharge from the
Army for unsatisfactory performance. Boziel spent his early life
in California, where he grew up in a troubled and unstable family
environment. Boziel was introduced to alcohol and other drugs at
an early age; by the time of this offense, he had developed a
serious alcohol and drug abuse problem.
Between the ages of twelve and sixteen, Boziel
accumulated a significant record of delinquent behavior in
California, which culminated in his adjudication in 1986 for
conduct amounting to felony theft. Most of Boziel's juvenile
misconduct involved property offenses; his 1986 felony
adjudication involved theft of a firearm. In addition, at
fourteen years of age he had been accused of sexually molesting a
child; the charge had resulted in a deferred prosecution
agreement.
Boziel's delinquency subsided abruptly in the latter
part of 1986, when he and his foster parents moved from
California to Kentucky. By all accounts, Boziel's behavior
improved dramatically; his academic performance stabilized, he
pursued a course of vocational training with outstanding results,
and he successfully completed his juvenile probation.
Boziel's improved behavior lasted until he enlisted in
the Army after his eighteenth birthday. The improvement appears
to have resulted from his placement in a stable and nurturing
family setting. Upon joining the Army, however, Boziel again
experienced significant problems. His discharge from the Army,
which occurred only slightly more than a year after enlistment,
resulted from a consistent pattern of insubordination and
noncompliant behavior.
Boziel's current offense occurred approximately a month
after he left the Army. After being charged with murder, Boziel
was placed in the Cook Inlet Pretrial Facility; he resided there
until his sentencing hearing, two and one-half years later.
Boziel's institutional record at Cook Inlet was poor: he spent
approximately half of his pre-sentence incarceration in punitive
detention for recurring infractions involving failed or refused
drug screens and possession of unauthorized articles.
Prior to sentencing, Boziel submitted to a
psychological evaluation by Dr. James F. Harper. Harper found
that Boziel suffered from polysubstance abuse and chronic
depression. In addition, he found that Boziel met the diagnostic
criteria for antisocial personality disorder. Harper noted
several traits -- including a capacity for empathy -- indicating
that Boziel was not "entirely sociopathic" in his "total
personality structure." These traits caused Harper to question
whether Boziel's conduct could properly be characterized as a
"thrill killing." Harper nevertheless found the diagnosis of
antisocial personality disorder generally appropriate, stating:
Mr. Boziel does have poor behavioral
controls, is impulsive, lacks long-term
goals, is unstable in his unemployment,
abuses drugs, and has a history of juvenile
delinquency. He has clearly not been able to
manage his feelings [or] his behavior
adequately since incarceration.
THE SENTENCING HEARING
At his sentencing hearing, Boziel argued that as a
youthful first offender who had shown himself capable of
exemplary conduct when placed in a stable environment, he
deserved a sentence recognizing his prospects for rehabilitation
-- a sentence that included a substantial amount of suspended
time. Boziel urged Judge Reese to impose a term of thirty years
with ten years suspended. That sentence would place him at the
low end of the benchmark sentencing range for second-degree
murder. Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
This is where Boziel contended he belonged.
Judge Reese flatly rejected Boziel's
proposal. Finding that the nature of
Boziel's crime and the manner in which he
committed it were extraordinarily aggravated,
Judge Reese expressed the view that, but for
the sentencing agreement, Boziel's conduct
would easily have warranted a sentence
exceeding the thirty-year benchmark range.
Judge Reese assessed Boziel's conduct as
follows: This is a murder case. Mr.
Boziel picked up [D.M.]. Shortly thereafter,
shot her 3 times. She was killed suddenly,
without warning, without reason. Completely
innocent, and apparently completely unaware
that it was about to happen. She may not
have even known it happened. She's dead.
This was senseless, it's random, the
presentence report referred to it as a thrill
killing, and the defense has responded to
that. I don't know that that has any
technical meaning, I suppose it's as good a
term as any. It's certainly the way it
sounds to me. And now this young woman is
gone, . . . her body was found in an alley,
dumped in the trash.
Given the circumstances of the offense, Judge Reese
found the thirty-year maximum the parties had agreed on to be
lenient, concluding that "[i]t's justified only because of the
[state's] proof problems."
Before imposing Boziel's sentence, Judge Reese
expressly considered rehabilitation but concluded that Boziel's
prospects for rehabilitation were not favorable:
I considered that Mr. Boziel is unlikely to
respond well to efforts at rehabilitation.
He has drug problems, he has a history of
family problems, he has many things like
that. Some of those can be solved, they can
be solved by him, they don't necessarily
respond to outside efforts.
