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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska v Teila V. Tofelogo (6/28/2019) sp-7381

State of Alaska v Teila V. Tofelogo (6/28/2019) sp-7381

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



STATE  OF  ALASKA,                                               )  

                                                                 )    Supreme  Court  No.  S-16931  

                                Petitioner,                      )    Court  of  Appeals  No.  A-12542  

                                                                 )  

                                                                                                                                 

           v.                                                    )    Superior Court No. 3KO-14-00688 CR  

                                                                 )  

                   

TEILA V. TOFELOGO,                                                                         

                                                                 )    O P I N I O N  

                                                                 )  

                                Respondent.                                                              

                                                                 )    No. 7381 - June 28, 2019  

                                                                 )  



                                                                                                                    

                      P             

                        etition for Hearing from the Court of Appeals of the State of  

                                                                                                                   

                     Alaska, on appeal from the Superior Court of the State of  

                                                                                                              

                     Alaska,  Third  Judicial  District,  Kodiak,  Steve  W.  Cole,  

                      Judge.  



                                                                                                        

                     Appearances:               Diane  L.  Wendlandt,  Assistant  Attorney  

                                                                                                       

                      General,   Anchorage,   and   Jahna   Lindemuth,   Attorney  

                                                                                                             

                      General, Juneau, for Petitioner. Emily Jura, Assistant Public  

                                                                                                     

                      Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                            

                      for Respondent.  



                                                                                                                        

                      Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                  

                     A  man  accidentally  killed  his  roommate  with  a  large  knife  while  



                                                                                                                                       

demonstrating martial arts moves.  He pled guilty to criminally negligent homicide and  


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

stipulated to the applicability of a statutory aggravator that allows sentencing above the                                                              



upper range when a crime is "committed against . . . a member of the social unit made       

                                                                                                                          1   On appeal of the  

up of those living together in the same dwelling as the defendant."                                                                                     



sentence, the defendant argued that the aggravator was inappropriate in the context of his  

                                                                                                                                                        



case.  The court of appeals agreed, concluding that the aggravator is limited to cases in  

                                                                                                                                                          



which the defendant's conduct was specifically directed at the victim and had some  

                                                                                                                                                   

source in the relationship between the victim and the defendant.2  

                                                                                                  



                        WegrantedtheStateofAlaska's petitionfor hearing. Becauseweconclude  

                                                                                                                                             



that the aggravator applies to the facts of this case and the sentencing court was not  

                                                                                                                                                       



clearly mistaken in giving it some weight, we reverse the decision of the court of appeals.  

                                                                                                                                               



II.         FACTS AND PROCEEDINGS  

                                        



                        Teila  Tofelogo  lived  in  a  group  home  that  provided  a  sober  living  

                                                                                                                                                  



environment for men in recovery.  According to the later findings by the sentencing  

                                                                                                                                          



court, on an afternoon in November 2016 Tofelogo was "horseplaying" with what he  

                                                                                                                                                         



called a "ninja knife," swinging it around while his roommate, Dennis Fathke, sat on a  

                                                                                                                                                           



bed behind him.  Tofelogo failed to notice when Fathke stood up and came closer, and,  

                                                                                                                                                      



while making a turn with the knife, Tofelogo accidentally stabbed Fathke through the  

                                                                                                                                                        



bicep and into his chest. Tofelogo summoned help and attempted to administer first aid,  

                                                                                                                                                       



but Fathke died soon afterward.  

                                                             



                        Tofelogo pled guilty to criminally negligent homicide and stipulated to the  

                                                                                                                                                        



applicability of AS 12.55.155(c)(18)(A), an aggravating factor that allows sentencing  

                                                                                                                                          



above the presumptive range if "the offense was a felony . . . specified in AS 11.41  

                                                                                                                                                   



['Offenses Against the Person'] and was committed against a spouse, a former spouse,  

                                                                                                                                                



            1           AS   12.55.155(c)(18)(A).  



            2           Tofelogo  v.  State,  408  P.3d   1215,   1216-20  (Alaska  App.  2017).  



                                                                            -2-                                                                          7381  


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

or a member of the social unit made up of those living together in the same dwelling as                                                                                                              



the defendant."  Tofelogo argued, however, that the aggravator should be given "little   



to   no   weight"   because   his   conduct   did   "not   fall   into   the   pattern   of   abusive   and  



threatening conduct typified in a domestic violence case."                                                                               



                               The superior court sentenced Tofelogo to six years imprisonment with four                                                                                         



suspended;   the   composite   sentence,   including  the   suspended   time,   was   above   the  

