NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH M. RUDDEN, )
) Court of Appeals No. A-4769
Appellant, ) Trial Court No. 1KE-S92-41CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1371 - September 30,
1994]
Appellee. )
________________________________)
Appeal from the Superior Court, First
Judicial District, Ketchikan, Thomas E.
Schulz, Judge.
Appearances: David B. Koch, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
M. Hora, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
A jury convicted Joseph M. Rudden of attempted first-
degree murder. AS 11.41.100(a)(1); AS 11.31.100(a). Attempted
first-degree murder is an unclassified felony, punishable by a
minimum term of five years and by a maximum term of ninety-nine
years. AS 12.55.125(b). Superior Court Judge Thomas E. Schulz
sentenced Rudden to serve thirty-five years in prison. Rudden
contends that this sentence is excessive.
Rudden was convicted of attempted first-degree murder
for shooting a service station mechanic twice at close range,
once in the chest and once in the hip. Rudden's victim suffered
severe and lasting injuries as a result of the shooting. The
state's evidence established that the shooting was virtually
unprovoked. In convicting Rudden of the offense, the jury
rejected his claim of self-defense and declined the option of
convicting him of lesser- included offenses ranging from first-
through fourth-degree assault.
Rudden was forty-eight years old at the time of the
offense. Although nominally a first felony offender, Rudden had
an extensive criminal history. Between 1966 and 1990, Rudden was
convicted of theft-related offenses on five occasions. In 1973,
he was convicted of assaulting a police officer and assault with
a deadly weapon. He repeatedly absconded from probation on the
latter charge. When Rudden committed his current offense, three
misdemeanor assault charges were pending against him in the state
of Washington.
A pretrial psychiatric evaluation discloses that Rudden
"probably has an antisocial personality disorder" and notes that
he "becomes angry and threatening when he perceives himself to be
threatened or when others do not act according to his
wishes. . . ." While incarcerated in the interim between his
arrest on January 9, 1992, and his sentencing almost a year
later, Rudden amassed an institutional record of repeated violent
outbursts. As an institutional probation officer incisively
noted: "[B]asically, Mr. Rudden has a short fuse."
In imposing sentence, Judge Schulz emphasized the
serious and unprovoked nature of Rudden's crime. The judge also
considered Rudden's criminal record and poor performance on
probation, which, although "spread out over a period of time,"
demonstrated "that he has had a significant problem, a
significant difficulty over the years in complying with the law."
In Judge Schulz' view, Rudden "was well aware of what he was
doing when he took the gun out and pulled the trigger." The
judge noted that Rudden had demonstrated that "when he gets mad,
he's dangerous." These factors led Judge Schulz to assess
Rudden's potential for rehabilitation as follows: "I don't think
it's very good in this case."
The judge thus elected to downplay rehabilitation and
give priority to the goals of deterrence and community
condemnation. The state requested that Rudden be sentenced to a
term of fifty years' imprisonment. Judge Schulz rejected the
state's request, finding that a fifty-year term would be
excessive. Rudden, for his part, compared his offense to a first-
degree assault. First-degree assault is a class A felony; had
Rudden been convicted of the offense, he would have been subject
to a presumptive term of seven years and to a maximum term of
twenty. Rudden characterized his case as a "significantly
aggravated first-degree assault case" and urged the court to
determine an appropriate sentence based on this characterization.
Judge Schulz refused Rudden's attempt to liken his
conduct to an aggravated first-degree assault, commenting that
it would be entirely improper, it would
do substantial injustice to the Chaney
criteria to treat this case as an aggravated
first-degree assault, both because of the
nature of the offense and because I think
this court would be dealing kind of high-
handedly with the jury verdict in this case.
Judge Schulz sentenced Rudden to a term of thirty-five years.
On appeal, Rudden takes issue with Judge Schulz'
failure to give greater weight to rehabilitation as a sentencing
goal. However, determining the priority and relationship of the
various goals of sentencing is primarily a matter for the
sentencing court; the court need not emphasize rehabilitation in
all cases, or even in all cases involving first offenders.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). The record
supports Judge Schulz' conclusion that Rudden's prospects for
rehabilitation are relatively poor. Given the seriousness of
Rudden's crime, Judge Schulz was not clearly mistaken in deciding
to emphasize sentencing goals other than rehabilitation.
