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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID W. PICKARD, )
) Court of Appeals No. A-6875
Appellant, ) Trial Court No. 3AN-97-6116 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1607 - October 16, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Tracy Shikles, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. James J. Fayette, Assistant District Attorney, Susan A.
Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to review David W. Pickard's
sentence for third-degree assault. This offense is a class C felony
with a maximum sentence of 5 years' imprisonment. Pickard, who is
a first felony offender, received a sentence of 5 years with 1 year
suspended (4 years to serve) a sentence that exceeds the 3-year
presumptive term for a third felony offender. Pickard contends that
this sentence is excessive. However, as explained below, we
conclude that the sentence is justified by the facts of Pickard's
case and by Pickard's history of repeated serious violence against
the same victim.
On August 6, 1997, Pickard attacked his ex-wife, L.P..
Pickard was angry because he could not find his wallet; he had in
fact misplaced it, but he believed that L.P. had stolen it. Pickard
threw his ex-wife to the floor, and then he grabbed a knife from the
kitchen cutlery block. Climbing on top of L.P. with the knife in
his hand, he straddled her torso and announced that he was going to
kill her.
Pickard repeatedly stabbed at L.P.'s head and chest. L.P.
was able to ward off these blows with her hand. (She sustained
several cuts in the process.) Fortunately, L.P.'s son entered the
room at this point. When he screamed for Pickard to stop, Pickard
broke off his attack and got off L.P..
L.P. immediately went to the telephone, intending to call
the police, but Pickard grabbed the telephone from her, tore the
cord from the wall, and threw the handset into another room. He
then kicked L.P., again knocking her to the floor. Pickard climbed
on top of L.P. and punched her several times in the face. Having
done this, Pickard got up and began to cry. L.P. got to her feet,
retrieved the telephone, and summoned the police.
Based on this conduct, Pickard was charged with second-
degree assault and interfering with a report of a crime involving
domestic violence. [Fn. 1] These charges were dismissed when
Pickard agreed to plead no contest to third-degree assault. [Fn.
2]
Pickard had a history of domestic violence against L.P..
In 1990, he was convicted of four counts of fourth-degree assault
for conduct that apparently would have supported more serious
charges. These four convictions stemmed from a series of incidents
that began on April 5, 1990.
On the afternoon of April 5th, Pickard came home drunk,
tore off L.P.'s underclothing, and announced that "[he] could rape
[her] if [he] wanted to". He then threatened to kill L.P. and their
four-month-old son. After making these threats, Pickard went to the
infant's crib, picked up the infant, and holding his hand to the
child's throat he announced that he was going to kill the child
and make L.P. watch. L.P. grabbed a pair of scissors and stabbed
Pickard; then she picked up the telephone to call the police.
Pickard (who was not seriously hurt) tore the receiver from L.P.'s
hand and struck her in the head with it. L.P. then fled to a
neighbor's house.
Based on this incident, L.P. obtained a restraining order
against Pickard. However, the two of them reconciled within days,
and Pickard moved back in.
On the afternoon of April 17th, L.P. again contacted the
police this time, from the emergency room of Humana Hospital.
The incident began the previous day (April 16th), when Pickard came
home after attending a "male awareness" class. Pickard brought a
twelve-pack of beer home with him, and as he drank he became upset.
Pickard told L.P. that he wanted a divorce. When she readily agreed
to this, Pickard became even more upset. L.P. called the Anchorage
police, and officers came to the home. Pickard left the residence,
but he returned after the police left.
Upon his return, Pickard threatened to kill L.P.. She
again summoned the police. When the officers arrived, Pickard
convinced them that he would willingly leave the residence as soon
as he collected his clothes; the officers departed in reliance on
this promise. However, soon after the officers left, Pickard
announced that he was going to kill the baby.