                                                                                                                                                                                         3      The  

presumptive   term   of   one   to   three   years   for   first-felony   negligent   homicide.     



increased sentence was allowed by the applicability of the aggravator, which raised the  

                                                                                                                                                                                                   

upper limit to ten years.4                                 The court said it was giving the aggravator "some weight" but  

                                                                                                                                                                                                   



"not a tremendous, [not] a lot of weight."  The court noted the prevalence of domestic  

                                                                                                                                           



violence in the community, the state, and "the whole world," observing that it involves  

                                                                                                                                                                                      



not just intra-family violence but "also includes people who are living together such as  

                                                                                                                                                                                                     



here." The court said that it would have given the factor much more weight if the offense  

                                                                                                                                                                                         



had occurred in a more typical domestic setting - "if this offense had been committed  

                                                                                                                                                                                 



by the defendant against his spouse, his girlfriend, his own parents, [or] his children."  

                                                                                                                                                                                                            



But despite the lack of a family relationship, the court declined to give the factor no  

                                                                                                                                                                                                    



weight at all; the court cited a "right to feel safe and secure in our own homes without  

                                                                                                                                            



someone  who is living amongst us hurting us or killing us, and it doesn't have to  

                                                                                                                                                                                                     



necessarily be someone that we're related to."  

                                                                                                              



                3              See  AS 12.55.125(d)(2)(B) (providing for presumptive termof one to three                                                                                       



years "if the offense is a first felony conviction, the defendant violated AS 11.41.130,                                                                                         

and the victim was . . . 16 years of age or older").                                              



                4              See AS 12.55.125(d) (providing that "a defendant convicted of a class B  

                                                                                                                                                                                                      

felony may be sentenced to a definite term of imprisonment of not more than 10 years");  

                                                                                                                                                                                        

AS 12.55.155(a)(1) (providing that if "the low end of the presumptive range is four years  

                                                                                                                                                                                              

or less, the court . . . may increase the active term of imprisonment up to the maximum  

                                                                                                                                                                                  

term of imprisonment for factors in aggravation").  

                                                                                    



                                                                                                  -3-                                                                                         7381
  


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

                            Tofelogo appealed his sentence to the court of appeals, arguing, as relevant                                                          



                                                                                                                                                           5  

here, that aggravator (c)(18)(A) was inappropriate in the context of his case.                                                                                          

                                                                                                                                                              The court  



                                                                                                                                                                              

of appeals agreed, reasoning that the aggravator was intended to apply to crimes of  



                                                                                                                                                                             

domestic violence in which "the identity of the victim and the victim's relationship to the  



                                                                                                                                                           

defendant [bear on] the blameworthiness of the defendant's conduct or the defendant's  

                                                        6    Concluding that Tofelogo's crime was not the kind the  

                                                                                                                                                                            

degree of dangerousness." 



aggravator was intended to address, the court of appeals held that the sentencing court  

                                                                                               

erred in giving the factor any weight at all.7  

                                                                                  



                            The State petitioned for hearing, and we granted review.  

                                                                                                                                                   



III.          STANDARDS OF REVIEW  

                                                        



                            "The existence or non-existence of an aggravating or mitigating factor is  

                                                            

                                                                      8   Determining whether the factor applies "involves a  

a mixed question of law and fact."                                                                                                                                               

                                                           



two-step process:  the court must (1) assess the nature of the defendant's conduct, a  

                                                                                                                                                                                



factual finding, and then (2) make the legal determination of whether that conduct falls  

                                                                                                                                                                          

within the statutory standard."9  

                                                                                                                                                                            

                                                                   "Any factual findings made by the court regarding the  



                                                                                                                                                             

nature of the defendant's conduct are reviewed for clear error, but whether those facts  



              5            See Tofelogo               , 408 P.3d at 1216.                     Tofelogo also argued that the sentencing                       



court erred by relying on his prior criminal history, but the court of appeals did not reach                                                                            

that issue and it is not before us on the State's petition.                                                        See id.        at 1220.   