Rudden next urges us to bear in mind that, until 1988,
attempted first-degree murder, like first-degree assault, was a
class A felony and was punishable by a maximum term of only
twenty years' imprisonment. Rudden further argues that the
legislature's decision to increase the maximum penalty for
attempted first-degree murder "does not necessarily establish a
legislative intent to increase sentences for those offenses
across the board." Williams v. State, 809 P.2d 931, 937 (Alaska
App. 1991). This argument has little actual bearing on the
outcome in Rudden's case, regardless of its accuracy.1
Assuming that the legislature's upgrade of attempted
first-degree murder from a class A felony to an unclassified
felony did not necessarily signal its desire for an across-the-
board upgrade in sentencing for the crime, the upgrade appears to
have been intended at least to reflect the exceptionally broad
range of conduct encompassed within the definition of attempted
first-degree murder and the consequent need for a correspondingly
broad range of sentencing alternatives.
At one extreme, an attempted first-degree murder might
cause no injury at all to the victim and might involve conduct
falling far short of any immediate threat of deadly harm -- the
type of slight step beyond mere preparation that minimally
qualifies as an attempt. By contrast, at the opposite extreme,
an attempted first-degree murder might consist of a completed act
of calculated deadly force that, through no lack of effort or
intent by the offender, happens to fall slightly short of the
mark, causing lasting and near-fatal injuries instead of death.
While the legislature may have contemplated little
change in sentencing practices for typical attempts -- cases
falling in the middle of this spectrum -- its decision to
reclassify attempted first-degree murder was plainly meant to
diminish sentencing discretion at the low end of the spectrum,
where a mandatory minimum term is now prescribed, and to provide
significantly greater leeway at the high end, where the maximum
term is now equivalent to the maximum available for the completed
crime of murder. The underlying reason for the legislature's
decision to authorize similar maximum penalties for attempted
murder and murder is not difficult to discern. As the gap
between attempt and completion narrows, the justification for
disparate treatment of an offender convicted of attempted murder,
on the one hand, and an offender convicted of the completed
crime, on the other, diminishes commensurately; as the crimes
grow similar, so should the sentences.
We certainly do not suggest that attempted murderers
and murderers should be treated alike, even in extreme cases of
attempt. An offender convicted of attempted murder deserves to
be sentenced for that crime, not for the completed crime of
murder; due regard must always be given to the paramount sanctity
our law accords to the value of human life and to the fact that
an attempted murder does not involve the taking of a life. Yet
when an all-but-completed act of first-degree murder fortuitously
skirts death, inflicting grave and lasting injuries instead,
there is sound reason to conclude that the offender convicted of
attempted first-degree murder deserves a sentence falling closer
to that which would have been appropriate for the completed crime
than to that which would have been appropriate for a lesser form
of assault.
Judge Schulz' sentencing remarks establish the judge's
recognition of the significance of the fact that Rudden's victim
had not been killed -- that Rudden had committed and was to be
sentenced for attempted murder, not murder. Nevertheless, in
terms of both conduct and harm, Rudden's crime verged on a
completed act of murder and unquestionably fell near the most
serious extreme for attempted first-degree murder. Judge Schulz
also recognized this fact. Under these circumstances, the judge
was not clearly mistaken in declining to treat Rudden's crime as
merely an aggravated case of first-degree assault.
Rudden further argues that his thirty-five-year term is
excessive in light of Sam v. State, 842 P.2d 596 (Alaska App.
1992). In Sam, another attempted first-degree murder case, we
approved a sentence of forty-five years with fifteen years
suspended. Our decision emphasized that, although a nominal
first offender, Sam was awaiting sentencing on a prior felony
assault charge when he committed the attempted murder. We also
noted that Sam's motives for the attempted murder and the prior
assault were "seemingly incomprehensible." Sam, 842 P.2d at 603.
Judge Schulz paid considerable attention to Sam in
imposing Rudden's sentence, noting that the two cases were
comparable in many respects. Rudden maintains, however, that
Judge Schulz failed to recognize significant differences between
the two cases. In particular, Rudden points out that Sam was
awaiting sentencing on another felony assault charge when he
committed his offense, whereas Rudden merely had three pending
misdemeanor assault charges, which had not yet been resolved.