As Pickard started walking toward the child's room, L.P.
blocked his path. Pickard knocked her to the floor. He then
grabbed L.P.'s left leg and smashed it against a door and the wall
until he heard her bones break. Having immobilized L.P., Pickard
went downstairs, obtained a filleting knife from the kitchen, and
returned to his wife. He threatened to maim her and kill her. He
then forced her downstairs, where he held her prisoner for three
hours. During these hours, Pickard threatened to sexually assault
her, and he ran the point of the knife across her face, her torso,
and her crotch.
Despite her broken leg, L.P. made three attempts to
escape. The first two times, Pickard caught her and struck her
repeatedly in the torso and the crotch. On the third attempt, L.P.
managed to get to a neighbor's yard, where she screamed for help.
Pickard grabbed her and knocked her to the ground, but by then he
was calming down. He began telling L.P. how much he loved her; he
then turned around, walked back into the house, and went to bed.
L.P., too, went back into the house, where she stayed awake all
night to protect her baby. Pickard went to work the next day. L.P.
found the phone, called AWAIC (a shelter for abused women), and
arranged transportation to the shelter. When shelter personnel
observed L.P.'s injuries, they took her to the hospital emergency
room for treatment.
Even though Pickard's conduct apparently could have
supported more serious charges, he was convicted of four counts of
fourth-degree assault. He received a sentence of 360 days'
imprisonment with 240 days suspended (120 days to serve), and he was
ordered to complete both male awareness training and alcohol
treatment.
In 1995, Pickard was again convicted of criminal offenses
stemming from acts of violence against L.P., who by now was divorced
from him. On the afternoon of December 21st, Pickard came to L.P.'s
apartment; he was picking her up so they could go shopping together
for Christmas gifts for their child. After shopping, the two of
them went to a bar for a few drinks. Returning from the bar,
Pickard tried to convince L.P. to leave her current boyfriend. An
argument ensued. Pickard told L.P. to "shut up or he would ram the
car into a snow bank". When L.P. continued to argue with Pickard,
he did indeed run the car into a snow berm along the New Seward
Highway.
Pickard got out of the car and started yelling. L.P.
decided to stay inside the car, away from Pickard, so she locked all
of the doors. Seeing what L.P. had done, Pickard tried to get back
inside the car: he broke the side-view mirror and the window on the
passenger's door. A passerby stopped and gave L.P. a ride to the
police station.
After explaining to the police why she was there, L.P.
took a cab back to her apartment. She found Pickard and her
boyfriend waiting for her there. Pickard resumed his argument with
L.P.; as he became more worked up, he went to the kitchen and
grabbed a knife. Pickard held the knife to L.P.'s throat and
threatened to kill her. He then threw the knife in a corner. L.P.
went into the kitchen to get a glass of water. Pickard followed
her, took the glass from her, broke it, and then held one of the
shards against her throat, again threatening to kill her. At this
point, L.P.'s boyfriend went next door and summoned the police.
Pickard was originally charged with two counts of third-
degree assault, but these charges were dismissed in favor of two
misdemeanors: fourth-degree assault and third-degree criminal
mischief. Pickard was sentenced to 360 days' imprisonment with 200
days suspended (160 days to serve), and he was again ordered to
enter alcohol treatment. Pickard was on probation from these 1995
convictions when he committed the assault in the present case.
Pickard's present offense, third-degree assault, is a
class C felony. [Fn. 3] The maximum sentence for this crime is 5
years' imprisonment, and the presumptive terms for second and third
felony offenders are 2 years and 3 years, respectively. [Fn. 4]
Pickard was a first felony offender, but the State asked the
superior court to impose a sentence of greater than 2 years to serve
(the presumptive term for second felony offenders). In support of
that request, the State alleged four aggravating factors under
AS 12.55.155(c): (c)(8) that Pickard's criminal history included
aggravated or repeated instances of assaultive behavior; (c)(10)
that Pickard's offense was among the most serious within the
definition of third-degree assault; (c)(18)(A) that Pickard's
offense was a felony committed against a former spouse; and (c)(21)
that Pickard had a history of similar offenses. [Fn. 5]
Pickard conceded aggravators (c)(8), (c)(18)(A), and
(c)(21), but he disputed aggravator (c)(10). The State argued that
Pickard's offense was among the most serious third-degree assaults
because Pickard had actually committed second-degree assault as
defined in AS 11.41.210(a)(1); that is, the State asserted that
Pickard, acting with intent to injure his ex-wife, had caused injury
to her by means of a dangerous instrument (the knife). The defense
attorney disputed the State's characterization of the event; she
argued that, even though Pickard might have acted recklessly, the
evidence did not show that Pickard acted with intent to inflict
injury.
