KORKOW v. State

258 P.3d 932, 2011 Alas. App. LEXIS 94, 2011 WL 3862783

• Court: Court of Appeals of Alaska
• Decided: September 2, 2011
• Docket: A-10488
• Status: Published

Opinions

OPINION

COATS, Chief Judge.

Jimmy Jack Korkow stabbed his wife sixty-two times while their children slept nearby. Following this attack, Korkow turned himself in to the police. The jury convicted Korkow of murder in the first degree. Superior Court Judge Eric Aarseth sentenced Korkow to ninety-nine years of imprisonment. In addition, Judge Aarseth ordered that Korkow's eligibility for discretionary parole be restricted until he had served at least fifty years of his sentence. On appeal, Kor-kow does not attack his sentence of ninety-nine years of imprisonment, but he does attack the restriction on his parole eligibility. By statute, Korkow's ability to apply for discretionary parole is already restricted for thirty-three years, when he will be sixty-seven years old. He argues, and we agree, that the additional restriction on his parole is excessive.

Factual and procedural background

Korkow appeared at the Alaska State Trooper post in Soldotna early one morning in March 2005. He told the troopers that he had done something bad and requested that the police go to his apartment in Anchorage. Upon arriving at Korkow's Anchorage residence, officers discovered a lurid seene: Kor-kow's wife, Teresa, lay dead and wrapped in bedding on the living room floor. A knife protruded from Teresa's left ear, and another knife was buried to the hilt in her chest. Two more knives with bent blades were located near the body. In all, Teresa had been stabbed at least sixty-two times with four different knives. Police also discovered a broken tequila bottle near Teresa's body, and the autopsy revealed that she suffered blunt force trauma to her head. The Korkows' three children-aged six, seven, and eleven-were discovered asleep in the apartment. The eleven-year-old was in her closet. She later explained that she had gone into the closet to muffle the sounds of her mother screaming.

The State indicted Korkow for murder in the first degree.¹ Korkow was convicted on this charge in a jury trial conducted by Judge Aarseth.

In sentencing Korkow, Judge Aarseth first observed that, while Korkow had a prior criminal record, it was "not that remarkable." He concluded that Korkow's prior offenses were "relatively innocuous." Giving Korkow the benefit of the doubt, he concluded that the murder was motivated by extreme rage and that there was no evidence that Korkow had tortured his wife.

Judge Aarseth primarily based Korkow's sentence on the brutality of his attack on his wife. He explained that Korkow had struck Teresa in the head with a blunt object, probably a tequila bottle, and had proceeded to stab her sixty-two times. Korkow had used very long knives, and each of the sixty-two deep wounds he inflicted could have caused serious injury or death. Judge Aarseth concluded that Korkow "focused on grievously mutilating [Teresa's] body," exhibiting a "very sick state of mind."

Judge Aarseth concluded that the crime was additionally aggravated by the fact that Korkow's three children were in the home and at least one child knew something was happening, as she was found sleeping or hiding in her closet. He found that Korkow was a "worst offender" because he had killed his wife, with whom he was supposed to be in a trusting relationship, and because Korkow committed the murder in the presence of their children.

Judge. Aarseth explained his decision to restrict Korkow's eligibility for parole. He concluded that, based upon the severity of the case and Korkow's lack of remorse, it was necessary to restrict Korkow's eligibility for parole in order to protect the public and Korkow's children. He pointed out that, by statute, Korkow would be eligible for parole after serving thirty-three and one-third years, when he would be almost seventy years old. Judge Aarseth stated that, at that time, Korkow's children would be in their forties and would, in all probability, have families of their own. He concluded that, to protect Korkow's children, as well as the rest of society, he needed to restrict Korkow's parole until he had served fifty years of his sentence.

Why we conclude that the restriction on Korkow's parole was clearly mistaken

By statute, Korkow had to serve one-third of his ninety-nine-year sentence before being eligible for discretionary parole.² A sentencing judge has the authority to additionally restrict a defendant's eligibility for discretionary parole³ But, when the sentencing court imposes a lengthy sentence, "Alaska law presumes that 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 of Corrections rehabilitative measures.⁴ We have also indicated that a sentencing court should not place "inordinate emphasis . on predictions of possible future misconduct." ⁵

These cases derive from the recognition that judicial officers have a limited ability to predict the future at the time of sentencing. In contrast, the Parole Board is an institution which is designed to review whether a defendant, after serving a portion of a sentence, can be safely released from imprisonment. Unlike the sentencing court, the Parole Board is in a position to make its decision after the defendant has served a substantial portion of the sentence, and in light of the defendant's observed behavior and attitude during years spent in the custody of the Department of Corrections.

Deference to the Parole Board seems appropriate under the facts of this case. Judge Aarseth found that, although Korkow had a criminal record, his eriminal record was "not that remarkable" and was "relatively innocuous." In addition, Judge Aarseth concluded that Korkow's offense was motivated by rage, but there is no evidence that Korkow has a history of similar assaultive behavior.

Korkow's assault on his wife was horrific. And the sheer brutality of the assault, coupled with the fact that it occurred while Korkow's children were asleep in the house, justified a substantial sentence. But Judge Aarseth sentenced Korkow to the maximum ninety-nine years of imprisonment.

As we have pointed out, by statute, Kor-kow is not eligible for parole for thirty-three years, when he will be sixty-seven years old. And just because Korkow is eligible to apply for parole does not mean that he will be paroled. In fact, the Alaska Supreme Court has cautioned sentencing judges to sentence defendants "on the assumption that the entire term may be served." ⁶

Judge Aarseth's decision to additionally restrict Korkow's eligibility for discretionary parole was based upon predictions that Kor-kow would be dangerous to the public and might constitute a danger to his then middle-aged children and their children. This is certainly a possibility, but a speculative one at best. Because the Parole Board will be making its decision far in the future, the Parole Board has significant advantages over the sentencing court in making this decision. We conclude that, given the record in this case, and given the length of Korkow's sentence of imprisonment, Judge Aarseth's decision imposing the additional restriction on Korkow's eligibility for discretionary parole is clearly mistaken.⁷

Korkow makes one additional argument: Korkow argues that Judge Aarseth erred in not making corrections to a psychological report which was attached to the presentence report. The record shows that Korkow waived this issue at sentencing by agreeing to file an addendum to the report. There is, however, one obvious misstatement in the psychological report that should be corrected: The report states that Korkow had a prior felony assault conviction. This is incorrect; the conviction was for misdemeanor assault.

Conclusion

The parole restriction is REVERSED, and the superior court shall amend the judgment and the psychological report as specified in this opinion.

BOLGER, Judge, dissenting.

1 . AS 11.41.100(@a)(1)(A).

2 . AS 33.16.090(b)(1).

3 . AS 12.55.115.

4 . Cheely v. State, 861 P.2d 1168, 1181 (Alaska App.1993).

5 . Skrepich v. State, 740 P.2d 950, 954 (Alaska App.1987); Maal v. State, 670 P.2d 708, 711 (Alaska App.1983).

6 . Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980).

7 . McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).