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Kitchok v. State5/12/2004
en he concluded that Kitchok was a worst offender for purposes of gauging his sentence for fourth-degree assault. But more importantly, we have repeatedly stated that when a defendant receives a composite sentence for two or more criminal convictions, our task is to assess whether the combined sentence is clearly mistaken given the whole of the defendant's conduct and history. [FN6] In doing so, we do not require that a specific sentence for a particular offense be individually justifiable as if that one crime were considered in isolation. Here, Kitchok was sentenced for both a class A felony (attempted first-degree sexual assault) and a class A misdemeanor (fourth-degree assault). His composite sentence for these two crimes was less than the maximum sentence that he might have received for the class A felony alone. Thus, the issue of whether Kitchok was a worst offender for purposes of his fourth-degree assault sentence is moot.
This brings us to the issue of Kitchok's composite sentence. As we have already noted, Kitchok faced a presumptive term of 15 years' imprisonment for the attempted sexual assault. The State proved aggravator (c)(10); Kitchok proved no mitigators. Thus, the 15-year presumptive term was effectively the minimum sentence that Kitchok might receive for the attempted sexual assault, and Judge Hopwood was authorized to consider sentences of up to 20 years' imprisonment.
Based on aggravator (c)(10), Judge Hopwood increased Kitchok's sexual assault sentence by adding 3 suspended years of imprisonment. He then imposed a consecutive 1 year to serve for the fourth-degree assault. Thus, all told, Kitchok received 16 years to serve--one more than the presumptive 15 years that he faced for the attempted sexual assault alone.
Given the facts of this case--the duration of Kitchok's assault on L.B., and Judge Hopwood's finding that Kitchok was factually guilty of kidnapping for repeatedly restraining L.B. when she attempted to escape from Kitchok's house-- we conclude that Judge Hopwood was not clearly mistaken when he decided to impose a composite sentence of 16 years--a sentence that exceeded the applicable 15-year presumptive term by 1 year.
Conclusion The judgement of the superior court is AFFIRMED.
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