Superior Court Judge Milton M. Souter concluded that the
State had proved aggravator (c)(10). The judge noted that, when
Pickard attacked his ex-wife, Pickard declared that he intended to
kill her. Based on Pickard's statement and the conduct that
accompanied that statement, Judge Souter concluded that Pickard's
offense
clearly is a most serious instance of assault
in the third degree. In fact, it's substantially above that. I
think it's above [second-degree] assault. I think it's probably
closer to attempted murder than it is to anything else swinging
a knife around like that, [coupled] with a statement that he intends
to kill.
Pickard does not challenge Judge Souter's finding on appeal.
Having found these four aggravating factors, Judge Souter
advised the parties that he considered Pickard's case
"extraordinarily aggravated". The judge noted that Pickard had had
problems with his temper since he was a youngster. Pickard had
received repeated treatment for alcoholism and for anger management,
and yet he was back in court a third time for assaulting the same
victim, his former wife.
THE COURT: This defendant has done this
before. His behavior on this occasion, as well as [on the] two
prior occasions, was outrageous. There was an expressed intent to
kill this time. He had a weapon in his hand again this time that
could have killed the ... victim[.]
It's obvious to me that the defendant has
got some sort of ... emotional health problem that underlies this.
He's got some kind of horrible, deep-seated anger against women
maybe against children too, I don't know. And when he drinks, [it
pops] out; he's not able to hold it in. The alcohol removes his
inhibitions, and out it comes. And he's not able to stop drinking;
... he is an alcoholic.
Judge Souter declared that Pickard was a man "[with] a
short fuse [that] is quite easily lit, and at the end of that fuse
is something very explosive." The judge noted that prior
rehabilitative programs had failed to alter Pickard's violent
behavior and that probation had not been sufficient to restrain that
behavior. Judge Souter also stated that he did not have much
optimism about Pickard's chances for rehabilitation or his ability
to control himself once the criminal justice system's controls were
removed. The judge concluded that, if Pickard was released, his ex-
wife and at least one of his children would be "in extreme danger".
In sum, Judge Souter declared, Pickard's case was "the domestic
violence case from Hell, ... and it needs to be treated with the
seriousness that that [characterization] suggests."
Based on these findings, Judge Souter imposed a sentence
of 5 years with 1 year suspended 4 years to serve.
On appeal, Pickard first asserts that Judge Souter
violated the rule announced in State v. Wortham [Fn. 6] by imposing
a maximum sentence without finding that Pickard was a "worst
offender". [Fn. 7] This argument lacks merit. Although Judge
Souter sentenced Pickard to 5 years' imprisonment, he suspended 1
year of this sentence. Under Alaska case law, this is not a maximum
sentence. [Fn. 8]
Pickard argues that Judge Souter did not place sufficient
emphasis on the sentencing goal of rehabilitation. But a sentencing
judge bears primary responsibility for determining the priority and
relationship of the various sentencing goals in each case. [Fn. 9]
In Pickard's case, Judge Souter expressly considered Pickard's
potential for rehabilitation, and he found little reason to expect
a change in Pickard's behavior. Based on Pickard's prior similar
offenses, Pickard's repeated failed efforts at rehabilitation, and
Pickard's repetition of domestic violence while on probation, Judge
Souter concluded that Pickard's sentence should emphasize other
sentencing goals most notably, isolation, deterrence, and
reaffirmation of societal norms. We will not disturb Judge Souter's
decision unless it is clearly mistaken. [Fn. 10]
Having reviewed the record, we conclude that Judge Souter
was not clearly mistaken in emphasizing sentencing goals other than
rehabilitation. With particular regard to the sentencing goal of
isolating a defendant to protect the public, we have stated that
this goal
comes into play primarily in cases involving
offenders who have established themselves to be particularly
dangerous and incapable of rehabilitation, thereby demonstrating the
need for prolonged incarceration in the interest of public safety.
