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Korkow v. State (9/2/2011) ap-2322

Korkow v. State (9/2/2011) ap-2322

                                                 NOTICE 
        The text of this opinion can be corrected before the opinion is published in the Pacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to the 
        attention of the Clerk of the Appellate Courts. 

                                  303 K Street, Anchorage, Alaska   99501
 
                                           Fax:  (907) 264-0878
 
                            E-mail:  corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JIMMY JACK KORKOW,                                ) 
                                                  )         Court of Appeals No. A-10488 
                            Appellant,            )       Trial Court No. 3AN-05-1915 CR 
                                                  ) 
             v.                                   )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             )        No. 2322 - September 2, 2011 
                                                  ) 

                 Appeal     from    the  Superior     Court,   Third    Judicial   District, 
                 Anchorage, Eric Aarseth, Judge. 

                 Appearances:   Glenda   Kerry,   Law   Office   of   Glenda   J.   Kerry, 
                 Girdwood,   for   the   Appellant.    Mara   E.   Michaletz,   Assistant 
                 District    Attorney,    Adrienne      Bachman,      District   Attorney, 
                 Anchorage, and Richard A. Svobodny, Acting Attorney General, 
                 Juneau, for the Appellee. 

                 Before:    Coats,    Chief   Judge,   and   Mannheimer       and   Bolger, 
                 Judges. 

                 COATS,      Chief Judge. 
                 BOLGER, Judge, dissenting. 

----------------------- Page 2-----------------------

                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, Korkow 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 scene: Korkow'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. 

                                                 - 2 -                                            2322
 

----------------------- Page 3-----------------------

                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 

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

                                                 - 3 -                                             2322 

----------------------- Page 4-----------------------

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 parole.3                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 

        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). 

                                                   - 4 -                                              2322
 

----------------------- Page 5-----------------------

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 criminal 

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, Korkow 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 Korkow 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 

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

                                                  - 5 -                                               2322 

----------------------- Page 6-----------------------

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. 

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

                                              - 6 -                                          2322 

----------------------- Page 7-----------------------

BOLGER, Judge, dissenting. 

                 Jimmy Korkow committed a singularly callous murder. He stabbed his wife 

sixty-two times while their daughters slept nearby, then left her body on the living room 

floor with knives sticking out of her chest and her ear. After explaining the relevant 

sentencing considerations, Judge   Aarseth reasonably concluded that Korkow should 

remain in prison until he reaches an advanced age. 

                 Judge Aarseth made detailed findings explaining his decision to restrict 

                                    1 
Korkow's parole eligibility.  The question we must determine is whether his decision 
was clearly mistaken.2        We apply this test "not by imposition of an artificial ceiling[,] 

which limits a large class of offenses to the lower end of the sentencing spectrum, but, 

rather, by an examination of the particular facts of the individual case in light of the total 
range of sentences authorized by the legislature."3 

                 Judge Aarseth found that Korkow "focused on grievously mutilating [his 

wife's]   body,"     exhibiting     a  "very   sick   state  of   mind."   The    judge   also   found   that 

Korkow's children were present and that one child heard their father kill their mother - 

a "very significant" factor in his sentencing decision. 

                 The   judge   explained   that   his   primary   sentencing        goal   was    to   protect 

Korkow's children so that they could live their lives and eventually raise their own 

families without fear. The judge also intended to reaffirm social norms by sending a 

         1   AS   12.55.115   provides,   "The   court   may,   as   part   of   a   sentence   of   imprisonment, 

further restrict the eligibility of a prisoner for discretionary parole for a term greater than that 
required under [the parole statutes]." 

        2    Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992) (reviewing a parole restriction 

to determine if it was clearly mistaken). 

        3    State v. Wentz, 805 P.2d 962, 965 (Alaska 1991) (emphasis in original). 

                                                    - 7 -                                               2322
 

----------------------- Page 8-----------------------

message that murdering one's spouse is not an acceptable way of dealing with marital 

stress. 

                 The   judge   found   that   there   was   a   "real   concern"   that   Korkow   would 

violently attack his family in the future, given the unprovoked nature of this "atrocious 

crime."   The   judge   explained   that   this   brutal   incident   indicated   that   Korkow   had   "a 

complete lack of concern" for anyone other than himself and that he could not be trusted 

to live in a free society. 

                 Judge Aarseth estimated that Korkow would normally be eligible for parole 

when he was about seventy years old and that his children would then be forty-four to 

forty-nine years of age. The judge explained why this possibility raised a serious concern 

for the protection of Korkow's children and society at large: 

                         Based on the severity of this case, from what I perceive 
                 as your lack of remorse, the lack of concern you expressed ... 
                 [at]   the   time   you   committed   this   offense   for   your   family 
                 members including the children, ... I find [for] the protection 
                 of the children left behind ... and all others ... in society that 
                 I do   need to restrict your parole and I will restrict it until 
                 you've   served   fifty   years   of   your   sentence.  At   that   time, 
                 concerns regarding your potential for rehabilitation can be 
                 considered      by   the   parole    board,    but   before    then,   the 
                protection of the public, of your children, of their children are 
                 going to come first. 

The judge thus specifically addressed why the normal parole eligibility term would be 

insufficient to protect the public and ensure Korkow's reformation. The judge could 

reasonably      conclude     that  Korkow      would     be  more    feeble,   and   consequently       less 

dangerous,   if     he  was   released    at   age  eighty-three    compared     to  his   normal   parole 

eligibility at age sixty-six. 

                                                   - 8 -                                              2322
 

----------------------- Page 9-----------------------

                 We   recently   addressed   a   similar   sentencing   issue   when   we   upheld   the 

constitutionality of a statute that imposed a sentence of ninety-nine years' imprisonment 
without discretionary parole for the murder of a police officer.4 We recognized that the 

legislature could reasonably conclude that a lifetime parole restriction was consistent 

with the constitutional goals of punishment - to protect the public from such a brazen 

offender, to express community condemnation for an attack on an officer engaged in his 
official duties, and to deter the defendant and others from committing similar crimes.5 

                 In this case, Judge Aarseth's more limited decision to restrict Korkow's 

parole eligibility for fifty years was likewise supported by several of the constitutional 

goals of punishment. The judge explained why a parole restriction was necessary to 

protect Korkow's children and the public at large. The judge also relied on the cruel and 

unprovoked        nature   of  this   crime   and   Korkow's       lack   of  remorse     to  explain   why 

rehabilitation was not a practical consideration. Moreover, the parole restriction directly 

promoted   the   judge's   primary   sentencing   consideration   -   the   rights   of   Korkow's 

children as the surviving victims of this crime. 

                 In   my   opinion,   the   judge's   findings   are   consistent   with   the   discretion 

granted by statute, the limits imposed by the Alaska Constitution, and the facts of this 

heinous offense. I would affirm. 

        4    Forster v. State, 236 P.3d 1157, 1174-75 (Alaska App. 2010). 

        5   Id. 

                                                    - 9 -                                                2322 
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