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Malutin v State (07/27/2001) ap-1758
Malutin v State (07/27/2001) ap-1758
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:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES W. SMITH, )
) Court of Appeals No. A-7806
Appellant, ) Trial Court No. 3AN-S99-3679 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1758 July 27, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Darrel J. Gardner, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. Kevin L. Donley, Assistant District Attorney, and Susan
A. Parkes, District Attorney, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
A person commits first-degree weapons misconduct under AS
11.61.190(a)(2) if the person "discharges a firearm from a propelled
vehicle while the vehicle is being operated," and if this discharge
is done "under circumstances manifesting a substantial and
unjustifiable risk of physical injury to a person or damage to
property." This offense is a class A felony. [Fn. 1] Under AS
12.55.125(c), a first felony offender convicted of a class A felony
is subject to either a 7-year or a 5-year presumptive term. Charles
W. Smith pleaded no contest to one count of first-degree weapons
misconduct and the superior court sentenced Smith to 10 years to
serve with 3 years suspended after concluding that the 7-year
presumptive term applied. The question presented in this appeal is
whether a first felony offender convicted of this crime is subject
to a 5-year or a 7-year presumptive term. For the reasons expressed
below, we conclude that a first felony offender is subject to a 5-
year presumptive term.
Under AS 12.55.125(c)(2)(A), a first felony offender
convicted of any class A felony other than manslaughter is subject
to a 7-year term if "the defendant possessed a firearm [or] used a
dangerous instrument." As explained in the previous paragraph, the
offense of first-degree weapons misconduct under AS 11.61.190(a)(2)
requires proof that a defendant discharged a firearm. A person who
discharges a firearm necessarily both "possesse[s] a firearm" and
"use[s] a dangerous instrument," because the term "dangerous
instrument" includes all firearms. [Fn. 2] Thus it would appear
that a defendant convicted of this crime should face a 7-year
presumptive term. But this conclusion would lead to unintended
results.
The crime of first-degree weapons misconduct under section
190(a)(2) requires proof that the defendant discharged a firearm
"under circumstances manifesting a substantial and unjustifiable
risk of physical injury to a person." This language "a
substantial and unjustifiable risk of physical injury" tracks the
statutory definition of two culpable mental states: "recklessly"
and "criminal negligence." As defined in AS 11.81.900(a)(3), a
person acts "recklessly" with respect to a result (e.g., infliction
of physical injury) when the person "is aware of and consciously
disregards a substantial and unjustifiable risk that the result will
occur." Similarly, as defined in AS 11.81.900(a)(4), a person acts
with "criminal negligence" with respect to a result when the person
"fails to perceive a substantial and unjustifiable risk that the
result will occur." For purposes of both culpable mental states,
a risk is "substantial and unjustifiable" when the defendant's
disregard of it or failure to perceive it constitutes a gross
deviation from the standard of conduct or care that a reasonable
person would observe in the situation. [Fn. 3]
It is not clear whether the legislature intended in
enacting the first-degree weapons misconduct statute to require
proof of recklessness or criminal negligence when it required proof
that the defendant discharged a firearm under circumstances
"manifesting a substantial and unjustifiable risk of physical
injury." But in either case, the statute does not require proof of
actual injury, but only that the defendant's conduct created a
substantial and unjustifiable risk of injury.
Here is where application of the 7-year presumptive term
potentially leads to incongruous results. Assume that first-degree
weapons misconduct under section 190(a)(2) requires proof that the
defendant recklessly disregarded the possibility that the discharge
of a firearm from an operated vehicle might result in physical
injury to another person. Under this construction of the statute,
a defendant who discharged a firearm from a moving vehicle and
thereby recklessly endangered the physical safety of another person
would be subject to a 7-year presumptive term. But the same
defendant would be subject to a 5-year presumptive term if, by
misfortune, the defendant killed someone and was convicted of
manslaughter. (Under AS 12.55.125(c), the 7-year presumptive term
does not apply to manslaughter, which carries a 5-year presumptive
term.) Or, to take a more striking example, if the defendant's
discharge of the firearm endangered two people, one of whom escaped
injury and one of whom was shot dead, the defendant would face a 7-
year presumptive term for endangering the surviving victim but only
a 5-year presumptive term for killing the deceased victim.
Alternatively, if first-degree weapons misconduct requires
proof of negligent endangerment rather than reckless endangerment,
the incongruity is even plainer. A defendant would face a 7-year
presumptive term for discharging a firearm and negligently
endangering another person, but only a 5-year presumptive term if
the person were killed by discharge of the firearm and the State
could prove that the defendant acted "recklessly" (a higher culpable
mental state) by consciously disregarding this risk of death.
