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Lewandowski v. State (2/16/01) ap-1723
Lewandowski v. State (2/16/01) ap-1723
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts.
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN M. LEWANDOWSKI, )
) Court of Appeals No. A-7578
Appellant, ) Trial Court No. 3AN-S97-8370 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1723 - February 16, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Philip E. Shanahan, Assistant
Public Advocate, and Brant McGee, Public Advocate, Anchorage, for
Appellant. Mary Anne Henry, 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.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Jonathan M. Lewandowski was convicted of robbery in the
first degree, a class A felony. [Fn. 1] As a first felony offender
convicted of a class A felony, Lewandowski faced a presumptive
sentence of five years of imprisonment. [Fn. 2] Lewandowski
proposed a mitigating factor, that the conduct constituting his
offense was among the least serious conduct included in the
definition of the offense. [Fn. 3] He argued that the mitigating
factor applied because he had used an inoperable pellet gun in the
robbery. Superior Court Judge Michael L. Wolverton rejected the
mitigating factor and imposed the five-year presumptive sentence.
Lewandowski appeals from this decision. We affirm.
Lewandowski and his accomplice, James Alan Bradley, were
sixteen years old at the time of the offense. At approximately 4:30
a.m. on October 15, 1997, Lewandowski and Bradley approached Micah
S. Whittaker, who was working at a cash register at the Safeway
grocery store in the Northway Mall. Lewandowski opened his coat,
showed Whittaker a handgun, and stated, "Give me the fucking money."
According to Whittaker, as Lewandowski was pulling the gun out of
his pants, Whittaker grabbed the gun and pulled Lewandowski over the
check stand. Whittaker managed to take the weapon away from
Lewandowski, and identified the weapon as a pellet gun. After
Whittaker got the gun away from Lewandowski, Lewandowski ran out of
the store and was able to get away. Bradley also attempted to run
away, but Whittaker grabbed him and struck him with the pistol.
Bradley fell down, and a knife fell from his right coat pocket.
Whittaker was able to restrain Bradley and hold him until two other
employees assisted him. Whittaker stated that during the struggle,
another knife fell out of Bradley's pocket. These two knives proved
to be a hunting knife and a steak knife.
After he was warned of his Miranda rights, Bradley
admitted that he and Lewandowski came to the store to rob the
cashier. Bradley said the pistol was his, but he gave it to
Lewandowski while Bradley armed himself with two knives.
Lewandowski was arrested a short time later. Both defendants were
charged as adults with robbery in the first degree.
As we have previously stated, Lewandowski was sixteen
years old at the time of the offense. His only prior record was for
minor juvenile offenses which had been adjusted informally. A
person commits robbery in the first degree if he robs another and
is either armed with a deadly weapon, represents that he or another
person committing the robbery is so armed, or uses or attempts to
use a dangerous instrument or represents that he or another
participant is so armed. [Fn. 4] Robbery in the first degree is a
class A felony. [Fn. 5] The maximum sentence for a class A felony
is twenty years of imprisonment. [Fn. 6] The presumptive sentence
for a first felony offender is five years of imprisonment. [Fn. 7]
But if "the defendant possessed a firearm, used a dangerous
instrument, or caused serious physical injury during the commission
of the offense," then the presumptive sentence is seven years. [Fn.
8] The state conceded that Lewandowski's weapon was not a firearm,
and therefore agreed that the five-year presumptive sentence
applied. [Fn. 9]
Lewandowski proposed a mitigating factor: that the
conduct constituting his offense was among the least serious conduct
included in the definition of the offense. [Fn. 10] Lewandowski
emphasized that he and his codefendant were sixteen years old at the
time of the offense, that they were armed with an inoperable pellet
gun, and that no one was harmed except for Bradley, who had been hit
on the head with the pellet gun when Whittaker arrested him. After
careful consideration, Judge Wolverton rejected the mitigating
factor. In rejecting the mitigating factor, Judge Wolverton stated
candidly that he would prefer to not give the presumptive term. He
also recognized that this was a close case for applying the
mitigating factor. But he concluded that this was not among the
least serious robberies because there had been two perpetrators
rather than one, because Lewandowski and Bradley had planned the
robbery, they armed themselves not only with the pellet gun but also
with two knives, and there was a scuffle during the robbery.
Judge Wolverton pointed out that an operable pellet gun could kill
someone, and that Whittaker did not know that the weapon was
inoperable. He concluded that the robbery was "rife with potential
for danger."
