Opinion
Court of Appeals No. A-10624 Trial Court No. 3PA-09-204 CR No. 5992
11-27-2013
KENNETH GOLDSBURY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Paul E. Malin, Law Office of Christine Schleuss, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Paul E. Malin, Law Office of Christine Schleuss, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
After a heated disagreement over a box of drywall mud, Kenneth A. Goldsbury discharged a round of bird shot through the door of his motel room at Marvin "Jimbo" Long. Long received only minor injuries. In a trial conducted by Superior Court Judge Kari Kristiansen, a jury convicted Goldsbury of attempted murder in the first degree and assault in the second degree for shooting Long, along with other charges. Judge Kristiansen sentenced Goldsbury to a composite sentence of 26 years' imprisonment with 16 years suspended, leaving Goldsbury with a total of 10 years to serve.
AS 11.41.100.
AS 11.41.210(a)(1).
Goldsbury appealed his conviction and sentence to this court. We affirmed Goldsbury's convictions. But we accepted the State's concession that the superior court erred in sentencing Goldsbury separately for attempted murder in the first degree and assault in the second degree. We concluded that those charges should have merged. We accordingly remanded the case for re-sentencing.
Goldsbury v. State, 2012 WL 2203055 (Alaska App. June 13, 2012).
On re-sentencing, the superior court merged the second-degree assault conviction with the attempted first-degree murder conviction. The court imposed a sentence of 20 years with 11 years suspended on the attempted first-degree murder conviction. The court imposed concurrent sentences on the other convictions.
Goldsbury argues that the sentence of 20 years with 11 years suspended for attempted first-degree murder is excessive. He contends that the superior court, in imposing sentence, did not give sufficient weight to the fact that the victim, Marvin Long, received only minor injuries. Goldsbury relies on our decision in Starkweather v. State. In Starkweather, we discussed the legislative history behind the reclassification of attempted murder in the first degree, which made it an unclassified felony with the same penalty range as second-degree murder — 5 to 99 years of imprisonment. We indicated that the legislative history established that "the degree of harm suffered by the victim is intended to be a primary factor in determining the defendant's sentence."
244 P.3d 522 (Alaska App. 2010).
Id. at 531.
Id.
But, clearly, other factors enter into a court's decision to impose a sentence for attempted first-degree murder. First, Goldsbury's sentence is toward the bottom of the permissible sentencing range. The minimum sentence for attempted first-degree murder is 5 years of imprisonment. And, as we have stated, the sentencing range runs all the way up to 99 years of imprisonment.
In imposing Goldsbury's sentence, the superior court relied on a previous shooting incident in which Goldsbury had been involved. In 2002, according to the presentence report, Goldsbury had shot at his cousin, Daniel Duncan. Goldsbury told the police that he (Goldsbury) had been on his boat when an intoxicated Duncan came onto the boat and started an argument. Then, Goldsbury said, Duncan left the boat but returned a minute later. According to Goldsbury, he thought that Duncan was carrying a gun when he returned to the boat, and so he fired two shots at Duncan (apparently hitting Duncan with the second shot). Goldsbury claimed self-defense in that 2002 shooting, and no charges were ever filed against him.
In addition, the presentence report shows convictions for driving while intoxicated and refusal to take a breath test in 1994, and convictions from 1983 for selling cocaine and marijuana. The court relied on the information in the presentence report, along with the fact of Goldsbury's present convictions, to conclude that Goldsbury "possesses weapons when he's intoxicated and makes decisions to use those weapons in circumstances that are not reasonable." The court pointed out that Goldsbury had fired a shotgun through a door when Goldsbury knew Long was outside the door. And yet Goldsbury continued to deny that the case was serious and continued to insist that his actions were reasonable. The judge concluded that Goldsbury used weapons in a reckless manner and had no appreciation of the gravity of his offense. The court stated that it was necessary to impose a substantial sentence and to have Goldsbury closely monitored on probation in order to protect the public.
Goldsbury contends that the trial court did not sufficiently consider the fact that Marvin Long's injuries were minor and that the court may have been misled about the nature of Long's injuries. But the sentencing judge presided over Goldsbury's trial and heard extensive testimony and discussion concerning Long's injuries. And it was essentially undisputed that Long's injuries were not serious. It appears that the court did not mention Long's injuries in imposing sentence because those injuries did not factor prominently in the sentence. The court apparently imposed a sentence in the lower range of permissible sentences based upon the absence of serious injury. As we have previously stated, the court gave substantial reasons for imposing a sentence above the statutorily required minimum sentence.
We conclude that the sentence is not clearly mistaken.
See McClain v. State, 519 P.3d 811, 813-14 (Alaska 1974).
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The judgment of the superior court is AFFIRMED.