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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Korkow (12/13/2013) sp-6856
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-14468
Petitioner, ) Court of Appeals No. A-10488
) Superior Court No. 3AN-05-01915 CR
v. )
) O P I N I O N
JIMMY JACK KORKOW, )
) No. 6856 - December 13, 2013
Respondent. )
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court, Third Judicial
District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions & Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Petitioner. Glenda Kerry, Law Office of Glenda
J. Kerry, Girdwood, for Respondent.
Before: Fabe, Chief Justice, Carpeneti, Winfree, Stowers and
Maassen, Justices.
WINFREE, Justice.
I. INTRODUCTION
Jimmy Jack Korkow was convicted of first-degree murder for beating and
stabbing his wife to death while the couple's young children were present in the family
home. The trial court sentenced Korkow to 99 years in prison with no possibility for
discretionary parole until he served 50 years. The court of appeals reversed the 50-year
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parole restriction as clearly mistaken, and we granted the State of Alaska's petition for
hearing on that issue. Because the trial court correctly applied the statutory restriction
on parole after making sufficient findings supported by the record, we reverse the court
of appeals and hold that the restriction was not excessive.
II. FACTS AND PROCEEDINGS
In March 2005 Jimmy Jack Korkow killed his wife in their apartment,
beating her and inflicting at least 62 stab wounds. The Korkows' three youngest
daughters were in the apartment at the time; at least one of them was aware of the attack
and moved from her bed into a closet. Korkow was convicted of first-degree murder
after a jury trial. The trial court imposed the maximum sentence of 99 years with no
suspended time and restricted Korkow's eligibility for discretionary parole beyond the
33-year statutory minimum until he served at least 50 years of his sentence. The trial
court imposed its parole limitation in light of the severity of Korkow's actions, his lack
of remorse, and the need to protect his children and the general public.
The court of appeals reversed the trial court's parole limitation as clearly
mistaken, basing its decision on a presumption that when a lengthy sentence is imposed
discretionary parole questions are better left to the Parole Board because it can evaluate
the parole applicant's "tested response to Department of Corrections rehabilitative
1
measures." Reiterating language from its earlier cases, the court emphasized that trial
courts "should not place 'inordinate emphasis . . . on predictions of possible future
1 Korkow v. State , 258 P.3d 932, 934 (Alaska App. 2011) (quoting Cheely
v. State, 861 P.2d 1168, 1181 (Alaska App. 1993)).
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----------------------- Page 3-----------------------
2
misconduct,' " and concluded the trial court's concern that Korkow was a danger to his
children and the public was "speculative . . . at best."3
We granted the State's petition for hearing to consider: (1) the efficacy of
the court of appeals' "presumption"; and (2) what factors should be considered when
restricting parole eligibility.
III. STANDARD OF REVIEW
Sentencing decisions are reviewed under the clearly mistaken standard,
4
giving deference to the sentencing court. "[T]he clearly mistaken test implies a
permissible range of reasonable sentences which a reviewing court, after an independent
5
This test is "founded on two concepts: first, that
review of the record, will not modify."
reasonable judges, confronted with identical facts, can and will differ on what constitutes
an appropriate sentence; [and] second, that society is willing to accept these sentencing
discrepancies, so long as a judge's sentencing decision falls within 'a permissible range
of reasonable sentences.' "6
The interpretation of a statute is a question of law to which we apply our
independent judgment, adopting "the rule of law that is most persuasive in view of
2 Id. (quoting Skrepich v. State, 740 P.2d 950, 954 (Alaska App. 1987); Maal
v. State, 670 P.2d 708, 711 (Alaska App. 1983)).
3 Id. at 935.
4
State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (citing McClain v.
State, 519 P.2d 811, 813-14 (Alaska 1974)).
5 Id. (quoting McClain , 519 P.2d at 813).
6 Id. (quoting Erickson v. State , 950 P.2d 580, 586 (Alaska App. 1997)).
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7
precedent, reason, and policy." "When interpreting a statute, we look first at the
8
statute's language, legislative history, and legislative purpose." "[U]nder our sliding-
scale approach to statutory interpretation . . . 'the plainer the language of the statute, the
more convincing any contrary legislative history must be' " to overcome the statute's
9
plain meaning.
