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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES D. BROWN, )
) Court of Appeals No. A-6439
Appellant, ) Trial Court No. 3AN-95-1065 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1620 - February 19, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, John E. Reese, Judge.
Appearances: Ronald A. Offret, Aglietti &
Offret, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
STEWART, Judge, dissenting in part.
James D. Brown stands convicted of second-degree murder.
Superior Court Judge John E. Reese sentenced Brown to serve 55
years in prison, a sentence considerably more severe than the 20-
to 30-year benchmark range established by this court in Page v.
State.1
In our prior decision in this case2, we vacated Brown's
sentence and directed the superior court either to impose a
sentence within the Page benchmark range or else explain why
Brown's sentence should exceed the benchmark range to this degree.
Judge Reese reconsidered Brown's sentence and again imposed a 55-
year prison term.
Brown now renews his sentence appeal; he contends that
his 55-year sentence is excessive. For the reasons explained here,
we agree with Brown and we therefore reverse his sentence.
Underlying Facts
Brown was a cocaine dealer. On February 7,
1995, Brown went to the home of his long-time friend, Jas
Dixson, to collect the money that Dixson owed for some
cocaine that Brown's associate had previously delivered
to Dixson. Dixson offered Brown approximately $2000 for
the cocaine. This was apparently less than the agreed-
upon price, but Dixson claimed that the delivery had been
"short" (that is, Dixson claimed that he had not received
the full weight of cocaine). Brown offered to make good
the difference, but Dixson declined.
At some point during this discussion, Dixson
produced a handgun and placed it on the counter beside
him. Brown grabbed the gun and aimed it at Dixson.
About this time, Dixson's wife came downstairs and saw
what was happening. When she interposed herself between
the two men, Brown raised the gun over her shoulder. At
this point, the weapon discharged; the bullet struck
Dixson in the head and killed him. While Dixson's wife
called 911, Brown fled the residence.
Brown was indicted for first-degree murder,
but the authorities could not find him. Brown eventually
surrendered himself several months later. At trial,
Brown asserted that he had grabbed the weapon from the
counter to protect himself. He contended that he had not
meant to shoot Dixson - that the gun went off accidently
when Dixson's wife came between the two men and jostled
or struck Brown. A superior court jury acquitted Brown
of first-degree murder but found him guilty of second-
degree murder.
Brown was 24 years old when he committed this
murder. He had no prior criminal record.
Judge Reese's Initial Sentencing Analysis
At Brown's first sentencing, the State argued
that Brown's offense was aggravated by two of the factors
listed in AS 12.55.155(c): (c)(4) - that Brown used a
dangerous instrument in the commission of the offense;
and (c)(10) - that Brown's offense was among the most
serious second-degree murders. Judge Reese recognized
that aggravating factor AS 12.55.155(c)(4) applied to
Brown's case because Brown committed the homicide by
means of a firearm. However, the judge concluded that
this aggravating factor should not affect Brown's
sentence, since second-degree murders are generally
committed by the use of dangerous instruments. Regarding
the second proposed aggravator, Judge Reese rejected the
notion that Brown's offense was among the most serious
second-degree murders. The judge concluded that the
"really serious second-degree murder[s]" reflected in
past reported cases were "well beyond the nature of
[Brown's] case".
Having rejected the State's contention that
Brown's crime was aggravated under AS 12.55.155(c), Judge
Reese then gave his own view of the offense:
Here we have friends of some duration who
were apparently involved in drug sales, with
substantial [amounts of] money changing hands.
... There was discussion about being short
on the drug deal ... . I [don't] think it
takes a great deal of imagination to conclude
that [this] was ... a tension-producing
discussion. People don't talk about drugs
that way, people don't trade wads of money
that way, people don't refuse to turn cocaine
over without there being tension generated.
[These] people knew each other, but this
was a business discussion. This was an
unpleasant business discussion - because
business wasn't working smoothly, people
weren't doing what they were supposed to do.
... This is the setting in which the events
began.
Judge Reese initially declined to resolve the
question of how Brown had obtained the
handgun. The judge merely noted that
"[h]owever he got it - whether he brought it
[to Dixson's house, or] whether Mr. Dixson
pulled it out of the drawer and slapped it
onto the counter - Mr. Brown ended up with
the gun." But then Judge Reese proceeded to
analyze Brown's culpability under the
assumption that the victim, Dixson, was the
one who produced the handgun:
[Brown] grabbed [the gun], ... he grabbed
it on purpose, intentionally, at a time after
Jas Dixson had put it down on the counter, at
a time when Jas Dixson was sitting down. Mr.
