Opinion
Court of Appeals No. A-9909.
September 3, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-04-10549 CR.
Brian T. Duffy, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Katholyn Runnels, Assistant District Attorney, Adrienne Bachman, District Attorney, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Colin Cotting pleaded guilty to murder in the first degree and sexual assault in the first degree for murdering and raping his stepmother. Superior Court Judge John Suddock sentenced Cotting to 91 years for the murder an d to a consecutive 8-year sentence for the sexual assault. Cotting appeals, arguing that the sentence is excessive. We affirm.
AS 11.41.100(a)(1)(A) and AS 11.41.410(a), respectively.
On October 17, 2004, sixteen-year-old Cotting went to his father's house, knowing that his father was away and that his stepmother would be there alone. Judge Suddock found that when Cotting went to the house, he did so with the intent to rape and kill his stepmother. Judge Suddock described the rape and murder that followed as "about as bad as it gets for teenage conduct or conduct by anybody." He described Cotting's conduct as "really an unspeakable, savage break with the human race of such ferocious intensity, such a[n] irremediable break of our moral taboos, not only against death but against matricide [that the conduct took] Mr. Cotting to the outer boundaries of juvenile criminality."
Judge Suddock concluded that a composite sentence of 99 years of imprisonment was appropriate given the heinous nature of the crime, its brutality, its senselessness, and the "horrific effect it's had on all concerned." Still, Judge Suddock declined to restrict Cotting's parole eligibility beyond the 33 years of imprisonment that Cotting would have to serve before becoming eligible for discretionary parole. Judge Suddock explained that it was difficult to predict Cotting's future behavior based upon his current state of emotional and moral development. Judge Suddock concluded that the parole board, over thirty years in the future, would be in a better position to determine if Cotting should be granted discretionary parole. But Judge Suddock made sure that the parole board would have a full description of the crime, including the pictures, which he described as "among the most shocking, brutal pictures that [he had] ever seen." He stated that he wanted to make sure that the parole board, in making its decision, was fully aware of the brutal nature of the crime that Cotting had committed.
Cotting concedes there is no reported Alaska case that has found a sentence for murder in the first degree excessive. Still, he argues that we should establish a benchmark sentence of 60 years of imprisonment for juvenile offenders convicted of first-degree murder. But we rejected this same argument in Riley v. State. Riley was an eighteen-year-old first offender who was convicted of murder in the first degree. Although we recognized in Riley that a sentencing court had discretion to impose a sentence less than the maximum sentence, we rejected Riley's request to establish a 60-year benchmark and upheld her 99-year sentence. Since Riley, we have repeatedly upheld the maximum sentence for juvenile offenders convicted of first-degree murder. We decline to reconsider our holding in Riley.
720 P.2d 951, 952 (Alaska App. 1986).
Id. at 951-52.
Id. at 952-53.
See, e.g., Perotti v. State, 843 P.2d 649, 649 (Alaska App. 1992); Hightower v. State, 842 P.2d 159, 159 (Alaska App. 1992); Ridgely v. State, 739 P.2d 1299, 1301-02 (Alaska App. 1987).
Cotting also asks this court to consider the United States Supreme Court's decision in Roper v. Simmons where the Eighth and Fourteenth Amendments to the United States Constitution bar the execution of offenders who are under the age of eighteen w hen their crimes are committed. The Court concluded that "juvenile offenders cannot be classified among the worst offenders." The Court relied on three observations to support this conclusion.
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
Id. at 578, 125 S. Ct. at 1200.
Id. at 569, 125 S. Ct. at 1195.
First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions."
Id. (quoting Johnson v. Texas, 509 U.S. 350, 367, 113 S. Ct. 2658, 2668, 125 L. Ed. 2d 290 (1993) and citing Eddings v. Oklahoma, 455 U.S. 104, 115-16, 102 S. Ct. 869, 877, 71 L. Ed. 2d 1 (1982)).
The Court then stated:
The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.
Id. (citing Eddings, 455 U.S. at 115, 102 S. Ct. at 877).
The Court then observed:
The third broad difference is that the character of a juvenile is not as well formed as that of an adult.
Id. at 570, 125 S. Ct. at 1195.
As the State points out, although the Court ruled that the death penalty, as applied to Simmons, was unconstitutional, it allowed the Missouri sentence of "life imprisonment without eligibility for probation, parole, or release except by act of the Governor" to stand.
Id. at 560, 125 S. Ct. at 1189-90 (quoting State ex. rel. Simmons v. Roper, 112 S.W.3d 397, 413 (Mo. 2003)).
Judge Suddock recognized and considered the Simmons decision and the literature regarding juveniles which supported that decision. He concluded that a 99-year sentence w as appropriate for Cotting. But he also declined to restrict Cotting's eligibility for discretionary parole. He concluded that, in spite of Cotting's horrific crimes, there was some possibility that Cotting would change by the time he was eligible for parole at approximately age fifty. He concluded that the parole board would be in the best position at that time to decide whether to release Cotting on discretionary parole.
We conclude that Judge Suddock's sentencing remarks are supported by the record and support the sentence that he imposed. We accordingly conclude that the sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.