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Wright v. State (5/3/2002) ap-1802
Wright v. State (5/3/2002) ap-1802
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
DYLAN J. WRIGHT, )
) Court of Appeals No.
A-7955
Appellant, )
Trial Court No. 3UN-S99-180 CR
)
v. )
) O P I N I O
N
STATE OF ALASKA, )
)
Appellee. )
[No. 1802 - May 3, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Unalaska, John E. Reese,
Judge.
Appearances: Michael R. Smith, Anchorage,
for Appellant. John J. Novak, Chief
Assistant District Attorney, Susan A. Parkes,
District Attorney, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Dylan J. Wright was convicted of robbery in the first
degree, a class A felony,1 and assault in the first degree, also
a class A felony,2 for robbing and severely beating a cab driver,
Sun Chon, during the early morning hours of July 30, 1999.
Superior Court Judge John E. Reese sentenced Wright to a
composite term of twenty years of imprisonment with six years
suspended. Wright appeals to this court, raising several issues
concerning his sentence. We affirm.
The offense
On July 29, 1999, Sun Chon was driving her cab in
Unalaska. She picked up a young, skinny man wearing a dark-blue,
hooded sweatshirt, baggy jeans, tennis shoes, and a hat. The man
had his hood pulled over his hat, concealing his facial features.
Sun Chon felt uneasy about the situation and asked another driver
to remain on the radio until she completed transporting the man.
During the drive, the man moved directly behind Sun Chon, put his
arm around her neck, and covered her mouth with his hand. He
then produced a hand gun and put it to the back of her head. Sun
Chon activated the radio, but the man saw her doing this and
ripped the microphone out, causing the radio to go dead. Sun Chon continued
driving, swerving all over the road before stopping the taxi on a bridge. The man
then pulled Sun Chon to the floor and took over driving. He drove her to an isolated
area. Sun Chon pleaded with him to take her money. But the man dragged Sun Chon out
of the taxi and attempted to tie her hands behind her back. While attempting to tie
her up, he placed the gun on the ground. Sun Chon was able to grab the gun with one
hand. But the man took the gun away from her, breaking her finger. He beat her
about the face and head with the gun until she lost consciousness. When she came to,
the man had left, and she crawled back into the taxi cab.
Meanwhile, dispatch for the Harbor Express Taxi, the
company for which Sun Chon worked, notified the Unalaska
Department of Public Safety that they had lost communication with
Sun Chon and were concerned about her welfare. Following an
extensive search, Officer Johnson located Sun Chons taxi in an
isolated area. The headlights were on, and the taxi was not
running. Officer Johnson observed blood splatters on the outside
of the taxi and in the interior. He found Sun Chon in the taxi in
the passengers seat. Sun Chons eyes were swollen shut, she had
obvious injuries to her face, and she was covered in blood. As
she drifted in and out of consciousness, she told Officer Johnson
that she had been robbed at gunpoint and beaten by her assailant.
Sun Chon was transported to the local clinic for medical
treatment.
At the clinic, medical personnel saw that Sun Chons
front teeth had been knocked out, her nose and jaw appeared to be
broken, she had a bleeding gash across her forehead, and her lips
were bleeding. Her entire face and right hand were swollen and
discolored. She had a cut across the bridge of her nose, and her
nose was clogged with clotted blood. She continued to drift in
and out of consciousness while she was being treated. She was
transported from Unalaska to Anchorage Regional Hospital where
she remained for several days. Her injuries required extensive
surgery. She reported continued dizziness and a fuzzy feeling
after her discharge from the hospital.