IV. DISCUSSION
A. Alaska's Sentencing And Parole Framework
Alaska's statutory sentencing framework aims to ensure "the elimination
10
of unjustified disparity and the attainment of reasonable uniformity in sentences."
First-degree murder carries mandatory terms of 20 years minimum and 99 years
11
Sentencing
maximum, and sentencing courts may impose a sentence within that range.
12
courts must consider the factors set out in AS 12.55.005 when imposing sentences.
7 State, Dep't of Corr. v. Heisey, 271 P.3d 1082, 1085 (Alaska 2012)
(quoting Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 2004)).
8 Id. at 1086 (citing Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska
2010)).
9 Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012) (quoting
Bartley v. State, Dep't of Admin., Teachers' Ret. Bd. , 110 P.3d 1254, 1258 (Alaska
2005)).
10 AS 12.55.005.
11 AS 12.55.125(a).
12 These factors incorporate the criteria we outlined in State v. Chaney, 477
P.2d 441, 444 (Alaska 1970). See Nell v. State, 642 P.2d 1361, 1369 (Alaska App. 1982)
("The Chaney criteria have essentially been incorporated into the criminal code as
AS 12.55.005."). The enumerated factors in AS 12.55.005 are:
(1) the seriousness of the defendant's present offense
(continued...)
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With murder convictions, sentencing courts may, but are not required to, increase or
decrease a sentence based on findings of statutory aggravating or mitigating factors.13
Finally, "maximum sentences generally should not be imposed without some foundation
for characterizing a defendant as the worst type of offender."14
A prisoner is eligible for discretionary-parole consideration after serving
15
or (2) a longer time period
(1) "one-third of the active term of imprisonment imposed,"
12 (...continued)
in relation to other offenses;
(2) the prior criminal history of the defendant and the
likelihood of rehabilitation;
(3) the need to confine the defendant to prevent further
harm to the public;
(4) the circumstances of the offense and the extent to
which the offense harmed the victim or endangered the public
safety or order;
(5) the effect of the sentence to be imposed in deterring
the defendant or other members of society from future
criminal conduct;
(6) the effect of the sentence to be imposed as a
community condemnation of the criminal act and as a
reaffirmation of societal norms; and
(7) the restoration of the victim and the community.
13
AS 12.55.155; see Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002)
(approving use of factors by analogy in murder sentencing).
14 State v. Wortham , 537 P.2d 1117, 1120 (Alaska 1975) (citation and
quotation marks omitted) (cited in State v. Graybill, 695 P.2d 725, 728 (Alaska 1985);
Baker v. State , 182 P.3d 655, 658 (Alaska App. 2008)).
15 See AS 33.16.090(b)(1).
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the sentencing court sets as part of the sentence. 16 When a prisoner becomes eligible for
discretionary parole, it may be granted by the Parole Board under the standards set out
17
in AS 33.16.100.
B. Korkow's Sentence
At Korkow's sentencing hearing following his first-degree murder
conviction, the superior court made a worst offender finding. The court also found four
18 (2) conduct among the
aggravating factors: (1) a history of prior assaultive conduct;
most serious included in the first-degree murder definition;19 (3) an offense committed
16 See AS 12.55.115; see also State v. Malloy, 46 P.3d 949, 954 (Alaska 2002)
(noting that sentencing courts have authority to restrict a defendant's eligibility for parole
when imposing a 99-year term of imprisonment).
17 AS 33.16.100(a) provides:
The board may authorize the release of a prisoner on
discretionary parole if it determines a reasonable probability
exists that
(1) the prisoner will live and remain at liberty without
violating any laws or conditions imposed by the board;
(2) the prisoner's rehabilitation and reintegration into
society will be furthered by release on parole;
(3) the prisoner will not pose a threat of harm to the
public if released on parole; and
(4) release of the prisoner on parole would not
diminish the seriousness of the crime.
