Marzak v. State

796 P.2d 1374, 1990 Alas. App. LEXIS 77, 1990 WL 123127
CourtCourt of Appeals of Alaska
DecidedAugust 24, 1990
DocketNo. A-2746
StatusPublished
Cited by2 cases

This text of 796 P.2d 1374 (Marzak 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
Marzak v. State, 796 P.2d 1374, 1990 Alas. App. LEXIS 77, 1990 WL 123127 (Ala. Ct. App. 1990).

Opinion

OPINION

Before BRYNER, C.J., and COATS and SINGLETON,* JJ.

COATS, Judge.

Robert S. Marzak was convicted, based upon his plea of nolo contendere, of solicitation of murder in the first degree, AS 11.41.100(a)(1) and AS 11.31.110; attempted murder in the first degree, AS 11.41.-100(a)(1) and former AS 11.31.100; and assault in the first degree, AS 11.41.200(a)(1). All of these offenses were class A felonies.1 Superior Court Judge Karl S. John-stone sentenced Marzak to twenty years of imprisonment on each conviction. He imposed the twenty years of imprisonment for solicitation of murder and attempted murder concurrently. He imposed the assault sentence consecutively. Thus, Mar-zak’s composite sentence is forty years of imprisonment. Marzak appeals his sentence, arguing that Judge Johnstone erred in his treatment of several aggravating and mitigating factors. He also argues that his sentence is excessive. We affirm.

Robert Marzak and Richard Erickson owned a wrecking yard in Fairbanks; They leased the wrecking yard from its former operator, Andrew Twogood, who also owned the ABC Wrecking Yard in Anchorage. Twogood discovered that Erickson and Marzak stored stolen automobiles at their wrecking yard and suspected that they were dealing in stolen automobiles and parts. Twogood reported his suspicions to the police, who investigated. Twogood testified as a witness before the grand jury, and Marzak was ultimately convicted for theft.

Marzak contacted Darren Taylor and arranged to have Taylor kill Twogood. Mar-zak suggested that Taylor run over Two-good with an automobile. Taylor and Robert Machado drove to Anchorage to carry out the assignment. Apparently without Marzak’s knowledge, Taylor decided to kill Twogood with a bomb. On May 19, 1986, Taylor placed a bomb in Twogood’s car while Machado acted as a lookout. A short time later, the bomb exploded, seriously injuring Twogood and Fred Neubauer, one of Twogood’s employees. Twogood was blinded by the explosion. His body was burned and filled with shrapnel. His eardrums were burst and parts of his fingers [1376]*1376and body were blown off. Neubauer received multiple scars on his right arm, which still contains three pieces of shrapnel. Neubauer was in the hospital approximately four days and has had surgery to remove some of the shrapnel.

All of Marzak’s convictions were for class A felonies. A class A felony is punishable by a maximum sentence of twenty years of imprisonment. AS 12.55.125(c). Although Marzak had previously been convicted of two prior felony offenses, both for theft in the second degree, Marzak had not been convicted of these offenses at the time he committed his current offense. Consequently, Marzak was subject to sentencing as a first felony offender. Sawyer v. State, 663 P.2d 230 (Alaska App.1983). As a first felony offender convicted of a class A felony which caused serious physical injury, Marzak was subject to a presumptive sentence of seven years of imprisonment. AS 12.55.125(c)(2).

Marzak first contends that Judge Johnstone erred in refusing to find his proposed mitigating factor, that Marzak, “although an accomplice, played only a minor role in the commission of the offense.” AS 12.55.155(d)(2). When we review the trial court’s findings regarding the applicability of statutory aggravating and mitigating factors, we reverse the trial court only where we find that the trial court's decision was clearly erroneous. Juneby v. State, 641 P.2d 823, 834-35 (Alaska App.1982), mod. on other grounds, 665 P.2d 30 (Alaska App.1983). We conclude that Judge Johnstone was not clearly erroneous in rejecting Marzak’s proposed mitigating factor. The record reflects that Marzak sought out Taylor and arranged for Taylor to kill Twogood. Judge Johnstone could properly conclude that Marzak played a substantial role in the commission of the offense.

Marzak next contends that Judge Johnstone erred in finding that Marzak’s “conduct created a risk of imminent physical injury to three or more persons, other than accomplices.” AS 12.55.155(c)(6). Marzak points out that it is uncontested that he did not know that Taylor would attempt to kill Twogood with a bomb: apparently Marzak suggested that Taylor run over Twogood. Marzak contends that this conduct would not have created the same sort of risk as Taylor’s plan, which involved a bomb. We conclude that Judge John-stone was not clearly erroneous in finding that this aggravating factor applied to Mar-zak’s conduct. When Marzak hired Taylor to kill Twogood, it was reasonably forseea-ble that he was setting in motion a plan which was extremely hazardous, not only to Twogood, but to other people. The explosion actually created a substantial risk to at least three people. See Machado v. State, — P.2d -, -, Op. No. 1067 at 24-25 (Alaska App., August 2k, 1990). We conclude that Judge Johnstone was not clearly erroneous in finding the aggravating factor.

Marzak next contends that Judge Johnstone erred in finding the aggravating factor that “the conduct constituting the offense was among the most serious conduct included in the definition of the offense.” AS 12.55.155(c)(10). Marzak was convicted of hiring Taylor to kill Twogood. We have held that contract killings are among the most serious of murder offenses. When the trial judge imposes the maximum sentence of ninety-nine years of imprisonment for a contract murder, we have consistently upheld the sentence. See Lewis v. State, 731 P.2d 68, 72-73 (Alaska App.1987); Cassell v. State, 645 P.2d 219, 224 (Alaska App.1982); Hoover v. State, 641 P.2d 1263 (Alaska App.1982). In the instant case, it was a mere fortuity that the attempted murder of Twogood was unsuccessful. As it was, Twogood’s injuries are extremely serious and permanent. The explosion also could easily have killed Neu-bauer. We conclude that Judge Johnstone did not err in finding that the conduct constituting the offense was among the most serious conduct included in the definition of the offense.

Judge Johnstone found the mitigating factor that Marzak “assisted authorities to detect, apprehend, or prosecute other persons who committed an offense.” [1377]*1377AS 12.55.155(d)(12). Marzak contends that Judge Johnstone did not give sufficient weight to this mitigating factor. There is no question that Marzak took substantial steps to aid the authorities in building a case against his codefendants. However, Judge Johnstone concluded that Marzak had benefited from his cooperation because the state had not pursued all the possible charges which it could have initiated against him. In reviewing whether the trial judge properly adjusted the presumptive sentence based upon aggravating and mitigating factors, we reverse the decision of the trial judge only when we find an abuse of discretion. Jones v. State, 771 P.2d 462, 467 (Alaska App.1989). We do not believe that Judge Johnstone erred in balancing the aggravating and mitigating factors in this case.

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Bluebook (online)
796 P.2d 1374, 1990 Alas. App. LEXIS 77, 1990 WL 123127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marzak-v-state-alaskactapp-1990.