              6            Id. at 1219.  

                                        



              7            Id . at 1220.  

                                        



              8            Michael v. State, 115 P.3d 517, 519 (Alaska 2005).  

                                                                                                                        



              9            Id.  



                                                                                      -4-                                                                               7381
  


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

                                                                                                                                                                             10  

establish that the conduct" falls within the factor's ambit "is a legal question."                                                                                                 In  



interpreting the scope of an aggravating factor, we apply our independent judgment,                                                                                



interpretingthestatute"according to reason, practicality, and common sense, considering                                                                         

the meaning of the statute's language, its legislative history, and its purpose."                                                                                    11  



                            If a factor is found to apply, the amount of weight to give it is committed  

                                                                                                                                                                  

to  the  sentencing  court's  discretion.12                                                 "[W]hen  the  issue  is  one  of  sentencing  

                                                                                                                                                                



discretion - whether and how much a defendant's sentence should be adjusted on  

                                                                                                                                                                                  



account of an aggravating or mitigating factor - we will employ the 'clearly mistaken'  

                                                                                                                                                                    

standard of review."13   Under this standard "the sentence will be modified only in those  

                                                                                                                                                                             



instances where the reviewing court is convinced that the sentencing court was clearly  

                                                                                                                                                                          

mistaken in imposing a particular sentence."14                                                           In making such a determination, we  

                                                                                                                                                                                  

independently review the record.15  

                                                        



              10            Id.  



              11            Parson v. State, Dep't                         of Revenue, Alaska Hous. Fin. Corp                                        ., 189 P.3d 1032,       



 1036 (Alaska 2008).           



              12            See, e.g., Woods v. State, 667 P.2d 184, 188 (Alaska 1983) ("The weight  



to  be  assigned  to  this  aggravating  factor  is  a  question  which  is  committed  to  the  

                                                                                                                                                                                 

sentencing court's discretion.").  

                                         



              13            Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska App. 1991).  

                                                                                                                                                  



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

                                                                                                                                                                                     

 Wentz, 805 P.2d 962, 964-68 (Alaska 1991) ("[T]he sentence imposed by the trial court  

                                                                                                                                                                              

may be reversed only where the appellate court, after independent review of the record,  

                                                                                                                                                                         

'is convinced that the sentencing court was clearly mistaken in imposing a particular  

                                                                                                                                                                   

sentence.' " (quoting State v. Graybill, 695 P.2d 725, 729 (Alaska 1985))).  

                                                                                                                                                                 



              15            McClain, 519 P.2d at 813.  

                                                                            



                                                                                         -5-                                                                                 7381
  


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

IV.	 	  DISCUSSION  



                                                                                                                                      

            A.	 	       Aggravator (c)(18)(A) By Its Plain Language Applies To Tofelogo's  

                        Crime.  



                                                                                                                                                     

                        Alaska Statute 12.55.155(c) lists factors that "shall be considered by the  



                                                                                                               16  

                                                                                                                                                

sentencing  court  if  proven  in  accordance  with  this  section"                                                and  that  "may  allow  



                                                                                                                                                

imposition of a sentence above the presumptive range set out in AS 12.55.125."  These  



                                                                                                                                                       

so-called  aggravators  include  the  one  central  to  this  appeal:                                                 "the  offense  was  a  



                                                                                                                                       

felony . . . specified in AS 11.41 ['Offenses Against the Person'] and was committed  



                                                                                                                                                

against a spouse, a former spouse, or a member of the social unit made up of those living  



                                                                                                17  

                                                                                                                                                   

together  in  the  same  dwelling  as  the  defendant."                                                Tofelogo  stipulated  to  the  



                                                                                                                                                            

applicability of this factor in his plea agreement, and by its terms it appears to apply.  



                                                                                                                                                       

Tofelogo agreed to plead guilty to criminally negligent homicide, a felony "specified in  



                    18  

                                                                                                                                                      

AS 11.41";             moreover, the crime "was committed against" his roommate, ostensibly "a  



                                                                                                                                                     

member of the social unit made up of those living together in the same dwelling as the  



                     19  

                                                                                                                                                            

defendant."              The superior court gave this stipulated factor "someweight" in sentencing.  



                                                                                 

                        For the reasons that follow, we conclude that the superior court correctly  



                                                                                                                                                     

applied the aggravator to the facts of this case, and that the weight the court gave the  



                                                                                               

aggravator did not result in a sentence that is clearly mistaken.  



            16          AS 12.55.155(f) sets out the procedure by which the State is required to                                                       



present a listed factor for the sentencing court's consideration.                                                 



            17          AS 12.55.155(c)(18)(A).  

                               



            18          AS 11.41.130 defines criminally negligent homicide and classifies it as a  

                                                                                                                              

class B felony.  

               



            19          See AS 12.55.155(c)(18)(A).  

                                       



                                                                          -6-	                                                                   7381
  


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

             B.	 	       The Court Of Appeals Rejected A Literal Reading Of Aggravator                                                      

                         (c)(18)(A).    