Brown intentionally grabbed the gun to grab
control of the situation[.] ... [A]nd then
Jennelle Dixson came in and wrested control of
the situation from everybody else. Mr. Brown
... was pointing the gun intentionally [and]
the gun went off, possibly or even probably
because Jennelle Dixson inserted herself into
the controversy. ... Maybe it wasn't Mr.
Brown['s] intention to shoot the gun at that
moment, maybe it wasn't his intention to ever
shoot the gun, but he intentionally took the
gun, he intentionally pointed the gun, he
intentionally put ... his finger on the
trigger and created a situation that was very,
very likely to cause someone's death. And
someone died.
This is not a worst case; this is not a
first-degree murder case. Nor was this an
innocent accident, or an accident mitigated by
a lot of circumstances. This death was a
predictable [result] of using a firearm to
gain control in a discussion. A man is dead,
[and] two families are permanently devastated
as a result of it.
Judge Reese then addressed the
sentencing goals codified in AS 12.55.005.
The judge concluded that Brown's sentence
should not emphasize rehabilitation because
Brown "persist[ed] ... [in blaming Jennelle
Dixson and] in denying the magnitude of his
conduct". The judge also concluded that
Brown's sentence should not emphasize
deterrence: he noted that Brown had acted
impulsively, and he expressed the opinion that
impulsive crimes of violence could not really
be deterred.
Judge Reese concluded that the main
sentencing goals in Brown's case should be
isolation of the offender and reaffirmation of
societal norms. The judge reached this
conclusion because Brown had involved himself
in the drug trade and had used a firearm to
enforce his rights in a drug sale. These
acts, Judge Reese declared, proved that Brown
was "a dangerous man".
Judge Reese recognized that Brown's
prior history was "fairly good". Even so,
Judge Reese concluded that Brown should
receive a sentence of 55 years' imprisonment.
Judge Reese's Analysis on Remand
As explained above, we vacated Brown's
sentence in our earlier decision and we directed Judge
Reese either to sentence Brown within the Page benchmark
range (20 to 30 years to serve) or else to explain more
fully why Brown should receive a sentence substantially
more severe than this benchmark. Upon reconsideration,
Judge Reese decided to re-impose the 55-year sentence.
The judge found that Brown was "not a typical second-
degree murder defendant":
This murder occurred as part of the
enforcement of financial responsibility in a
cocaine enterprise. Mr. Brown supports
himself by the sale of cocaine. [At trial,
he] lied to the jury and the court about [his
source of income,] and [he] did not accept
responsibility for the murder. When released,
he seems likely to re[-]enter the [drug]
business, and to again represent a threat to
the lives of others in the community.
Isolation is [thus] very important.
Judge Reese expressed his view that
the Page benchmark was "dicta" and that it
therefore did not govern his sentencing
decision. However, the judge also found that
Brown's offense was "sufficiently
extraordinary to justify departure from the
Page benchmark":
James Brown committed second[-]degree murder
as part of a commercial drug sale collection
confrontation, [an event] which is likely to
recur if he isn't off the street. ... His
[55-year] sentence is 8 years beyond the
midpoint sentence authorized by the
legislature. He would be released in as few
as 10 years if given a 30[-]year sentence. He
is too dangerous to be released so soon ... .
The Page Benchmark
The ultimate question presented here is
whether the superior court was clearly mistaken when it
sentenced Brown to serve 55 years for this second-degree
murder.3 Our decision in Page v. State is the starting
point for analyzing Brown's sentence.
In Page, this court reviewed past second-
degree murder sentences and established a benchmark
sentencing range for this offense. We concluded that "[a
person] convicted of [second-degree murder] should
[typically] receive a sentence of from twenty to thirty
years [to serve]".4
When Judge Reese explained his renewed
decision to sentence Brown to serve 55 years, he
characterized the Page benchmark as dictum. Judge Reese
pointed out that Page himself received 99 years to serve,
a sentence which this court affirmed. From this, Judge
Reese concluded that any language in Page about a 20- to
30-year benchmark sentencing range was unnecessary to
this court's decision.