Factors in mitigation and factors in aggravation must be
established by clear and convincing evidence. [Fn. 11] We are to
reverse a trial court's decision rejecting a mitigating factor only
if we find that the decision is clearly erroneous. [Fn. 12] As
Lewandowski points out, in Parks v. State, [Fn. 13] we stated that
in determining whether a robbery in the first degree qualifies for
the least serious offense mitigator, the court should focus
primarily on the risk created by the defendant's use of a weapon:
In determining whether conduct involved in a
first-degree robbery is among the least serious within the
definition of the offense, the sentencing court's primary focus must
be on the extent of actual risk that was created by the use or
threatened use of a dangerous instrument in the case before it. [Fn.
14]
In Parks, we found that the trial judge erred in not finding the
mitigating factor. [Fn. 15] Parks had committed the robbery merely
by representing that he had a dangerous instrument. [Fn. 16] We
stated:
In Parks' case, it is undisputed that no
dangerous instrument was actually used or carried. The offense
qualified as a first-degree robbery only because Parks verbally
threatened the use of a gun. The actual risk to the victims created
in these circumstances is among the lowest within the definition of
first-degree robbery and borders on the risk that typically exists
in a case of second-degree robbery. [Fn. 17]
In State v. Richards, [Fn. 18] the state argued on appeal
that the trial judge erred in finding the least serious mitigating
factor. [Fn. 19] The trial judge had found the mitigating factor
based on the fact that the defendant had apparently not planned the
robbery and that he had used an inoperable firearm to conduct the
robbery. [Fn. 20] The majority of this court, with one judge
dissenting, found that the trial judge was not clearly erroneous in
finding the mitigating factor. [Fn. 21] It is noteworthy that in
Richards, Richards faced a presumptive sentence of seven years for
possessing a firearm during the commission of the offense. [Fn. 22]
Lewandowski only faced a five-year presumptive term because his
weapon was determined to not be a firearm.
Therefore, we have held that, in cases where a person is
armed with an inoperable weapon or who threatens use of a gun but
is actually unarmed, there may be little actual risk from the use
of the dangerous instrument and the offense might border on the
commission of second-degree robbery. [Fn. 23] This would support
a finding that the conduct is among the least serious within the
definition of first-degree robbery. [Fn. 24]
The facts of the present case could support a least
serious conduct finding. But Judge Wolverton considered all of the
cases that we have discussed and concluded that the mitigating
factor did not apply. Lewandowski had the burden of proving the
mitigating factor by clear and convincing evidence. We are only to
reverse a trial judge's decision if we find it is clearly
erroneous. We believe that Judge Wolverton's conclusions are
supported by the record and support his decision to reject the
mitigating factor. We conclude that the sentence is not clearly
mistaken.
The sentence is AFFIRMED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that Judge Wolverton was not
clearly erroneous when he rejected Lewandowski's contention that
this robbery was among the least serious conduct included within
the definition of first-degree robbery. However, I believe that
this conclusion requires a fuller explanation than is contained in
the majority opinion.
There are two reasons why Judge Wolverton could properly
reject the proposed mitigator. The first reason is that State v.
Richards and Parks v. State are based on a misguided construction
of the robbery statute.
Richards and Parks adhere to the view espoused by Judge
Singleton in his concurring opinion in Richards that the central
rationale of the prohibition against robbery is to protect people
against the infliction of injury. According to this view, the
seriousness of any robbery should be gauged solely by assessing the
degree of risk of injury actually created by the robber's conduct.
Thus, in Richards this court (by a two-to-one vote) upheld a
finding of mitigator (d)(9) when the defendant used an inoperable
handgun. And in Parks this court concluded that the sentencing
judge committed clear error by refusing to find mitigator (d)(9)
when the defendant merely represented (falsely) that he was armed
with a firearm.
I believe that this is an overly narrow view of the
robbery statute. As defined by AS 11.41.510(a), robbery is the
taking or attempted taking of property from the presence of the
victim, accomplished by force or the immediate threat of force.
The crime is, at heart, an aggravated species of assault
aggravated because the assault is motivated by the intent to seize
property. As this court noted in Todd v. State,
It is true that the Alaska legislature now
classifies robbery among the "offenses against
the person" in chapter 41 of the criminal code,
accentuating its assaultive aspect. Neverthe-
less, the theft aspect of robbery can not be
ignored. Both the common law and Alaska's
criminal law ... have always treated the crime
of robbery as more serious than the sum of its
parts. Among assaults, those assaults
motivated by theft have always been viewed as
among the most serious, and the resulting
crime of robbery has always been punished more
severely than either assault or theft, or even
the combination of both.