                         The court of appeals agreed that "Tofelogo's case falls within the literal                                                      



                                                                 20  

wording of aggravator (c)(18)(A)."                                                                                                                            

                                                                      It nevertheless concluded that "the rationale of this  



                                                                                                                                                         

aggravator does not apply to the facts of Tofelogo's case, and the sentencing judge  



                                                                                                 21  

                                                                                                                                                               

should not have given the aggravator any weight."                                                      The court began its analysis by  



                                                                                                                                                         

stating that "[t]he crimes covered by aggravator (c)(18)(A) are a subset of the larger  



                                                                                                                                                               

category of 'crimes involving domestic violence' - the category of offenses defined by  



                                                   22  

                                                                                                                                                   

AS 18.66.990(3) and (5)."                                The court determined that the aggravator was therefore  



                                                                                                                                                                

"based on the same rationale that prompted the legislature to enact the definition of  



                                                                                                                                                                 

'crime involving domestic violence':  the policy of altering various provisions of law to  



                                                                                                                                                              

facilitate the prosecution and punishment of crimes that occur between people who are  



                                                                                                            23  

                                                                                                

involved with or related to each other in specified ways." 



                                                                                                                                                              

                         The court of appeals then discussed past decisions in which, analyzing the  



                                                                                                                                                         

definition of "crime involving domestic violence," it had "pointed out that the literal  



                                                                                                                                              

wording   of   this   definition   encompasses   more   situations   than   the   legislature  



                                                                                                                                                          

intended - situations where it does not make any sense to treat a crime differently based  

                                                                                                                    24     The  court cited  both  

                                                                                                                                                           

on the relationship between  the defendant and the victim." 



             20          Tofelogo  v.  State,  408  P.3d   1215,   1220  (Alaska  App.  2017).
  



             21          Id.
  



             22
         Id.  at   1217.  



             23          Id.  



             24          Id.  



                                                                               -7-	                                                                       7381
  


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

                                       25                                                  26  

Carpentino   v.   State    and   Bingaman   v.   State,    in   which   it   had  explained   that   the  



legislature's broad definition of "domestic violence," if read "literally, . . . would cover                                                               



many instances where the specified relationship between the defendant and the victim   



is irrelevant to assessing whether the defendant is atypically dangerous or whether the   

                                                                                                 27      The  court  posed  hypotheticals  

defendant's   conduct   is   atypically   blameworthy."                                                                                    



showing the definition's potential overbreadth: for example, an automobile accident that  

                                                                                                                                                               



is categorized as a crime of domestic violence only because the victim, by chance,  

                                                                                                                                                       



happens to fall under the broad definition of "household members" (the victim in the  

                                                                                                                                                                

example is "the child of a former high school sweetheart").28                                                         The court concluded that  

                                                                                                                                                               



such a result would contravene the "social policy underlying" the (c)(18)(A) aggravator:  

                                                                                                                                                                        



"to authorize courts to impose more severe sentences on defendants whose relationship  

                                                                                                                                               



                                                                                                                                                                  29  

to their victim makes the crime more blameworthy," e.g., spouses and former spouses.                                                                                    

                                                                                                                                                   



Referring to the aggravator's additional inclusion of "a member of the social unit made  

                                                                                                                                                            



of those living together in the same dwelling as the defendant," the court cautioned that  

                                                                                                                                                               



if it were "[i]nterpreted literally," it "would apply to a defendant who was convicted of  

                                                                                                                                                                  



felony assault for causing a traffic accident that resulted in injuries to other people" who  

                                                                                                                                                              



included, "by chance, . . . the defendant's former spouse, or . . . another resident of the  

                                                                                                                                                                

defendant's dormitory or barracks."30                                     In such a case, the court reasoned, "the rationale  

                                                                                                                                                     



             25          42  P.3d   1137  (Alaska  App.  2002)  (opinion  on  rehearing).
  



             26           76  P.3d  398  (Alaska  App.  2003).
  



