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Nikstaitis v. State3/24/1999
4019 NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
[No. 4019 - March 24, 1999]
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge.
The defendant in this appeal was sentenced to serve 25 years for the crime of second-degree murder. We are asked to decide whether this sentence is excessive.
On July 26, 1996, in the middle of the night, Daniel L. Nikstaitis and three companions broke into the Wasilla residence of David Hamilton. Their intention was to rob Hamilton by stealing the marijuana crop that Hamilton was growing.
Nikstaitis carried a handgun; he displayed this weapon to Hamilton and advised him that he would not be hurt if he cooperated. Hamilton, however, grabbed a weapon of his own and pointed the gun at Nikstaitis's chest. When Nikstaitis pushed the weapon to one side, it went off, wounding Nikstaitis in the arm. Nikstaitis then fired his weapon at Hamilton; the bullet struck Hamilton in the neck. Nikstaitis and his companions fled the residence. Hamilton died a short time later.
Based on this conduct, Nikstaitis was indicted for first-degree burglary , first-degree robbery , and second-degree murder (felony murder) . Nikstaitis ultimately pleaded no contest to the murder charge, and the State dismissed the other two charges at sentencing. Superior Court Judge Beverly W. Cutler sentenced Nikstaitis to 50 years' imprisonment with 25 years suspended (25 years to serve).
In Page v. State , this court established a benchmark sentencing range of 20 to 30 years to serve for first felony offenders convicted of second-degree murder. Nikstaitis's sentence falls in the middle of this benchmark range. He nevertheless contends that his sentence is excessive.
Nikstaitis argues that Judge Cutler imposed a 25-year sentence only because she adopted a skewed view of the facts. He claims that, had Judge Cutler viewed the facts correctly, she would have imposed a lesser sentence. To understand Nikstaitis's argument, one must understand how this case was litigated at sentencing.
The prosecutor took the view that the circumstances of Nikstaitis's offense were aggravated: Nikstaitis and his companions broke into a residence in the middle of the night, intending to rob the occupant. Nikstaitis carried a firearm, an indication that the robbers expected Hamilton to be home.
On the other hand, the prosecutor readily conceded that these aggravated circumstances were significantly offset by Nikstaitis's youth, his lack of prior criminal record, and (most importantly) his conduct following the offense. The prosecutor explained that Nikstaitis had contacted the authorities and had confessed his involvement in the crime; moreover, Nikstaitis provided the authorities with a full and honest account of the robbery/homicide, an account that apparently aided the authorities in prosecuting his accomplices.
For these reasons, the prosecutor conceded that Nikstaitis had proved mitigating factor (d)(12) , and the prosecutor urged the court to give this factor some weight in sentencing Nikstaitis. In fact, the prosecutor told the court, "Everything that happened after the [crime] seems so at odds with ... this offense [and Nikstaitis's conduct during] the weeks leading up to it. It's ... hard to recon
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