Larson v. State

688 P.2d 592, 1984 Alas. App. LEXIS 291
CourtCourt of Appeals of Alaska
DecidedSeptember 14, 1984
Docket6179
StatusPublished
Cited by44 cases

This text of 688 P.2d 592 (Larson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larson v. State, 688 P.2d 592, 1984 Alas. App. LEXIS 291 (Ala. Ct. App. 1984).

Opinion

OPINION

SINGLETON, Judge.

Larry Larson and Richard Buza broke into a home and assaulted and robbed the occupants. As a result, Larson was convicted of burglary in the first degree, AS 11.46.300(a)(1), robbery in the first degree, AS 11.41.500(a)(1), and assault in the second degree, AS 11.41.210(a)(1). Larson’s conviction was affirmed in Larson v. State, 656 P.2d 571 (Alaska App. 1982) (Larson II). Larson received consecutive sentences of ten years for the burglary, twenty years for the robbery, and ten years for the *594 assault, for a total sentence of forty years. This forty-year sentence was made consecutive to a previously imposed eight-year sentence for shooting with intent to wound, former AS 11.15.150. 1 Larson appeals his total sentence, contending that it is excessive. Specifically, he argues that the trial court erred (1) in treating him as a third felony offender, (2) in applying the same aggravating factors to increase the presumptive sentence for each offense, and, (3) in imposing sentences that are consecutive both to each other and to the previously imposed eight-year term. We affirm in part and reverse in part. We conclude that Larson should not have been treated as a third felony offender and that the record does not support a sentence of more than forty years’ imprisonment. If the same sentences are imposed on remand, they should not be made consecutive to the eight-year sentence previously imposed on Larson. In all other respects we affirm the judgment of the superior court.

THE OFFENDER

Larry Larson was twenty-eight years of age on July 9, 1980, when the instant offenses were committed. He left school at the age of fifteen, but subsequently acquired his G.E.D. degree; he has taken a number of college courses while incarcerated. Larson is of above-average intelligence and has readily found employment when he sought it. The record reflects that he is a conscientious worker within and outside of prison. He received commendations for his work as a prison cook and prison law librarian. Larson is not suffering from a major mental illness. However, he apparently has an alcohol problem.

Mr. Larson’s good qualities, his intelligence and industriousness, are counterbalanced by an extensive criminal record. In 1968, at the age of sixteen, Larson was adjudicated a delinquent based on three incidents, each of which would have been a felony had he been an adult. One of those offenses was the armed robbery of a fifty-four-year-old man who had given Larson and his brother a ride. 2 Larson spent time in juvenile institutions for these offenses.

Four years later, in July of 1972, Larson was sentenced as an adult for an armed robbery of a cab driver under circumstances similar to his juvenile offense. Larson received a five-year suspended imposition of sentence. In August of 1975, shortly before his conviction was set aside for the 1971 robbery, Larson shot and wounded an innocent bystander during a barroom fight. He was convicted of shooting with intent to wound and received an eight-year sentence with no parole eligibility until he served one-third of his sentence. See Larson I, 614 P.2d at 777. Larson remained in prison on this charge from December 19, 1975 until June 10, 1980 when he was released on bail pending appeal. As a condition of release, Larson entered the Clitheroe alcohol treatment center. Larson remained at the Clitheroe Center until July 9, 1980, when he was reported AWOL. The instant offenses occurred that night.

THE OFFENSES

On July 9, 1980, at approximately 3:30 a.m., D.S. and his wife, M.S., had been sleeping when D.S. heard a commotion on the porch and decided to investigate. In the course of his investigation, D.S. opened the door; Larson and Buza accosted him at gunpoint and forced their way into the apartment. It appears that Larson and Buza mistakenly believed that the S. family were cocaine dealers and had a large supply of cocaine or money in the apartment. The S.’s indicated that they had no cocaine. Buza demanded all their money and took *595 the ten dollars that D.S. had. In the meantime Larson led M.S. into the bedroom where he forced her to lay down on her bed and spread her legs. He then jammed the barrel of the rifle up against her anus. M.S. pled with Larson not to assault her as she was hemorrhaging due to having recently given birth to her second child.

D.S. was also forced to lie on the ground with his legs spread apart while he was kicked in the groin several times by Buza. During the course of the burglary/robbery, the victims’ puppy was stomped to death. When it became clear that the S.’s had neither cocaine nor additional money, Buza and Larson left. They were almost immediately apprehended and their weapons were found abandoned nearby. See Larson II, 656 P.2d at 572-73.

THE SENTENCE

The trial court made the following findings of fact and entered the following conclusions of law:

The court having considered the evidence and the arguments of counsel makes the following findings of fact:
As to Count I [Burglary]:
1. The defendant has a criminal history consisting of prior convictions for offenses that involved aggravated or repeated instances of assaultive behavior.
2. The conduct constituting the offense was among the most serious conduct included in the definition of the offense.
3. The defendant was on release under AS 12.30.020 or AS 12.30.040 for another felony conviction.
As to Count II [Robbery]:
1. The defendant has a criminal history consisting of prior convictions for offenses that involved aggravated or repeated instances of assaultive behavior.
2. The defendant knew that the offense involved more than one victim.
3. The conduct constituting the offense was among the most serious conduct included in the definition of the offense.
4. The defendant was on release under AS 12.30.020 or AS 12.30.040 for another felony conviction.
As to Count IV [Assault]:
1. The defendant’s conduct during the commission of the offense manifested deliberate cruelty to [M.S.].
2. The defendant has a criminal history consisting of prior convictions for offenses that involved aggravated or repeated instances of assaultive behavior.
3. The conduct constituting the offense was among the most serious conduct included in the definition of the offense.
4. The defendant was on release under AS 12.30.020 or AS 12.30.040 for another felony conviction.
Having found the above aggravating factors by clear and convincing evidence and that there are no mitigating factors, this court finds that under the Chaney

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Bluebook (online)
688 P.2d 592, 1984 Alas. App. LEXIS 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larson-v-state-alaskactapp-1984.