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affirming a restriction on Page's eligibility for discretionary parole
Summary of this case from Page v. StateOpinion
Court of Appeals No. A-10040.
September 22, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-05-1308 Cr.
Dan S. Bair, Assistant Public Advocate, Appeals Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
This case is before us a second time. In our initial decision in this case, Page v. State, Alaska App. Memorandum Opinion No. 5548 (December 2, 2009), 2009 WL 6327506, we directed the superior court to further explain why it had restricted Page's eligibility for discretionary parole. Page, 2009 WL 6327506 at *7. The superior court has now done that, and the parties have filed supplemental briefs on this issue.
Underlying facts of the case
In April 2005, Page was in California buying illicit drugs. While he was gone, Page's girlfriend, Kira Gray, took a large bag of cocaine out of Page's car and gave it to Terrell Houngues. Houngues took nine ounces of the cocaine, and then he returned the bag to Gray. Houngues sold some of this cocaine, and he gave some of it away.
When Page learned of this incident, he became quite angry. He made it clear to Gray that he expected her to take curative action regarding the missing cocaine. To placate Page, Gray telephoned Houngues and told him that Page had assaulted her; she also told Houngues that she knew where Page kept more drugs, and she suggested that she and Houngues could go steal these drugs. All of this was a pretext to lure Houngues to a remote location in the Matanuska-Susitna Valley.
Using Page's car, Gray picked up Houngues and drove him out to the Mat-Su Valley. Page and two accomplices (Tommie Patterson and Fredrick Johnson) drove to the same spot in a different car, a white Kia. When Gray arrived at the agreed-upon location with Houngues, she drove past the place where Page and his accomplices were waiting in a wooded area. Page and the others then followed Gray.
Page and his friends confronted Houngues and then, at gunpoint, they forced Houngues into the trunk of the Kia. They ultimately drove Houngues to another remote spot, on a dirt road.
After they parked the car, Page pulled Houngues out of the trunk and confronted him about the stolen cocaine. Gray then shot Houngues in the leg. When Houngues began screaming in pain and jumping around, Page told Gray to "shut [Houngues] up". In response, Gray shot Houngues four times in the head. Tommie Patterson then shot Houngues several times while Houngues lay on the ground.
Following this murder, Page and his friends drove to a nearby lake and threw their guns into the lake. They then dropped off the Kia, retrieved Page's car, and drove back to Anchorage. (A little over a week later, Page, Patterson, and Johnson poured gas on the Kia and set it on fire, destroying the vehicle.)
Based on episode, a jury convicted Page of second-degree murder and kidnapping.
AS 11.41.110(a)(1) and AS 11.41.300(a)(1)(C), respectively.
When Superior Court Judge Eric Smith sentenced Page, the judge declared that he was not going to second-guess the jury's verdict. In other words, Judge Smith accepted the jury's decision to acquit Page of first-degree murder, and the judge sentenced Page under the assumption that Page had not acted with the specific intent to kill Houngues.
Nevertheless, Judge Smith concluded that Page bore a large responsibility for Houngues's death: "[Page and his friends] took [Houngues] to a deserted spot, with loaded pistols, under high[ly] emotional [circumstances]", and "[Page] made it very clear to [his girlfriend, Gray] that she needed to `fix' what had happened" — i.e., inflict retribution for Houngues's theft of a large quantity of Page's cocaine. Judge Smith further found that Page was a large-scale drug dealer, and that Page was motivated by the desire "to make an example of somebody who ripped [him] off".
Based on these factors, Judge Smith concluded that Page's second-degree murder sentence should exceed the benchmark range for a first felony offender (20 to 30 years to serve). The judge sentenced Page to serve 50 years for the murder (70 years with 20 years suspended). For the kidnapping, Judge Smith imposed a consecutive 15 years to serve (20 years with 5 years suspended). Thus, Page's composite sentence is 65 years to serve. In our previous decision, we concluded that this composite term of imprisonment was not clearly mistaken. Page, 2009 WL 6327506 at *6.
See Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
The restriction on Page's parole eligibility
After Judge Smith sentenced Page to a composite sentence of 65 years to serve, he exercised his authority under AS 12.55.115 and ordered that Page not be eligible to apply for discretionary parole until he served 30 years of this sentence.
This was essentially a 10-year delay of Page's parole eligibility. Under the normal rules for determining a prisoner's eligibility to apply for discretionary parole, Page would have been eligible to apply for parole after serving approximately 20 ½ years in prison — one-third of his 50-year sentence for second-degree murder (approximately 16 years, 8 months) plus one-fourth of his consecutive 15-year sentence for kidnapping (approximately 3 years, 9 months). See AS 33.16.090(b)(1) and (b)(7)(C).
Under Alaska law, when a sentencing judge restricts a defendant's parole eligibility, the judge must "specifically address the issue of parole restriction [and must set] forth with particularity his or her reasons for concluding that the [normal] parole eligibility prescribed by [statute] is insufficient to protect the public and [e]nsure the defendant's reformation." Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).
In our previous decision in this case, we concluded that Judge Smith's sentencing remarks were insufficient to explain his decision to restrict Page's parole eligibility, and we therefore directed the judge to reconsider the parole eligibility restriction. Page, 2009 WL 6327506 at *7.
On remand, Judge Smith found that the parole restriction was justified under both branches of the Stern test. That is, the judge found that normal parole eligibility would be inadequate to protect the public and inadequate to ensure Page's rehabilitation.
Judge Smith noted that, although the current offenses were Page's first felonies, Page had been convicted of several misdemeanors (and a probation violation) during the three years preceding these felonies. Judge Smith concluded that, in the context of Page's sentencing for kidnapping and murder, Page's misdemeanors were particularly serious because they involved weapons misconduct, resisting arrest, failing to appear, and providing false information to a police officer. The judge declared that these misdemeanors demonstrated "[Page's] lack of respect for authority and [his] disturbing tendency to believe that . . . societal rules do not apply to him."
Judge Smith further noted that Page was a cocaine dealer when he committed the kidnapping and murder, and that these crimes were directed at someone who had stolen a substantial amount of cocaine from him. Even though Page was not the one who fired the bullets that killed Houngues, and even though the jury acquitted Page of intending to kill Houngues, Judge Smith found that Page "[bore] substantial responsibility for the shooting" — in that Page set up the kidnapping and planned the abduction of Houngues to a remote location where the murder was committed. Page then "provided the gun to his highly intoxicated and somewhat manipulatable [teenage] girlfriend, who pulled the trigger."
Judge Smith also commented on Page's "deplorable" behavior while he was in jail awaiting trial. The judge noted that Page committed fourteen infractions in jail, including "picking fights with other inmates, threatening other inmates and correctional officers, [and] lying to [the jail] staff". Judge Smith concluded that these infractions were further evidence of Page's "complete lack of respect for authority", as well as Page's "inability to behave appropriately even in a highly structured setting".
Judge Smith noted that, under the normal rules governing parole eligibility, and given Page's composite sentence of 65 years to serve, Page would be eligible to apply for discretionary parole release when he was 38 years old. The judge concluded, "[b]ased on [Page's] history, his behavior, and his crime[s], . . . that he will not have had sufficient time to rehabilitate [himself] by that time" and that "he will continue to pose a significant threat to the public."
In explaining why he chose to delay Page's parole eligibility for an additional 10 years past the normal statutory eligibility date, Judge Smith adverted to a comment that Page's attorney made during the sentencing proceedings — that people like Page generally become much less dangerous once they turn fifty years old.
For these reasons, Judge Smith again imposed the 30-year restriction on Page's eligibility to apply for discretionary parole. Based on our review of Judge Smith's findings and the arguments presented to us by the parties in their supplemental briefs, we conclude that Judge Smith's decision to restrict Page's parole eligibility is not clearly mistaken. Accordingly, that decision is AFFIRMED.
A decision to restrict a defendant's parole eligibility is reviewed under the "clearly mistaken" test set forth in McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) — the test that governs review of discretionary sentencing decisions. See, e.g., Marino v. State, 934 P.2d 1321, 1335 (Alaska App. 1997); Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).