             27
          Tofelogo,  408  P.3d  at   1217-18.  



             28          Id.  at   1218  (quoting  Bingaman,  76  P.3d  at  412).  



             29          Id.  at   1219  (emphasis  added).  



             30          Id.  (quoting  AS   12.55.155(c)(18)(A)).  



                                                                                -8-                                                                         7381
  


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

behind aggravator (c)(18)(A) does not apply - because the identity of the victim and                                                            



the   victim's   relationship   to   the   defendant   have    essentially   no   bearing   on   the  



blameworthiness                  of     the      defendant's             conduct           or     the      defendant's             degree         of  

dangerousness."31  



                       Summarizing, the court of appeals cited its earlier observation that "the  

                                                                                                                                               



'hallmark' of domestic violence is conduct whose purpose is 'to coerce, control, punish,  

                                                                                                                                          

                                                                                                                                    32   Crimes  

intimidate, or exact revenge within the context of an intimate relationship.' " 

                                                                                                                                          



of domestic violence "are all implicitly premised on the assumptions that the defendant's  

                                                                                                                                  



conduct was directed at the victim, and that [their relationship] provided a motivation for  

                                                                                                                                                  



the crime, or . . . made the victim more vulnerable, or . . . was otherwise a significant  

                                                                                                                                   

contributing factor in the crime."33                         Concluding that these "assumptions do not apply to  

                                                                                                                                                   



Tofelogo's case," the court held that "the sentencing judge should not have given the  

                                                                                                                                                 

aggravator any weight."34  

                                              



            C.	 	      The Plain Language Of Aggravator (c)(18)(A) Shows A Reasonable  

                                                                                                                                 

                       Purpose Not Contradicted By Legislative History.  

                                                                                                                     



                       Our disagreement with the court of appeals centers on its conclusion that  

                                                                                                                 



aggravator (c)(18)(A) cannot be interpreted literally consistent with its purpose.  We  

                                                                                                                                                



begin with the statutory language itself; we agree with the court of appeals that read  

                                                                                                                        



            31	 	      Id.  



            32         Id.  (emphasis added) (quoting                       Bates v. State          , 258 P.3d 851, 862 (Alaska         



App. 2011).            



            33         Id. at 1219-20.  

                                                    



            34         Id. at 1220.  

                                  



                                                                        -9-	                                                                 7381
  


----------------------- Page 10-----------------------

                                                                                     35  

literally   it applies to                       Tofelogo's case.                             As for           the statute's                purpose,   the language   



reasonably implies a legislative intent to make more blameworthy crimes committed                                                                                     



against   not   only   spouses   and  former   spouses   but   also   persons   in   their   own   living  



spaces - where they may legitimately have a heightened expectation of safety and                                                                                                     

                   36  especially with regard to danger from members of their own "social unit."37  

security,                                                                                                                                                                                      



Such a purpose - grounded in the language the legislature chose to use - is reasonable  

                                                                                                                                                                      



in  and of itself.                      Finding  a reasonable purpose does not require us to  add  implicit  

                                                                                                                                                                            



requirements such  as those the court of appeals  read  into  the aggravator:                                                                                               that the  

                                                                                                                                                                                      



defendant and the victim also share a special, intimate, spouse-like relationship, and that  

                                                                                                                                                                                     

the crime arose out of that relationship.38                                                   In fact, as the State points out, the court of  

                                                                                                                                                                                         



appeals has in the past affirmed sentencing courts' application of aggravator (c)(18)(A)  

                                                                                                                                                                      



                                                                                                                             39  

to living situations that did not have those characteristics.                                                                      

                                                                                             



               35            See id.   



               36            The State cites several cases recognizing "the added seriousness when an                                                                                   



offense is committed in the victim's home," including Amarok v. State , 789 P.2d 377,  

                                                                                                                                                                                    

380 (Alaska App. 1990) (observing that while sexual assault was a "serious threat to [the                                                                                            

victim's]   personal safety                               and   personal   privacy[,]   .   .   .   [the   accompanying]   burglary  

violated [the] victim's significant and distinctly different right to privacy in her own  

                                                                                                                                                                                   

home, thereby resulting in incrementally greater harm").                                                                       



               37            The sentencing court recognized this as the "right to feel safe and secure  

                                                                                                                                                                               

in our own homes without someone who is living amongst us hurting us or killing us."  

                                                                                                                                                                                               



               38            Tofelogo, 408 P.3d at 1219.  

                                                                              



               39            See, e.g., Pruett v. State, 742 P.2d 257, 259, 262 (Alaska App. 1987),  

                                                                                                                                                                              

(rejecting argument that social unit "factor should be limited to spouses and children"  

                                                                                                                                                                         

and affirming sentencing court's application of it to defendant's abuse of her live-in  

                                                                                                                                                                               

housekeeper),  overruled on other grounds by State v. Wentz, 805 P.2d 962 (Alaska  

                                                                                                                                                                           

 1991); Komakhuk v. State, 719 P.2d 1045, 1046, 1048 (Alaska App. 1986) (holding that  

                                                                                                                                                                                      

                                                                                                                                                                (continued...)  