Whatever one might conclude from reading Page
in isolation, this court's later sentencing decisions
make it clear that the Page benchmark range governs
sentencing in second-degree murder cases.5 Indeed, our
prior decision in Brown's case was specifically premised
on the vitality and applicability of the Page benchmark
range. We vacated Brown's sentence and directed the
superior court to reconsider the sentence precisely
because Judge Reese failed to explain his "departure from
the Page benchmark".6
As is evident from the result in Page itself
(where this court affirmed a 99-year sentence for second-
degree murder), a benchmark sentencing range does not
create fixed sentencing boundaries. Rather, a benchmark
range is designed to "provide assistance and guidance to
sentencing [judges] faced with difficult sentencing
decisions" by furnishing a numerical "starting point[]
for individualized [sentencing] analysis in each case".7
Benchmarks are intended to help courts avoid
unjustified disparity in sentencing by forcing judges to
articulate reasons for imposing atypical sentences. When
a sentencing judge "decides that an offender deserves a
sentence which is significantly different from sentences
previously given to similarly situated offenders", the
judge is required to "find some legitimate basis for the
difference" - that is, a basis related to the sentencing
criteria originally announced in State v. Chaney8 and now
codified in AS 12.55.005.9 The benchmark
promote[s] careful consideration of whether
actual differences exist between [the] case
[before the court] and prior, generally
similar cases, and encourage[s] [sentencing]
courts to [clarify] their reliance on those
differences when they do exist.
Williams, 809 P.2d at 934. And, because
sentencing judges are required to articulate
their reasons for imposing sentences above or
below the benchmark, the benchmark fosters
another goal: better-informed appellate
review of sentencing decisions.
A typical offender who commits a
typical offense should receive a sentence
within the benchmark range. Mitigating
circumstances can justify a sentence below the
benchmark range, while aggravating
circumstances can justify a sentence above the
benchmark range.10 There are few legal
restrictions on the types of factors that a
sentencing court can consider when assessing
whether a particular sentence should fall
outside the benchmark range. As we stressed
in Williams, "any sound reason may be relied
on to differentiate one case from another."11
But the benchmark does serve as an anchor: a
sentencing judge must have sound reasons
before imposing a sentence that varies from
the benchmark.
Our Analysis of Brown's Sentence
Brown's 55-year sentence is a substantial
upward departure from the 20- to 30-year benchmark range
established in Page. As explained above, the superior
court offered various reasons why Brown's conduct should
be categorized as atypically serious. But having
examined the record, we conclude that these reasons are
unconvincing.
As noted above, Brown was a young offender
with no prior criminal (or juvenile) record. After the
homicide, he hid from the authorities, but he eventually
turned himself in voluntarily.
Judge Reese sentenced Brown under the
assumptions that (1) Jas Dixson was the one who produced
the handgun and placed it on the counter, and (2) Brown
had not intended to shoot Dixson. Judge Reese found,
nevertheless, that Brown acted culpably because he took
up the weapon, put his finger to the trigger, and pointed
the gun at Dixson. Even though Judge Reese found that
the weapon was fired accidentally, Judge Reese concluded
that the homicide was aggravated because (1) Brown was a
drug dealer and (2) Brown had used a firearm to gain
control in a dispute over a drug sale.
If Judge Reese had found that Brown was a drug
dealer who generally used firearms to intimidate his
clients and enforce drug contracts, then we would uphold
Judge Reese's conclusion that Brown's offense constituted
an aggravated instance of second-degree murder. But
Judge Reese found the opposite. When he sentenced Brown,
Judge Reese assumed that the gun belonged to Dixson and
that it was Dixson who produced the gun and placed it on
the counter, apparently for the purpose of intimidating
Brown or otherwise gaining control of the situation.
Thus (under Judge Reese's view of the case), even though
Brown came to Dixson's house to obtain payment for a drug
transaction, Brown did not initiate the use of force or
the threat of force. Although Brown subsequently grabbed
Dixson's gun to gain control of the situation, Brown was
responding to Dixson's act; it was Dixson who first
introduced an element of deadly force into the
discussion.
Judge Reese also concluded that there was
little hope for Brown's rehabilitation. He reached this
conclusion based on his findings that Brown was a drug
dealer, that Brown had lied under oath about his sources
of income, and that Brown persisted in minimizing his
responsibility for the homicide by blaming Jennelle
Dixson for what had happened.
