Notice: This opinion is subject to formal
correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES C. LOWE, )
) Court of Appeals No. A-5008
Appellant, ) Trial Court No. 3AN-S92-4035CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1331 - January 28, 1994]
)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karl S.
Johnstone, Judge.
Appearances: William P. Bryson and Shelley
K. Chaffin, Law Office of William P. Bryson,
Anchorage, for Appellant. James L. Hanley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge. [Bryner,
Chief Judge, not participating.]
COATS, Judge.
On the evening of May 9, 1992, eighteen-year-old Clyde
Thompson and several friends were participating in a scavenger
hunt organized by students at Service High School. One item on
their list was a promotional balloon tethered to the roof of the
Lo-Mark Furniture Store on Gambell Street. The youths obtained a
pair of scissors and a knife to cut the balloon free and drove to
the Lo-Mark Furniture Store parking lot. Several students scaled
the roof of the store while others waited below.
At that time, the owner of the Lo-Mark Store, James C.
Lowe, and his wife drove their motor home into the parking lot of
the furniture store. They noticed two people on the roof who
appeared to be stealing the balloon. Lowe yelled at the
individuals and retrieved a six-shot .38 caliber revolver from
his motor home. Lowe told his wife, "I'm gonna scare 'em to
death this time." Lowe ran around the building, saw the
individuals running toward a car, and fired six shots in their
general direction.
One of Lowe's shots struck Clyde Thompson in the back.
Thompson's companions realized that he had been seriously wounded
and drove him to the Alaska Medical Center for help. The bullet
had pierced Thompson's heart, and he died at the hospital.
When the police investigated the incident, they found
that three other shots which Lowe fired had struck rooms in the
Samovar Inn. Two bullets had entered room number 40, striking a
television set and mirror. This room was occupied by a man and
his wife who fortunately were out to dinner when the bullets
struck. Another bullet entered an unoccupied room.
Following the investigation, the state charged Lowe
with murder in the second degree. Following a trial, a jury
convicted Lowe of manslaughter.
Manslaughter is a class A felony with a maximum
sentence of twenty years' imprisonment. AS 11.41.120 and AS
12.55.125. There is a presumptive sentence of five years'
imprisonment for a first-felony offender, ten years for a second-
felony offender, and fifteen years for a third-felony offender.
AS 12.55.125(c). At the time of sentencing, Lowe was forty-eight
years old and had no prior convictions.
Superior Court Judge Karl S. Johnstone found that two
aggravating factors applied to Lowe's offense: that "the
defendant employed a dangerous instrument in furtherance of the
offense" and that "the defendant's conduct created a risk of
imminent physical injury to three or more persons, other than
accomplices[.]" AS 12.55.155(c)(4) and (6). Judge Johnstone
found that no mitigating factors were applicable. Lowe does not
contest these findings.
In the absence of mitigating factors, Judge Johnstone
was required by law to impose at least the five-year presumptive
sentence. Lowe contended that sentencing him to five years'
imprisonment was manifestly unjust, and urged Judge Johnstone to
refer the case to a three-judge panel pursuant to AS 12.55.165.
Alaska Statute 12.55.165 provides:
If the defendant is subject to
sentencing [under presumptive sentencing] and
the court finds by clear and convincing
evidence that manifest injustice would result
from failure to consider relevant aggravating
or mitigating factors not specifically
included in AS 12.55.155 or from imposition
of the presumptive term, whether or not
adjusted for aggravating or mitigating
factors, the court shall enter findings and
conclusions and cause a record of the
proceedings to be transmitted to a three-
judge panel for sentencing under AS
12.55.175.
A three-judge panel must adjust a defendant's sentence if it
finds "that manifest injustice would result from failure to
consider relevant aggravating or mitigating factors not
specifically included in AS 12.55.155 or from imposition of the
presumptive term." AS 12.55.175(b).
Lowe requested that Judge Johnstone refer his case to a
three-judge panel on two grounds: (1) that manifest injustice
would result from failure to consider Lowe's exceptional
prospects for rehabilitation, and (2) that manifest injustice
would result from imposition of the presumptive five-year term.
Judge Johnstone concluded that Lowe's case was
appropriate for referral to a three-judge panel. In making this
referral, Judge Johnstone found that although Lowe acted out of
anger and frustration, he had not intended to shoot anyone.
Judge Johnstone also found that while Lowe had acted recklessly
in firing the shots, he had generally been a productive citizen
who was extremely and genuinely remorseful. Judge Johnstone
concluded that Lowe had excellent prospects for rehabilitation.