Moreover, although Rudden has previously been convicted of a
felony assault, that conviction occurred almost twenty years
previously; the sentencing record is unclear as to whether the
offense would amount to a felony under current law. Finally,
Rudden notes that his own conduct was not as inexplicable and
irrational as Sam's. In view of these distinc- tions, Rudden
argues that Judge Schulz was clearly mistaken in sentencing him
to a term of unsuspended incarceration that is five years longer
than the unsuspended portion of the sentence Sam received.
Rudden's comparison of his case to Sam's misses the
mark. The ultimate question in the present case is whether
Rudden's thirty-five-year term is clearly mistaken. Comparison
with similar cases is useful in resolving this question, but is
not determinative. To determine whether Rudden's sentence is
clearly mistaken, the precise issue we must resolve is whether
the totality of circumstances peculiar to Rudden's case places
his sentence within "a permissible range of reasonable sentences
which a reviewing court, after an independent review of the
record, will not modify[.]" State v. McPherson, 855 P.2d 420,
422 (Alaska 1993) (quoting State v. Bumpus, 820 P.2d 298, 305
(Alaska 1991)).
The fact that Rudden received an unsuspended term that
is five years longer than Sam's under circumstances that were
perhaps marginally more mitigated than those in Sam's case does
not, in itself, provide a compelling basis for concluding that
Rudden's sentence is clearly mistaken -- that it exceeds the
permissible range of sentences that are reasonable in light of
the totality of the circumstances in this case. In Sam, while we
approved as not clearly mistaken a sentence of forty-five years
with fifteen years suspended, nowhere did we indicate that a
longer term would have been impermissible.2
The record establishes that, in imposing Rudden's
sentence, Judge Schulz was aware of and fully considered the
distinctions between Rudden's case and Sam's. Having
independently reviewed the entire sentencing record, we conclude
that the sentence imposed below was not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The sentence is AFFIRMED.
_______________________________
1. We note that there is sound reason to question the
accuracy of this argument in the context of the amended first-
degree murder statute. The legislature's decision to enact a
substantial increase in the maximum penalty for attempted first-
degree murder might, standing alone, indicate nothing more than a
desire to make higher sentences available in the most serious
cases of attempted first-degree murder. However, the
legislature's decision to require a mandatory minimum sentence of
five years' imprisonment, a provision that governs even the most
mitigated cases, necessarily reflects a significantly broader
legislative intent.
2. Nor have we found other cases suggesting that Rudden's
sentence is excessive. This court has not previously had
occasion to contemplate an appropriate benchmark term for
attempted first-degree murder. Indeed, Sam appears to be the
only published sentence appeal reviewing an attempted first-
degree murder sentence since the 1988 amendment making the
offense an unclassified felony.
In a number of unpublished decisions, however, we have reviewed
sentences for the now unclassified felony of attempted first-
degree murder. See Sauve v. State, Memorandum Opinion and
Judgment No. 2837 (Alaska App., December 15, 1993) (50 years with
20 years suspended for attempted first-degree murder); Jimenez v.
State, Memorandum Opinion and Judgment No. 2763 (Alaska App.,
August 11, 1993) (40 years for first felony offender convicted of
attempted first-degree murder); Pruitt v. State, Memorandum
Opinion and Judgment No. 2655 (Alaska App., March 31, 1993) (45
years with 10 years suspended for second felony offender
convicted of attempted first-degree murder, first-degree assault,
and third-degree assault); Jackson v. State, Memorandum Opinion
and Judgment No. 2565 (Alaska App., December 9, 1992) (36 years
with 5 years suspended for third felony offender convicted of
attempted first-degree murder, attempted first-degree assault,
fourth-degree assault, and probation revocation for two
burglaries).
Because these decisions are unpublished and have no
precedential effect, citation to or reliance on them for any
proposition of law would be inappropriate. See Alaska Appellate
Rule 214(d). Nevertheless, viewed collectively as expressions of
historical fact, our unpublished decisions are reflective of past
sentencing practices; like other collections of empirical
sentencing data, they can provide the necessary context for a
rough estimate of how a given sentence compares to sentences
previously imposed for a particular crime. When viewed in this
manner, these decisions can play a helpful role as a resource for
identifying seemingly exceptional sentences that warrant a
heightened level of scrutiny. Viewing Rudden's case in the
context of our past decisions, we find no cause for suspicion:
Rudden's sentence appears unremarkable.