Judge Reese's third finding is problematic -
his finding that Brown was trying to minimize his
responsibility for the homicide by blaming Jennelle
Dixson. To the extent that Brown blamed Jennelle Dixson
for what happened, this conclusion is supported by Judge
Reese's own findings at sentencing. We note, in
particular, Judge Reese's findings that "Jennelle Dixson
came in and wrested control of the situation from
everyone else" and that "the gun went off, ... probably
because Jennelle Dixson inserted herself into the
controversy".
The record supports Judge Reese's first two
findings - that Brown was a drug dealer and that Brown
committed perjury at trial when asked to describe his
sources of income. Thus, there is some support for Judge
Reese's conclusion that Brown was likely to return to
drug dealing upon his release from prison. However,
under the facts of this case, Brown's likelihood of
returning to the drug trade does not support Judge
Reese's conclusion that Brown will pose a continuing
danger to the lives of his customers and associates.
Under the facts as found by Judge Reese, Brown did not
initiate the use of force; rather, he reacted
precipitously to a dangerous situation created by Dixson.
Moreover, Judge Reese concluded that even after Brown
grabbed the handgun and pointed it at Dixson, the
homicide probably would not have occurred if Jennelle
Dixson had not intervened.
In short, taking Judge Reese's view of the
evidence, Brown was a young drug dealer who was
unexpectedly confronted with a dangerous situation when
Jas Dixson - a customer who was also Brown's long-time
friend - pulled a gun during their discussion about an
alleged shortage in a previous delivery of cocaine.
Brown grabbed the gun and pointed it at Dixson, but he
did not intend to shoot Dixson and he probably would not
have fired the gun if he had not been distracted or
unnerved by the intervention of Jennelle Dixson.
This is not meant to minimize the seriousness
of Brown's conduct. Brown was convicted of second-degree
murder because the jury concluded that Brown acted with
manifest indifference to the value of human life.12 As
Judge Reese noted, "[a] man is dead, [and] two families
are permanently devastated as a result of it." But the
question before us is whether Brown's conduct, his
background, or a combination of these two factors
justifies a substantial departure from the Page benchmark
sentencing range of 20 to 30 years in prison. This
question must be answered by determining whether there is
sound reason to conclude, from Brown's conduct and/or his
background, that his offense is substantially more
serious than a typical second-degree murder.
In cases where death has resulted from
gratuitous or otherwise inexplicable acts of extreme
violence, we have upheld second-degree murder sentences
that substantially exceed the Page benchmark range. See,
for example, Page itself13, Faulkenberry v. State14,
Norris v. State15, Monroe v. State16, and Gustafson v.
State and Cheely v. State17. But Brown's conduct can not
realistically be likened to the conduct of the defendants
in these cases. Given the facts found by Judge Reese,
Brown's offense appears to be within the mainstream of
the unintended, extremely reckless homicides defined by
AS 11.41.110(a)(2).
For these reasons, we REVERSE Brown's
sentence. This case is remanded to the superior court
for resentencing. The superior court shall sentence
Brown to no more than 30 years to serve.
Footnotes
1 657 P.2d 850, 855 (Alaska App. 1983).
2 See Brown v. State, Memorandum Opinion No. 3815 (Alaska
App.; May 6, 1998).
3 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that sentencing decisions are to be affirmed on appeal
unless they are "clearly mistaken").
4 Page, 657 P.2d at 855.
5 See, for example, Cheely v. State, 861 P.2d 1168, 1179
(Alaska App. 1993); Norris v. State, 857 P.2d 349, 356, 357 (Alaska
App. 1993); Gustafson v. State, 854 P.2d 751, 763 (Alaska App.
1993); Sam v. State, 842 P.2d 596, 603 (Alaska App. 1992); Ross v.
State, 808 P.2d 290, 291 (Alaska App. 1991); Odom v. State, 798
P.2d 353, 356 (Alaska App. 1990).
6 Brown v. State, Memorandum Opinion No. 3815 (Alaska App.;
May 6, 1998), slip opinion at 15.
7 Williams v. State, 809 P.2d 931, 933 (Alaska App. 1991).
8 477 P.2d 441, 443-44 (Alaska 1970).
9 Williams, 809 P.2d at 935.
10 See Page, 657 P.2d at 855.
11 809 P.2d at 934.