18 See AS 12.55.155(c)(8).
19 See AS 12.55.155(c)(10).
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20
against a spouse; and (4) an offense committed in the physical presence of a child under
21
16 years of age living with both the perpetrator and victim. The court relied primarily
on the last two aggravating factors in fashioning its sentence.
Considering relevant Chaney factors - including protection of Korkow's
children, reinforcement of societal norms, community condemnation, and isolation of the
criminal - the court imposed the maximum sentence of 99 years with no suspended
time, and restricted Korkow's eligibility for discretionary parole until he served at least
50 years of his sentence. The court explained that based on the severity of the case and
Korkow's lack of remorse and concern for others, the restriction was necessary to protect
the public, Korkow's children, and their future children. Absent that restriction, Korkow
would be eligible for discretionary parole after 33 years.22
C. The Presumption
When reversing the superior court's imposition of a 50-year restriction on
Korkow's discretionary parole eligibility, the court of appeals relied upon a legal
presumption that when a sentencing court imposes a lengthy sentence, "questions of
discretionary release are better left to the Parole Board, since the Board evaluates the
advisability of parole release in light of the defendant's tested response to Department
23
of Corrections rehabilitative measures." The State argues that this presumption is
incorrect as a matter of statutory interpretation. Korkow contends the court of appeals
is correct because the statutory framework makes discretionary parole after serving one-
20 See AS 12.55.155(c)(18)(A).
21 See AS 12.55.155(c)(18)(C).
22 See AS 33.16.090(b)(1).
23 Korkow v. State , 258 P.3d 932, 934 (Alaska App. 2011) (quoting Cheely
v. State, 861 P.2d 1168, 1181 (Alaska App. 1993)).
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----------------------- Page 8-----------------------
third of a sentence the default provision, and therefore presumptively appropriate. We
agree with the State.
Alaska Statute 12.55.115 expressly empowers a sentencing court to restrict
eligibility for discretionary parole beyond that required by AS 33.16.090 and
AS 33.16.100, which, in relevant part, bar release on discretionary parole until one-third
of the prisoner's active term has been served.24 Nothing in these statutes' plain language
or legislative history suggests room for a legal presumption limiting a sentencing court's
power to restrict discretionary parole eligibility beyond one-third of the prisoner's actual
term. And nothing in these statutes' plain language or legislative history suggests
sentencing courts are to limit this power out of deference to the Parole Board.
A significant weakness in Korkow's statutory argument is its limitation to
"lengthy sentences." If the statutory framework creates a legal presumption that
sentencing courts must overcome to impose a longer-than-minimum time period for
discretionary parole eligibility, then that legal presumption would apply to all sentences,
not just lengthy sentences. The statutory framework is better viewed not as a legal
presumption that must be overcome to impose a longer period for discretionary parole
eligibility, but rather as a statutory minimum that sentencing courts may not ignore. In
a somewhat similar context, we recently rejected an argument that legislatively imposed
mandatory minimum periods constitute a "legislative preference."25
The common law also does not provide much basis for Korkow's support
of the court of appeals' legal presumption. In Gullard v. State a young man was
convicted of manslaughter and the sentencing court imposed a ten-year sentence with
24 See AS 33.16.090(b)(1), AS 33.16.100(a).
25 See Bottcher v. State, 300 P.3d 528, 533-34 (Alaska 2013) (rejecting
argument that mandatory minimum periods for driver's license revocations constitute a
"legislative preference" for imposition of minimum revocation periods).