                                                                                          -10-                                                                                    7381
  


----------------------- Page 11-----------------------

                         We follow a "sliding scale approach to statutory interpretation, in which                                               



'the plainer the statutory language is, the more convincing the evidence of contrary                                                              

                                                                        40   To support the court of appeals' interpretation  

legislative purpose or intent must be.' "                                                                                                



of  (c)(18)(A),  Tofelogo  cites  the  legislative  commentary  that  accompanied  the  

                                                                                                                                                           



aggravator's passage.  The legislature noted that the factor  

                                                                                                   



                         is applicabletocrimes involving domestic violence. Its scope  

                                                                                                                               

                         is restricted to crimes against the person (AS 11.41) directed  

                                                                                                                          

                         against a spouse, a former spouse or a member of the social  

                                        

                         unit comprised of those living together in the same dwelling  

                                                                                                                         

                         as   the   defendant.                      Its   addition   reflects   a   legislative  

                                                                                                                    

                         determination  that  crimes  against  the  person  involving  

                                                                                                                      

                         domestic violence represent one of the more serious criminal  

                                                                                                                          

                                                                            [41]  

                        justice problems in Alaska.                               

                                                              



According to Tofelogo, this language evinces a legislative intent that the aggravator "be  

                                                                                                                                                            



'restricted'  to  violent  crimes  that  are  'directed  against'  a  spouse/former  spouse  or  

                                                                                                                                                             



someone with whom the defendant lives, and that 'involve domestic violence.' " But we  

                                                                                                                                                             



read the commentary as simply paraphrasing the aggravator's language, not narrowing  

                                                                                                                                               



its literal scope by a deliberate choice of slightly different words (e.g., "crimes . . .  

                                                                                                                                                               



directed against" the victim as opposed to crimes "committed against" the victim).  

                                                                                                                                                                    



Tofelogo advancesnoother legislativehistory to support his interpretation of (c)(18)(A),  

                                                                                                                                              



            39           (...continued)  



                                                                                                                                                      

sentencing judge "did not abusehis discretion in finding that AS12.55.155(c)(18) covers  

                                                                                                                                                        

a living situation such as" that of defendant who shot his two adult housemates).  



            40           Adamson v. Municipality of Anchorage , 333 P.3d 5, 11 (Alaska 2014)  

                                                                                                                                                      

(quoting McDonnell v. State Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska  

                                                                                                                                                   

2013)).  



            41           Senate Journal Supp. No. 44 at 25, 1980 Senate Journal 1418; House  

                                                                                                                                                     

Journal Supp. No. 79 at 26, 1980 House Journal 1749.  

                                                                                            



                                                                             -11-                                                                       7381
  


----------------------- Page 12-----------------------

and the court of appeals cited none. The legislative history does not convince us that the                                                                                                   



aggravator should be read other than literally.                                                           



               D.	 	          The Breadth Of Aggravator (c)(18)(A) Allows The Sentencing Court                                                                                       

                              To Consider The Parties' Relationship When Weighing The Factor.                                                                                   



                              The   (c)(18)(A)   aggravator   preexisted   AS   18.66.990(3)'s   definition  of  



"crimesinvolving domestic violence" to include crimes "committedagainst                                                                                               a'household   

member.' "42  However, we agree with the court of appeals that the crimes covered by  



(c)(18)(A) are functionally  a "subset" of those covered by the later definition, at least  



                                                                                                                                                                                            

in the sense that the aggravator applies to fewer  crimes than those covered by the  



                                                                                                                                                                              

definition and any crime included in the aggravator necessarily falls within the definition  



                 43  

                                                                                                                                                                                    

as well.               "Household member" is broadly defined, including such categories as "adults  



                                                                                                                                                                                            

or minors who live together or who have lived together," "adults or minors who are  



                                                                                                                                                                                            

dating or who have dated," and "adults or minors who are related to each other up to the  



                                                                            44  

                                                                                                                                                                                          

fourth  degree  of  consanguinity."                                                 The  court  of  appeals  has  consistently  held  this  



                                                                                                                                                                                

definition to be broader than necessary to effectuate the domestic violence statutes'  



                                               45  

                                                                                                                                                                           

underlying rationale,                              and for that reason it has decided that some situations technically  



                                                                                                                                                                                            

covered  -  such  as  criminally  negligent  conduct  that  impacts  relatives  only  by  



                                                                                                                                                                                              

chance - should not be treated as crimes of domestic violence for purposes such as  



               42             Aggravating   factor   (c)(18)(A)  was   first   codified   in   1980.   See   Ch.   102,  



   39-41, SLA   1980.    The   definition   of   "crimes   involving   domestic   violence"   was  

codified  in   1996.   See  Ch.  64,    33,  SLA   1996.  