12 See AS 11.41.110(a)(2).
13 657 P.2d at 853-55. The defendant in Page had a substantial
criminal record. Id. at 853-54. Page repeatedly stabbed his
victim, then tied him up and left him to die. Id. at 854. This
court upheld the finding that Page was a "worst offender", and we
affirmed Page's 99-year sentence. Id. at 855.
14 649 P.2d 951 (Alaska App. 1982). The defendant in
Faulkenberry spent the night drinking with a woman he met in a bar.
When they returned to the woman's apartment, the woman passed out
on a sofa. Faulkenberry then poured lighter fluid around the
apartment, set the fluid on fire, watched until the flames reached
a height of three feet, and then left - knowing that the woman was
unconscious and likely to die. Id. at 953. This court upheld
Faulkenberry's 60-year sentence. Id. at 956-57.
15 857 P.2d 349 (Alaska App. 1993). The defendant in Norris
was fighting with his domestic partner. He picked up a rifle, hit
her in the head and knocked her to the floor, then held her down
and pointed the rifle at her head. The weapon fired when the
victim struggled to escape. Id. at 352. We upheld Norris's 50-
year sentence. Id. at 356-58.
16 847 P.2d 84 (Alaska App. 1993). The defendant in Monroe was
mentally ill. He killed his father by stabbing him thirty-three
times. Id. at 85. We upheld Monroe's 60-year sentence. Id. at
92-93.
17 854 P.2d 751 (Alaska App. 1993), and 861 P.2d 1168 (Alaska
App. 1993), respectively. The defendants in Gustafson and Cheely
decided to shoot a motorist who allegedly cut in front of their car
on the highway. Gustafson shot the motorist with a rifle after
Cheely positioned his car for the shot. Gustafson, 854 P.2d at
754. We upheld Gustafson's 65-year sentence, 854 P.2d at 763-67,
and Cheely's 60-year sentence, 861 P.2d at 1178-1180.
STEWART, Judge, dissenting in part.
I concur with majority's decision to remand
the case to Judge Reese for re-sentencing because, on
this record, I agree with the conclusion of the majority
that Brown's sentence is clearly mistaken.1 Judge
Reese's findings at sentencing and his supplemental
findings on remand do not meet our requirements for a
substantial departure from the Page benchmark. Having
gone that far, my judgment is we need go no farther.
A comparison of Brown's conduct with the
conduct of defendants in other reported cases leads to
the conclusion that Brown's crime appears within the
mainstream of second-degree murders as defined by AS
11.41.110(a)(2). I agree with that part of the
majority's analysis. Nevertheless, an individualized
sentencing process must also examine the defendant.
Perhaps the facts of a defendant's crime may not justify
a departure from Page, but the inability to reform a
dangerous defendant might.
In some cases discussed by the majority where
the defendant's sentence for second-degree murder
substantially exceeded the Page guideline, we noted the
gratuitous and inexplicable nature of the homicides.2 In
our review of the sentence in another irrational
homicide, we also reasoned that a defendant's
unfathomable conduct can engender "grave doubt as to his
capacity for reform and provides strong reason to think
that he will pose a serious, continuing threat to
society."3
Yet it does not necessarily follow that
conduct, such as Brown's, that is understandable, though
no less reprehensible than conduct that is baffling,
means that Brown is less of a threat to society and more
likely to reform. I think the more important inquiry, in
any case, must be whether the defendant will be a
continuing threat to society balanced against the
defendant's capacity for reform. Because I do not think
that our cases require a deranged or depraved homicide to
exceed the Page benchmark, I think that a thorough
analysis at sentencing that shows that the defendant will
continue as a threat to society and that the defendant
has little capacity for reform can justify an upward
departure from the Page benchmark.
Therefore, I dissent from the mandate that
Judge Reese conduct Brown's re-sentencing with a thirty-
year ceiling. While I agree that Brown's 55-year term is
clearly mistaken on the present record, I also conclude
that we should not limit the maximum potential sentence
to the Page benchmark.
Footnotes
1 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
2 See Faulkenberry v. State, 649 P.2d 951 (Alaska App. 1982);
Ridgley v. State, 739 P.2d 1299 (Alaska App. 1987).
3 Boziel v. State, 864 P.2d 553, 557 (Alaska App. 1993).
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