The offender
Wright was nineteen years old at the time of
sentencing. He was a first felony offender for purposes of
presumptive sentencing. As a first felony offender convicted of
robbery in the first degree, Wright faced a presumptive sentence
of seven years of imprisonment based upon the fact that he
possessed a firearm during the robbery offense.3 He faced a
presumptive sentence of five years for the assault conviction.4
Judge Reese found several aggravating factors. He found that
Wright had a prior criminal history, including an adjudication as
a delinquent for conduct that would have been a felony if
committed by an adult.5 Wright does not contest this aggravating
factor. Wright has an extensive juvenile record. Judge Reese
also found that Wrights conduct manifested deliberate cruelty to
another person.6 Judge Reese found that this aggravator applied
to both Wrights robbery and assault offenses.
Wright argues that Judge Reese erred in finding this
aggravator. In Juneby v. State,7 we stated:
The word cruelty . . . denotes the infliction
of pain or suffering for its own sake, or for
the gratification derived therefrom. We
think that, in accordance with this common
definition, the term deliberate cruelty, as
used in AS 12.55.155(c)(2) must be restricted
to instances in which pain whether physical,
psychological, or emotional is inflicted
gratuitously or as an end in itself.
Conversely, when the infliction of pain or
injury is merely a direct means to accomplish
the crime charged, the test for establishing
the aggravating factor of deliberate cruelty
will not be met.8
In finding this aggravating factor, Judge Reese pointed out that
Sun Chon was severely injured and maimed and left for dead for no
apparent reason. He concluded that Wright had engaged in
gratuitous violence. Judge Reeses findings are supported by the
record and support his conclusion that Wright had acted with
deliberate cruelty. Wright had every opportunity to take Sun
Chons money and leave without harming her. Sun Chon begged him
to take the money. Instead, Wright beat her mercilessly, to the
point where she was almost killed. He then abandoned her, quite
possibly leaving her for dead. Judge Reese did not err in
finding this aggravator.
Wright raises another issue about Judge Reeses
findings. He points out that Judge Reese found the deliberate
cruelty aggravator for both the assault and the robbery. Wright
points out that, assuming he engaged in deliberate cruelty, it
was the same deliberate cruelty for both offenses. But Judge
Reese fully recognized this point. He recognized the same
deliberate cruelty applied to both counts and stated he would
consider this in imposing sentence he would not count this
conduct twice. Because the sentencing record makes it clear that
Judge Reese recognized the problem and made allowances for this
in determining Wrights ultimate sentence, Wright was not
prejudiced.
Judge Reese also found the aggravating factor that
Wrights offense was among the most serious conduct included in
the definition of the offense.9 Judge Reese found that this
aggravating factor applied to both the robbery and assault
offenses. In finding the robbery offense particularly serious,
he observed that, in committing the robbery, Wright had kidnapped
Sun Chon. In Benboe v. State,10 we concluded that a finding that
the defendant had committed a more serious offense than the one
for which he was actually convicted would support the most
serious aggravating factor.11 Kidnapping is an unclassified
felony with a maximum of ninety-nine years of imprisonment.12
Judge Reeses finding is supported by the record and supports his
conclusion that Wrights robbery was a most serious robbery
offense.
In finding Wrights assault offense a most serious
offense, Judge Reese noted the severity of Sun Chons injuries.
He emphasized that she was almost killed. The facts of the
assault offense support Judge Reeses finding.
Wright contends that AS 12.55.025(e), which authorizes
judges to impose consecutive sentences, is unconstitutional.
Wright relies on Apprendi v. New Jersey.13 In Apprendi, the
United States Supreme Court held that any factual finding that
increases the penalty for a crime beyond the statutory maximum
provided for the offense must be submitted to the jury and proved
beyond a reasonable doubt.14 Apprendi does not apply to Wrights
case. Wright faced a maximum sentence of twenty years for the
robbery conviction and an additional twenty years for the assault
conviction.15 Therefore, he faced a potential maximum term of
forty years of imprisonment. Alaska Statute 12.55.025(e) did not
increase the potential maximum term. Wright points out that his
two offenses arose from the same course of conduct. He
apparently objects to Judge Reeses finding that the two events
were surprisingly unrelated and therefore supported consecutive
sentences. But Judge Reeses decision to impose consecutive
sentence did not increase the statutory maximum sentence that
Wright faced. In fact, Judge Reese could have imposed the same
composite sentence by imposing concurrent sentences.