               43             See Tofelogo, 408 P.3d at 1217 (citing AS  18.66.990(5)(A) and (B)).  

                                                                                                                                                                               



               44             AS  18.66.990(5)(B), (C), (E).  

                                                                                         



               45             See, e.g., Bingaman  v. State, 76 P.3d 398, 407-12 (Alaska App. 2003);  

                                                                                                                                                                                    

Carpentino v. State, 42 P.3d 1137, 1140-41(Alaska App. 2002).  

                                                                                                                                  



                                                                                             -12-	                                                                                      7381
  


----------------------- Page 13-----------------------

limiting a defendant's ability while on bail to return to a home shared with the victim                                                             46  



                                                                               47  

                                                                                    

or requiring batterer's intervention treatment. 



                       But we disagree that aggravator (c)(18)(A) is overbroad  as  applied to  

                                                                                                                                                   



Tofelogo's case. The statute provides that an aggravator, if proven, "shall be considered  

                                                                                                                                    



by the sentencing court" and "may allow imposition of a sentence above the presumptive  

                                                                                                                                  

range."48        A finding that an aggravator applies does not dictate the aggravator's weight.  

                                                                                                                                                         



Once  the  sentencing  court  has  concluded  that  the  facts  bring  the  case  within  the  

                                                                                                                                                 



aggravator's  literal language, the weight the court gives the aggravator is a matter of  

                                                                                                                                                   

discretion.49   If the court finds, for example, that it was purely a matter of chance that the  

                                                                                                                                                  



defendant and the victim were members of the same social unit "living together in the  

                                                                                                                                                  



same  dwelling,"  it  may  give  the  aggravator  less  weight  than  it  would  have  if  the  

                                                                                                                                                 



defendant had directed the crime against an intimate partner for purposes of intimidation  

                                                                                                                                  



or coercion.  

      



                       Take the example given by the court of appeals, in which a defendant "was  

                                                                                                                                               



convicted of felony assault for causing a traffic accident that resulted in injuries to other  

                                                                                                                                              



people[,]" including, "by chance, . . . the defendant's former spouse, or . . . another  

                                                                                                                                        

resident of the defendant's dormitory or barracks."50   If these facts are proven, the court  

                                                                                                                                              



            46         See Tofelogo           , 408 P.3d at 1218-19 (citing                     Williams v. State            , 151 P.3d 460,       



467-68 (Alaska App. 2006)).            



            47         See id. at 1219 (citing Cooper v. District Court, 133 P.3d 692, 707 (Alaska  

                                                                                                                                          

App. 2006)).  

           



            48         AS 12.55.155(c) (emphasis added).  

                                                                         



            49         See, e.g., Woods v. State, 667 P.2d 184, 188 (Alaska 1983); Lepley v. State,  

                                                                                                                                              

807 P.2d 1095, 1099 n.1 (Alaska App. 1991).  

                                                                     



            50         Tofelogo, 408 P.3d at 1219 (citing AS 11.41.220(a)(1)(B)).  

                                                                                            



                                                                        -13-                                                                  7381
  


----------------------- Page 14-----------------------

should   consider   the   aggravator   because   by   its   plain   language   it   applies;   under  the  



circumstances,   however,   the   court   may   decide   to   give   the   aggravator   little   weight  



because, in the court of appeals' words, "the identity of the victim and the victim's                                                     



relationship to the defendant have essentially no bearing on the blameworthiness of the                                                            

                                                                                                                  51   The tenuousness of  

defendant's conduct or the defendant's degree of dangerousness."                                                                                     



the relationship goes to the weight of the aggravator, but it does not allow a court to  

                                                                                                                                                     



ignore the aggravator's plain language in determining whether it applies.  

                                                                                                                   



            E.	 	       The   Sentencing   Court   Was   Not   Clearly   Mistaken   In Giving  

                                                                                                                                    

                       Aggravator (c)(18)(A) Some Weight.  