[Fn. 11]
Although this is Pickard's first felony conviction, his history of
assaults and failed rehabilitative efforts, coupled with the facts
of his present offense, all support Judge Souter's decision to
emphasize the sentencing goals of isolation, deterrence, and
reaffirmation of societal norms rather than rehabilitation.
Lastly, Pickard argues that his sentence violates what
Alaska cases have termed the "principle of parsimony" the notion
that a criminal sentence should be no more severe than necessary to
accomplish the objectives of sentencing codified in AS 12.55.005.
[Fn. 12] Pickard points out that his prior sentences for domestic
violence were considerably shorter 120 days to serve in 1990, and
160 days to serve in 1995. He argues that "lesser attempts at
deterrence should precede harsher attempts", and therefore, although
he might now deserve a more severe sentence than the ones he
received in the past, he nevertheless should have received something
shorter than 4 years to serve.
The principle of parsimony does not convert appellate
sentence review into a sentencing de novo. Sentence review is still
conducted under the "clearly mistaken" standard the principle that
there is a range of reasonable sentences that will not be disturbed
on appeal. [Fn. 13] The principle of parsimony does not supersede
this legal doctrine; rather, it declares that, "to the extent that
there is any doubt [concerning the appropriateness of a defendant's
sentence], that ... doubt [should] be resolved in favor of a
shorter, rather than a longer, sentence." [Fn. 14]
Pickard was forty-one when he was sentenced in this case
not a youthful offender. He has been convicted twice before of
assaulting his ex-wife assaulting her in ways remarkably similar
to the present offense. Despite his past convictions, his past
probations, and his past rehabilitative treatments, Pickard has
continued to engage in serious, explosive, and unreasoning violence
upon his former wife.
As explained above, although Pickard was convicted of only
misdemeanors for his prior assaults on L.P. and their child, his
underlying conduct could have supported felony assault convictions.
Speaking of Pickard's prior convictions and sentences, Judge Souter
declared that Pickard "[had] been treated much too leniently in the
past". The judge also found that Pickard would, for the foreseeable
future, continue to present a grave danger to his ex-wife unless he
was actively restrained. Given Judge Souter's findings regarding
Pickard's level of dangerousness and questionable prospects for
rehabilitation, and the consequent need to isolate and deter
Pickard, a substantial term of imprisonment does not violate the
principle of parsimony. [Fn. 15]
Moreover, we conclude that Judge Souter could properly
emphasize the need to re-affirm societal values in cases like
Pickard's. As noted above, Judge Souter found that Pickard's case
was extraordinarily aggravated. Although Pickard was a first felony
offender, his criminal history encompassed repeated armed assaults
on his ex-wife. Not only did these assaults result in injury to his
wife, but they were, almost without exception, accompanied by
threats to kill her (and, on one occasion, to kill her child as
well). Both the Alaska Legislature and this court have recognized
that domestic violence such as this represents a serious danger to
its victims and a significant harm to society at large.
Under AS 12.55.155(c)(18)(A), a felony assault is
aggravated if it was committed against the defendant's spouse, the
defendant's former spouse, or any other member of the defendant's
household. By enacting this aggravating factor, the legislature has
declared that felony assaults against spouses and former spouses are
to be considered atypically serious (all else being equal). We
further note that the legislature has limited the civil compromise
statute, AS 12.45.120(5), so that the victims of misdemeanor
domestic assaults can no longer reconcile with their attackers and
then demand dismissal of the criminal charges.