Judge Reese also expressly considered and rejected as
unwarranted Boziel's request to suspend a substantial portion of
the sentence. In reaching this decision, the judge acknowledged
that Boziel had shown himself capable of controlling his behavior
under certain circumstances:
[Defense counsel] has argued that the 30 year
sentence with 10 years suspended would be
appropriate, because that would give 10 years
for a probation office to supervise Mr.
Boziel and give him support[.] [Counsel]
points out that he did well when he had a
foster family that loved him and that
accepted him and that supported him. And he
did do well briefly while he had that kind of
acceptance. Probationary supervision,
however, is not regarded as proof of
affection, which is really what Mr. Boziel
responded to, I think. It's part of the
restrictive process, and restrictions and
rules are what Mr. Boziel does not handle
well. I would expect Mr. Boziel to fail on
probation.
Judge Reese went on to observe that the senselessness
of Boziel's crime caused serious concern for public safety: "It's
profoundly frightening to think that somebody can pick up a
perfect stranger and kill them for no reason, . . . right in our
midst." Given Boziel's history of misconduct, his poor prospects
for rehabilitation, and the seriousness of his crime, the judge
concluded that Boziel deserved a sentence emphasizing deterrence,
community condemnation, and isolation.
For these reasons, Judge Reese imposed the maximum term
allowed under the plea agreement, thirty years.
DISCUSSION
On appeal, Boziel insists that Judge Reese's decision
to impose the maximum sentence permitted by the plea agreement
reflects a "complete failure to consider rehabilitation as a
[sentencing] goal." As demonstrated in the passages quoted
above, however, Judge Reese gave careful consideration to the
goal of rehabilitation and to the advisability of suspending a
portion of Boziel's term. His consideration simply led him to a
conclusion other than the one Boziel wanted.
Judge Reese was under no obligation to give rehabilita-
tion top priority in sentencing. The judge's skepticism toward
Boziel's prospects for rehabilitation and toward the likelihood
of his success on probation was well justified by the record.
Boziel also argues that his thirty-year term is
excessive in comparison to sentences received by other offenders
convicted of second-degree murder. He likens himself to other
offenders convicted of second-degree murder for whom sentences of
twenty years or less have been approved. Relying on Dr. Harper's
report, Boziel disputes Judge Reese's characterization of his
crime as a "thrill killing." Boziel challenges the judge's
conclusion that the seriousness of his conduct would justify a
sentence exceeding the negotiated thirty-year limit.
In advancing this argument, however, Boziel views the
record in the light most favorable to himself, ignoring the
somewhat dimmer view taken by Judge Reese, a view the record
fully supports. Boziel also attempts to ameliorate his situation
by pointing to evidence indicating that Vogler was not truthful
in naming Boziel as the person who fired the murder weapon.
Boziel suggests that Vogler himself may have committed the crime.
Boziel thus complains of a lack of "parity," since Vogler pled no
contest to a lesser crime and received a more lenient sentence.
But Boziel's comparison of his situation to Vogler's is
inapposite precisely because it asserts the possibility that
Vogler was the person who shot D.M. To be sure, as Judge Reese
recognized in his sentencing remarks, Boziel was entitled to take
full advantage of any weakness or uncertainty in the state's
evidence to negotiate a favorable disposition of his first-degree
murder charge. Beyond the favorable plea and sentence limit he
negotiated, however, Boziel retained no right to receive a
sentence discounted for uncertainty. By entering his plea of no
contest to second-degree murder, Boziel necessarily consented to
have his commission of the crime be taken as established fact.
Judge Reese did just that, accepting Boziel's plea at face value.
The judge was justified in doing so.
Apart from questions concerning the strength of the
state's case against Boziel, the record permits little
uncertainty as to the magnitude of the crime committed in this
case. That crime was a deliberate, unprovoked, and apparently
purposeless killing of a randomly selected victim. It matters
little whether we call Boziel's crime a "thrill killing" or
something else; the unique seriousness of the crime inheres in
the unfathomable sources of motivation from which it arose. That
Boziel committed a murder for unknown and profoundly unknowable
reasons adds a frightening element of unpredictability to his
case -- an element that engenders grave doubt as to his capacity
for reform and provides strong reason to think that he will pose
a serious, continuing threat to society. Cf. Nelson v. State,
619 P.2d 480, 481 (Alaska App. 1980).
In cases of second-degree murder involving gratuitous
and inexplicable acts of homicide we have consistently upheld
sentences substantially exceeding thirty years' imprisonment.
See, e.g., Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.
1987); Faulkenberry v. State, 649 P.2d 951, 956-57 (Alaska App.
1982). Having independently reviewed the entire sentencing
record, we conclude that the sentence imposed below is not
clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
The sentence is AFFIRMED.