                                                                              



                       The sentencing court discussed the basis for aggravator (c)(18)(A), noting  

                                                                                                                                             



the prevalence of domestic violence in society but observing that such crimes are not  

                                                                                                                                                   



limited to family members:  "It also includes people who are living together such as  

                                                                                                                                                    



here."  While emphasizing the "right to feel safe and secure in our own homes without  

                                                                                                                                           



someone who is living amongst us hurting us or killing us," the court differentiated  

                                                                                                                                



Tofelogo's situation from one involving a spouse, girlfriend, or other family member;  

                                                                                                                                         



in such a case, the court said, it "wouldn't have batted an eye to give [Tofelogo] most of"  

                                                                                                                                                   



the allowable maximum. In short, the court explicitly recognized the applicability of the  

                                                                                                                                                   



factor, acknowledged that the circumstances were not those of the typical domestic  

                                                                                                                                        



violence crime (where the factor might apply more forcefully), and because of the  

                                                                                                                                                  



parties' relationship gave the factor only "some weight," "not a tremendous [amount] of  

                                                                                                                                                     



weight."  The court sentenced Tofelogo to six years (with two to serve), three years  

                                                                                                                                               



above the presumptive range for a first-felony, criminally negligent homicide, but well  

                                                                                                                                                 

below the allowable ten-year maximum.52  

                                                                           



            51         Id.  



            52         See  AS   12.55.125(d).  



                                                                        -14-                                                                        7381  


----------------------- Page 15-----------------------

                                                       This sentence was supported by the record. As the sentencing court noted,                                                                                                                                                                                                       



Tofelogo was swinging a very sharp, 12-inch-long knife in close proximity to Fathke,  



his roommate, in an enclosed, shared living space. Tofelogo specifically acknowledged                                                                                                                                                                                                                



the risk, whether jokingly or not; he reportedly told Fathke, "I'm a killer, dude. You got                                                                                                                                                                                                                                                         



to watch out."                                             There is no indication that Fathke desired this interaction:                                                                                                                                                                                   he was lying                     



on his bed and stood up just before he was stabbed. Regardless of Tofelogo's intent, his                                                                                                                                                                                                                                                            



willingness to engage in this dangerous and intimidating behavior may certainly be read                                                                                                                                                                                                                                                       



as implicating the aggravating factor's purpose.                                                                                                               



                                                       Given the court's reasoned consideration of the aggravator's purpose, its     



applicability to the facts of this case, and the resulting sentence well within permissible                                                                                                                                                                                                                      



bounds, we cannot say that the sentence was clearly mistaken.                                                                                                                                                        



                           F.	 	                      A   Remand   Is   Necessary   For   Consideration   Of   Tofelogo's   Other  

                                                       Sentencing Issue On Appeal.                                                               



                                                       Tofelogoappealednotonlythesentencing court's application of aggravator                                                                                                                                                                                        



(c)(18)(A), but two other issues as well:                                                                                                                                    (1) the sentencing court's rejection of the                                                                                                                         

proposed "least serious" mitigator,                                                                                                           53                                                                                                                                                           54                                      

                                                                                                                                                     which the court of appeals affirmed,                                                                                                                         and (2) the  



                                                                                                                                                                                                                                                                                                                            

 sentencing court's decision to give "unjustified weight to Tofelogo's prior criminal  



                                                                                                                                                                    

history," which the court of appeals did not reach "[g]iven the fact that Tofelogo must  



                                                                                                                                                                                                                                                                                                                                                 

be  re-sentenced,"  and  "Tofelogo's  attorney  [could]  address  this  matter  at  the  re- 

                                                   55          Our disposition of the petition would reinstate and affirm the sentence  

 sentencing."                                                                                                                                                                                                                                                                                                               



imposed by the superior court, except that the "prior criminal history" issue remains  

                                                                                                                                                                                                                                                                                                                              



                           53                         AS  12.55.155(d)(9)  ("the  conduct  constituting  the  offense  was  among  the  



least  serious  conduct  included  in  the  definition  of  the  offense").  



                           54                          Tofelogo,  408  P.3d  at   1216.  



                           55                         Id.  at   1220.  



                                                                                                                                                                        -15-	                                                                                                                                                               7381
  


----------------------- Page 16-----------------------

undecided and may affect the sentence.   We must therefore remand to the court of  

                                                                                                                          



appeals for its further consideration of that issue.  Depending on its resolution of that  

                                                                                                                       



issue, the court of appeals may then either remand to the superior court for re-sentencing  

                                                                                                          



consistent with this opinion or reinstate and affirm the sentence.  

                                                                                              



V.        CONCLUSION  



                   We REVERSE the decision of the court of appeals and REMAND for  

                                                                                                                        



consideration of the "prior criminal history" issue.  

                                                                 



                                                           -16-                                                      7381
 
 

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