-8- 6856
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26
one-third to be served without the possibility of parole. We reversed the parole
restriction as excessive, stating that in light of the defendant's youth and the sentence's
length, "we believe that his eligibility for parole can be more appropriately determined
27
by the parole board in these circumstances." But Gullard did not express a general
presumption that, at least with lengthy sentences, sentencing courts should leave
discretionary parole decisions to the Parole Board and should not impose a restriction on
discretionary parole eligibility. More importantly, Gullard was effectively repudiated
by a 1974 amendment to then-controlling AS 33.15.230(a), taking away a sentencing
court's authority to impose a discretionary parole eligibility restriction of less than one-
28
third of the maximum sentence imposed. This amendment was retained and expanded
29
which set one-third
with the 1985 enactment of AS 12.55.115 and AS 33.16.090(b)(1),
of an active sentence as a minimum restriction on both a sentencing court's and the
30
If former AS 33.15.230(a) and
Parole Board's authority to grant discretionary parole.
26 497 P.2d 93 (Alaska 1972) (noting then-controlling AS 33.15.230(a); under
that provision sentencing courts had authority to either restrict discretionary parole for
any period up to one-third of the maximum sentence imposed or specify that parole
elibigility would be determined by the Parole Board).
27 Id . at 94.
28 Ch. 110, § 3, SLA 1974. Under the amended statute, the sentencing court
could set the eligibility restriction term or, alternatively, simply "specify that the prisoner
is eligible for parole at the time the [Parole] [B]oard determines." Former AS 33.15.230
(amended 1974).
29
As part of an extensive 1985 revision of the Alaska Parole Administration
Act, AS 12.55.115 was enacted and the existing parole administration statutory
framework of AS 33.15 was repealed and replaced with the statutory framework of
AS 33.16. See Ch. 88, § 1, SLA 1985.
30 AS 33.16.090(b)(1).
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AS 33.16.090(b)(1) reveal anything about the legislature's post-Gullard view of when
prisoners should be released on discretionary parole, they reveal a view favoring new
and greater eligibility restrictions - we do not agree that the 1985 statutory framework
carried with it a common law presumption that, with respect to lengthy sentences,
sentencing courts should not impose more than the statutory minimum restriction on
discretionary parole eligibility in deference to the Parole Board.
We conclude that when imposing a discretionary parole eligibility
restriction beyond the statutory minimum for any sentence, (1) a sentencing court may
consider whether the Parole Board will at a later date be better able to assess the
defendant's prospects for successful parole, but (2) there is no legal presumption against
a restriction beyond the statutory minimum set by AS 33.16.090(b)(1).
D. Parole Eligibility Restriction Factors
Alaska Statute 12.55.115 does not itself set out any factors sentencing
courts should evaluate when they consider imposing parole eligibility restrictions beyond
the statutory minimum. Although we never have addressed the issue and it therefore
comes to us as a matter of first impression, the court of appeals repeatedly has held that
sentencing courts can restrict discretionary parole only when the statutory default term
of parole eligibility "would be insufficient to protect the public and [e]nsure the
31
defendant's reformation." The State argues that limiting consideration only to these
31 See, e.g., Lawrence v. State , 764 P.2d 318, 321 (Alaska App. 1988)
(quoting Spencer v. State, 642 P.2d 1371, 1377 (Alaska App. 1982)); see also Bates v.
State, 258 P.3d 851, 866 (Alaska App. 2011); Hinson v. State, 199 P.3d 1166, 1173
(Alaska App. 2008); Cheely v. State, 861 P.2d 1168, 1181 (Alaska App. 1993); Stern v.
State, 827 P.2d 442, 450 (Alaska App. 1992). Cf. Bloomstrand v. State , 656 P.2d 584,
591 (Alaska App. 1982) (stating that amount of time reasonably required for
rehabilitation is "among the various factors" sentencing courts can consider to restrict
discretionary parole eligibility) (emphasis added).
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----------------------- Page 11-----------------------
two criteria is inconsistent with article I, section 12 of the Alaska Constitution,
AS 12.55.005, and AS 12.55.115. Korkow responds that because parole eligibility
restrictions are forward-looking and involve different considerations than sentencing,
sentencing courts should focus only on protection of the public and rehabilitation. We
agree with the State.