The State attempts to avoid this result by arguing that
first-degree weapons misconduct is more culpable than manslaughter.
The State notes that first-degree weapons misconduct requires proof
that the defendant acted "knowingly" with respect to the act of
discharging the firearm from an operated vehicle. [Fn. 4] The State
then argues that the culpable mental state of "knowingly" is more
blameworthy that the culpable mental state of "recklessly" required
for manslaughter.
But the State's argument confuses two different elements
of criminal behavior: conduct and results. The State's argument
also mistakenly assumes that only one culpable mental state can
apply to an offense.
When an offense requires proof that a defendant engaged
in a particular kind of conduct, the State invariably will have to
prove that the defendant acted "knowingly" with respect to that
conduct because "knowingly" is the only culpable mental state that
applies to conduct. [Fn. 5] But many offenses are defined in terms
of a result either in conjunction with specified conduct, or without
specifying any particular conduct. For instance, manslaughter does
not require proof of any particular type of conduct, but it does
require proof that the defendant acted intentionally, knowingly or
recklessly with respect to the possibility that the defendant's
conduct might cause another person's death. [Fn. 6]
First-degree weapons misconduct under section 190(a)(2)
is an example of an offense that requires proof of both specified
conduct and a specified result; thus, the State is required to prove
two different culpable mental states. The offense requires proof
of a particular type of conduct: knowing discharge of a firearm
from an operated vehicle. This conduct, by itself, constitutes the
class C felony offense of third-degree weapons misconduct under AS
11.61.200(a)(11). But first-degree weapons misconduct also requires
proof that the defendant's conduct created a specified result: the
risk of physical injury to a person or damage to property. [Fn. 7]
The culpable mental state of "knowingly" never applies to
results. Rather, under Alaska's criminal code, the three culpable
mental states that can apply to results are "intentionally,"
"recklessly" and "criminal negligence." [Fn. 8] As we explained
above, first-degree weapons misconduct requires proof that the
defendant acted recklessly, or at least negligently, with respect
to the possibility that discharge of a firearm might endanger
someone.
It is here that the overlap with manslaughter occurs. And
this overlap leads to the problematic result of defendants seemingly
facing a greater penalty for endangering people than for killing
them.
In Pruett v. State, [Fn. 9] we noted this same incongruity
in applying a 7-year presumptive term to first felony offenders
convicted of first-degree assault under AS 11.41.200(a)(1) for
"recklessly caus[ing] serious physical injury to another by means
of a dangerous instrument." [Fn. 10] We concluded that "the
legislature could not have intended the seven-year presumptive term
to apply to those who recklessly commit assault in the first degree,
but only a five-year presumptive term to those who [recklessly] kill
their victim." [Fn. 11]
We reach the same conclusion with respect to first-degree
weapons misconduct. The legislature could not have intended to
impose a 7-year presumptive term when a drive-by shooting endangers
a person but a lesser 5-year presumptive term if the shooting
results in death. Therefore, we hold that a 5-year presumptive term
applies to first felony offenders convicted of first-degree weapons
misconduct under AS 11.61.190(a)(2).
Because, in this case, the superior court sentenced the
defendant under the belief that a 7-year presumptive term applied,
we VACATE the defendant's sentence and direct the superior court
to resentence the defendant using a presumptive term of 5 years as
the starting point of the sentencing analysis.
FOOTNOTES
Footnote 1:
AS 11.61.190(b).
Footnote 2:
See AS 11.81.900(b)(14) (defining "dangerous instrument" as
including "any deadly weapon") and AS 11.81.900(b)(16) (defining
"deadly weapon" as including "any firearm").
Footnote 3:
See AS 11.81.900(a)(3), (4).
Footnote 4:
See AS 11.61.190(a)(2); AS 11.81.610(b)(1).
Footnote 5:
See Neitzel v. State, 655 P.2d 325, 333 (Alaska App. 1982).
Footnote 6:
See AS 11.41.120.
Footnote 7:
See AS 11.61.190(a)(2).
Footnote 8:
See Neitzel, 655 P.2d at 329-30.
Footnote 9:
742 P.2d 257 (Alaska App. 1987), overruled on other grounds by
State v. Wentz, 805 P.2d 962 (Alaska 1991).
Footnote 10:
See id. at 262-63.
Footnote 11:
Id. at 263.