Wright also cites to an Illinois case, People v.
Clifton,16 which applied Apprendi to the Illinois consecutive
sentencing statute. The Illinois consecutive sentencing statute
provided in part that [t]he court shall not impose consecutive
sentences for offenses which were committed as part of a single
course of conduct during which there was no substantial change in
the nature of the criminal objective, unless, one of the offenses
for which defendant was convicted was a Class X or Class 1 felony
and the defendant inflicted severe bodily injury.17 In Clifton,
the court held that Apprendi required the finding to impose a
consecutive sentence to be found by a jury beyond a reasonable
doubt.18 The Illinois statute governing consecutive sentences
differs significantly from AS 12.55.025(e). But even without
considering this, the Illinois cases applying Apprendi to the
Illinois consecutive sentencing statute were recently overruled
in People v. Wagener.19 Courts in other states that have
considered this issue have concluded that Apprendi does not
govern the decision to impose consecutive sentences.20 We
accordingly conclude that Wrights constitutional attack on AS
12.55.025(e) has no merit.
Wright contends the sentence Judge Reese imposed is
excessive. But Wrights offense encompassed the kidnapping,
robbery, and the severe beating of Sun Chon. Although he is a
young first felony offender, Wright has an extensive juvenile
record and has failed at prior attempts at rehabilitation. We
conclude the sentence Judge Reese imposed is not clearly
mistaken.21
The sentence is AFFIRMED.
In the Court of Appeals of the State of Alaska
Dylan Wright, )
)Court of Appeals No. A-7955
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of
Order: 5/3/02
)
Trial Court Case # 3UN-99-00180CR
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
It is Ordered:
1. The States motion to publish is GRANTED.
2. Memorandum Opinion and Judgment No. 4548, issued on March
27, 2002, is WITHDRAWN and SUPERSEDED by Opinion No. 1802 to be
issued on May 3, 2002.
Entered at the direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
COA Judges
Central Staff Attorneys
Judge John E. Reese
Trial Court Appeals Division
West Publishing Company
Michael R Smith
Attorney At Law
308 G Street #324
Anchorage AK 99501
John J Novak
Asst District Attorney
310 K Street #520
Anchorage AK 99501
_______________________________
1 AS 11.41.500(a)(1), (b).
2 AS 11.41.200(a)(1), (b).
3 AS 12.55.125(c)(2)(A).
4 See Pruett v. State, 742 P.2d 257, 262-63 (Alaska App.
1987), overruled on other grounds by State v. Wentz, 805 P.2d 962
(Alaska 1991).
5 AS 12.55.155(c)(19).
6 AS 12.55.155(c)(2).
7 641 P.2d 823 (Alaska App. 1982).
8 Id. at 840.
9 AS 12.55.155(c)(10).
10 698 P.2d 1230 (Alaska App. 1985).
11 Id. at 1231 n.2.
12 AS 11.41.300(c); AS 12.55.125(b).
13 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
14 Id., 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d
at 455.
15 AS 12.55.125(c).
16 750 N.E.2d 686 (Ill. App. 2000), revd People v.
Wagener, 752 N.E.2d 430 (Ill. 2001).
17 730 ILCS 5/5-8-4(a) (West Supp. 1997), quoted in
Clifton, 750 N.E.2d at 704.
18 Clifton, 750 N.E.2d at 704-05.
19 752 N.E.2d at 440-43.
20 See People v. Clifton, _____ P.3d _____, 2001 WL
1630375, *2-*5 (Colo. App. 2001) (reaching the same conclusion:
Apprendi does not govern the decision to impose consecutive
sentences); People v. Cleveland, 104 Cal.Rptr.2d 641, 644-47
(Cal. App. 2001) (same).
21 McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