The Alaska Constitution states that "[c]riminal administration shall be based
upon the following: the need for protecting the public, community condemnation of the
offender, the rights of victims of crimes, restitution from the offender, and the principle
32 Alaska Statute 12.55.005, the declaration of purpose for Alaska's
of reformation."
sentencing and probation laws, incorporates the constitutional criteria by requiring
33 As a matter of
consideration of a set of related factors when imposing a sentence.
statutory interpretation, AS 12.55.005's list of factors governs the sentencing court's
authority under AS 12.55.115 to restrict discretionary parole "as part of a sentence of
imprisonment." The statutory language is clear and uncontradicted by any legislative
history - a sentencing court must consider all the enumerated criteria in AS 12.55.005
when restricting discretionary parole as a part of a sentence, not just public protection
and the defendant's reformation.
We recognize that not all of the AS 12.55.005 factors necessarily will be
relevant in every parole eligibility determination, and that the most relevant factors often
will be public safety and potential for rehabilitation. And we emphasize that a
sentencing court may err by ignoring relevant factors or improperly weighing relevant
factors when imposing a parole eligibility restriction beyond the statutory minimum. A
32 Alaska Const. art. I, § 12.
33 As noted earlier, these are "the Chaney factors." See supra note 12 and
related text.
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sentencing court must consider all of the statutory factors, determine which are relevant
to the case, and support its overall sentence - including parole eligibility restrictions -
with expressly articulated reasons backed by substantial evidence.34
E. Parole Restriction In This Case
The State argues that Korkow's parole restriction was not clearly mistaken
in light of the 33-year default eligibility restriction and the sentencing court's discretion
to restrict Korkow's parole eligibility for the entire 99-year term. Korkow argues that
his parole eligibility restriction is outside the permissible range based on "comparison"
to other cases. Korkow also argues that the sentencing court did not make sufficient
findings supported by substantial evidence to impose the restriction.
Korkow's attempt to show his sentence is clearly mistaken by comparing
it to sentences in other cases must fail. As the court of appeals has noted, "affirmance
of a sentence on appeal means only that . . . the sentence is not excessive; it does not set
35
a ceiling [or a floor] on sentences in similar cases." We also have cautioned that
benchmarks based on prior cases "are not to be used as inflexible rules but rather as
36
Because Korkow's
historically-based starting points for analysis in individual cases."
34 See Jackson v. State, 616 P.2d 23, 25 (Alaska 1980) (directing sentencing
court to articulate reasons for restricting parole eligibility); Qualle v. State, 652 P.2d 481,
486 (Alaska App. 1982) (holding restriction on parole eligibility in absence of findings
supported by substantial evidence was clearly mistaken).
35 Hurn v. State , 872 P.2d 189, 199-200 (Alaska App. 1994).
36 State v. Hodari, 996 P.2d 1230, 1237 (Alaska 2000).
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----------------------- Page 13-----------------------
sentence is within the broad permissible range of reasonable sentences,37 we will not
reject the sentencing court's restrictions for differing from those in other cases.
Korkow's arguments that the sentencing court made insufficient findings
supporting the parole restriction and that the findings were not supported by substantial
evidence also are unavailing. The sentencing court considered relevant Chaney factors
in fashioning its overall sentence and entered specific findings that the parole restriction
was necessary to protect Korkow's children and society at large for an extended period
of time and was appropriate due to the "severity of the case" and Korkow's lack of
remorse and concern. The record is replete with evidence that Korkow's crime was
atrocious. It is undisputed that Korkow's children were present in the home. Korkow
declined to participate in the pre-sentence report, and he made no statements during
allocution indicating remorse or concern. We therefore hold the 50-year parole
restriction made part of Korkow's sentence was not clearly mistaken.
V. CONCLUSION
We REVERSE the court of appeals' ruling that the parole restriction was
excessive and REMAND for re-institution of the original sentence.
37
See Colgan v. State, 838 P.2d 276, 279 (Alaska App. 1992) (upholding 99-
year restriction); accord Alexander v. State , 838 P.2d 269 (Alaska App. 1992);
Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992); Stern v. State, 827 P.2d
442, 450 (Alaska App. 1992).
-13- 6856
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