Both of these legislative actions embody the same concern
over domestic violence that this court expressed in State v. Huletz.
[Fn. 16] In Huletz, we recognized that assaults involving domestic
violence
occur with alarming frequency in our society,
often having devastating consequences. When a court imposes a
mitigated sentence in a domestic assault case that is not
particularly mitigated, it unduly depreciates the seriousness of
this type of criminal misconduct: such a sentence inevitably
creates the impression that domestic violence is a form of assault
which is somehow less worthy of societal condemnation (and therefore
somehow less serious) than other forms of assault. The appearance
that the justice system deems domestic assaults to be trivial can
only be exacerbated when unusually lenient treatment is accorded to
an offender with a prior criminal record.
Huletz, 838 P.2d at 1260-61.
In Huletz we also recognized the pervasive harm that
domestic violence works on our society:
A woman is beaten every 18 seconds and 4,000
battered women are killed every year in the United States.
Nationwide, more than one million abused women each year seek
medical assistance for injuries caused by battering. In Alaska, 26%
of adult women have been physically abused by a spouse sometime
during their lives and most of the battered women were abused at
least once a month. It is estimated that a minimum of 13,200 women
living in Alaska have required medical treatment by a doctor or
hospital for injuries sustained by abuse at some time in their life.
In 1990, fifty percent of female murder victims in Alaska were
killed by their husbands or boyfriends. More than half of all
homeless women are on the street because they are fleeing domestic
violence.
Huletz, 838 P.2d at 1260 n.3, quoting the 1992 annual report of the
Alaska Council on Domestic Violence and Sexual Assault (March 1992),
page 2.
In sum, although Pickard's sentence is concededly severe
for a first felony offender, we conclude that the record in this
case adequately supports that sentence. We do not find Pickard's
sentence to be clearly mistaken. [Fn. 17] Accordingly, the
sentencing decision of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.210(a)(1) and AS 11.56.745(a), respectively.
Footnote 2:
AS 11.41.220(a)(1)(B).
Footnote 3:
AS 11.41.220(d).
Footnote 4:
AS 12.55.125(e).
Footnote 5:
See AS 12.55.125(k); Brezenoff v. State, 658 P.2d 1359, 1362
(Alaska App. 1983); Austin v. State, 627 P.2d 657, 657-58 (Alaska
App. 1981) (in the absence of statutory aggravating factors or
extraordinary circumstances, a first felony offender must receive
a sentence more favorable than the presumptive term established by
the legislature for a second felony offender convicted of the same
crime).
Footnote 6:
537 P.2d 1117 (Alaska 1975).
Footnote 7:
Wortham, 537 P.2d at 1120; Napayonak v. State, 793 P.2d 1059,
1062 (Alaska App. 1990).
Footnote 8:
See Linne v. State, 674 P.2d 1345, 1357 (Alaska App. 1983);
Wertz v. State, 611 P.2d 8, 10 (Alaska 1980); Ferreira v. State, 602
P.2d 803, 806 (Alaska 1979).
Footnote 9:
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973).
Footnote 10:
Nicholas v. State, 477 P.2d 447, 448-49 (Alaska 1970).
Footnote 11:
State v. Huletz, 838 P.2d 1257, 1260 n.2 (Alaska App. 1992).
Footnote 12:
See Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985).
Footnote 13:
See Wentz v. State, 805 P.2d 962, 965 (Alaska 1991).
Footnote 14:
State v. Price, 740 P.2d 476, 483 (Alaska App. 1987).
Footnote 15:
See Newell v. State, 771 P.2d 873, 876 (Alaska App. 1989).
Footnote 16:
838 P.2d 1257 (Alaska App. 1992).
Footnote 17:
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