884 P.2d 668, 685 (Alaska App. 1994).
I therefore believe that Judge Bryner was closer to the
mark when, in his dissenting opinion in Richards, he described the
rationale of the robbery statute as protecting people against
assault and when he concluded that the seriousness of a robbery
must be evaluated, at least in part, by the degree to which people
were placed in apprehension of injury. Obviously, one measure of
the seriousness of a robbery indeed, the seriousness of any
assault is the degree to which people are actually endangered.
But it is a mistake, I believe, to make this the only measure.
The second reason for upholding Judge Wolverton's
decision is that, even under this court's decisions in Richards and
Parks, the facts of Lewandowski's case are not among the least
serious when all of the circumstances are considered.
As just explained, Richards and Parks are based on the
view that the seriousness of any robbery should be gauged by
assessing the degree of risk of injury actually created by the
robber's conduct. In Richards, this court ruled that a sentencing
judge was justified in finding mitigator (d)(9) when the defendant
used an inoperable handgun to threaten the robbery victims.
Lewandowski argues that his case is at least as mitigated as
Richards because he carried an inoperable pellet gun a weapon
that does not qualify as a firearm under AS 11.81.900(b)(24).
But as Judge Wolverton pointed out, Lewandowski's
accomplice was armed with a steak knife and a hunting knife. These
implements qualify as "deadly weapons" under AS 11.81.900(b)(15).
[Fn. 1] The fact that Lewandowski's accomplice carried these
knives was sufficient, by itself, to make Lewandowski's crime a
first-degree robbery for, under AS 11.41.500(a)(1), a robbery is
of the first degree if "[the defendant] or another participant is
armed with a deadly weapon".
Thus, Lewandowski's crime would have been first-degree
robbery even if Lewandowski had carried no weapon. For this
reason, even if this case is analyzed under the rule adopted in
Richards and Parks, Lewandowski's crime did not become a mitigated
first-degree robbery just because Lewandowski brought along an
extra weapon that did not contribute significantly to the actual
risk of harm already posed by the robbers' conduct.
For both of these reasons, I conclude that we should
uphold Judge Wolverton's rejection of proposed mitigator (d)(9).
FOOTNOTES
Footnote 1:
AS 11.41.500(a)(1).
Footnote 2:
AS 12.55.125.
Footnote 3:
AS 12.55.155(d)(9).
Footnote 4:
AS 11.41.500.
Footnote 5:
Id.
Footnote 6:
AS 12.55.125(c).
Footnote 7:
AS 12.55.125(c)(1).
Footnote 8:
AS 12.55.125(c)(A).
Footnote 9:
AS 11.81.900(b)(24) defines "firearm" as "a weapon, including
a pistol, revolver, rifle, or shotgun, whether loaded or unloaded,
operable or inoperable, designed for discharging a shot capable of
causing death or serious physical injury."
Footnote 10:
AS 12.55.155(d)(9).
Footnote 11:
AS 12.55.155(f).
Footnote 12:
See State v. Richards, 720 P.2d 47, 48 (Alaska App. 1986).
Footnote 13:
731 P.2d 597 (Alaska App. 1989).
Footnote 14:
Id. at 597-98.
Footnote 15:
Id.
Footnote 16:
Id. at 598.
Footnote 17:
Id.
Footnote 18:
720 P.2d 47.
Footnote 19:
Id. at 48.
Footnote 20:
Id. at 49.
Footnote 21:
Id.
Footnote 22:
Id. at 48.
Footnote 23:
See Richards, 720 P.2d at 48-49; Parks, 731 P.2d at 597-98.
Footnote 24:
See Weston v. State, 736 P.2d 787, 789 (Alaska App. 1987).
FOOTNOTES (Concurrence)
Footnote 1:
AS 11.81.900(b)(15) states that a "deadly weapon" is "any
firearm, or anything designed for and capable of causing death or
serious physical injury, including a knife, an axe, a club, metal
knuckles, or an explosive". (Emphasis added)
In the Court of Appeals of the State of Alaska
Jonathan M. Lewandowski, )
) Court of Appeals No. A-07578
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. )
Date of Order: February 16, 2001
Trial Court Case # 3AN-97-08370CR
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
It is Ordered:
1. The State's motion to publish is GRANTED.
2. Memorandum Opinion and Judgment No. 4331, issued on
January 10, 2001, is WITHDRAWN and is SUPERSEDED by Opinion No.
1723 to be issued on February 16, 2001.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
Court of Appeals Judges
Central Staff Attorneys
Judge Michael L. Wolverton
Trial Court Appeals Division
West Publishing Company
Philip E Shanahan
Asst Public Advocate
900 West Fifth Avenue,
Suite 525
Anchorage AK 99501
Mary Anne Henry
District Attorney's Office
310 K Street, Suite 520
Anchorage AK 99501