He noted that this court has encouraged referral of debatable
cases to a three-judge panel. Bossie v. State, 835 P.2d 1257,
1259 (Alaska App. 1992); Lloyd v. State, 672 P.2d 152, 155
(Alaska App. 1983).
A three-judge panel concluded that it would not be
manifestly unjust to impose the presumptive five-year term and
remanded the case back to Judge Johnstone. Judge Johnstone
imposed the five-year presumptive sentence.
On appeal, Lowe contends that the three-judge panel
failed to consider the issue of whether it was manifestly unjust
to sentence him without considering his exceptional potential for
rehabilitation. Having carefully reviewed the findings of the
three-judge panel, we believe that the panel properly considered
and rejected this issue. In its brief remarks rejecting Lowe's
claim that his sentence should be less than the five-year
presumptive term, the panel stated:
In this case, it appears to the panel
that, essentially, the counsel argued the
referral on the basis of manifest injustice.
The court notes that in connection with Judge
Johnstone's remarks at the time of the
original sentencing proceeding and the
referral, he made a finding that there was
extraordinary potential [for] rehabilitation.
The court assumes that the referral was made
also on the basis of manifest injustice not
to consider the non-statutory aggravator.
In this context, it is clear that the three-judge panel
considered Lowe's potential for rehabilitation but found that his
actions were sufficiently reckless, and his crime sufficiently
aggravated, that it would not be manifestly unjust to impose the
five-year term without downward adjustment based on Lowe's
prospects for rehabilitation.1
In Bossie v. State, 835 P.2d at 1257 (Alaska App.
1992), we interpreted AS 12.55.165 "to mean that a case should be
referred to the three-judge panel if (1) a non-statutory factor
has been proved, and (2) it would be manifestly unjust to fail to
adjust the presumptive term by some amount, no matter how small,
on account of this non-statutory factor." Id. at 1259. Bossie
had been convicted of manslaughter and second-degree assault for
driving while intoxicated and colliding with another car, killing
one person and injuring another. Id. at 1257. Judge Johnstone,
who was also the sentencing judge in that case, found that while
Bossie possessed exceptional potential for rehabilitation, his
offense was sufficiently serious "that adjustment of the five-
year presumptive term to take account of the non-statutory
mitigator was not required to prevent manifest injustice." Id.
at 1261. We upheld that finding.
The foregoing standard, which the sentencing judge
applies in deciding whether to refer a case to a three-judge
panel under AS 12.55.165, is the same standard a three-judge
sentencing panel applies in deciding whether to adjust a sentence
under AS 12.55.175. In the instant case, it is clear that the
three-judge panel applied this standard and concluded that Lowe's
offense was sufficiently aggravated and serious that it would not
be manifestly unjust to sentence Lowe to the five-year
presumptive term without adjustment for his excellent prospects
for rehabilitation. We therefore find that the three-judge panel
fully considered the rehabilitation issue and was not clearly
mistaken in reaching its decision.
Lowe next contends that the three-judge panel erred in
deciding that manifest injustice would not result from imposing
the five-year presumptive term. We have no reason to question
Judge Johnstone's finding that Lowe was a good citizen with
excellent prospects for rehabilitation, who was angered and
frustrated by an act of vandalism, and who was remorseful for his
crime. Judge Johnstone found this to be a difficult case and
properly referred it to a three-judge panel. However, the fact
remains that this was a serious incident resulting in the death
of a young man. The legislature has mandated a five-year
presumptive term for a first felony offender convicted of
manslaughter. Courts may deviate from presumptive sentences only
when there are good reasons to do so. Juneby v. State, 641 P.2d
823, 829 (Alaska App. 1982) modified on other grounds, 665 P.2d
30 (Alaska App. 1983).
In a society in which ownership of deadly weapons is
common, people have a right to expect responsible use of those
weapons. Here, the tragic consequences of Lowe's reckless
actions were entirely foreseeable. In anger and frustration,
Lowe emptied his revolver at several fleeing persons who
presented no danger to him. Lowe's gunfire killed Clyde Thompson
and jeopardized the lives of others in the parking lot and in the
nearby Samovar Inn. A three-judge panel considering these facts
could properly conclude that, in spite of Lowe's good record and
outstanding prospects for rehabilitation, the seriousness of this
offense warranted the imposition of the five-year term.
The sentence is AFFIRMED.
_______________________________
1. Since the court found the existence of two
aggravating factors, Judge Johnstone was authorized to impose a
term of imprisonment between five and twenty years and was also
authorized to consider Lowe's excellent prospects for
rehabilitation in setting Lowe's sentence within that range.
