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Haruch v. State6/21/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4232 - June 21, 2000]
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge.
Haruch pleaded no contest to one count of first-degree assault, a class A felony. Superior Court Judge Charles R. Pengilly imposed a 20-year term with 10 years suspended. Haruch appeals his sentence contending that it is excessive. Because we conclude that Haruch's sentence is not clearly mistaken, we affirm.
Haruch met S.C. in the summer of 1997. In October, S.C. learned that she was pregnant with their child. By March 1, 1998, Haruch had been living intermittently with S.C. and C.C., S.C.'s two-year-old daughter from another relationship. At about 8:00 p.m. on the evening of March 1, Haruch and S.C. were squabbling and Haruch testified that he "just snapped." S.C. was seven months pregnant at the time.
Haruch started his assault by beating S.C. on the head with an ammunition box filled with tools and a large flashlight. Then he dragged her by the arm up some stairs and into the kitchen where he tied her hands and feet together. He duct taped her eyes and mouth but the tape did not hold well because S.C. was bleeding heavily. Haruch collected the guns in the house and loaded at least one. During this time, Haruch made many comments that S.C. understood to be threats on the life of her and her daughter. Although she managed to free her ankles at one point and flee, Haruch caught her, "pistol whipped" her, dragged her back inside the residence, and tied her up again. About 8:00 a.m. the next morning, Haruch called his mother and some attorneys, and untied S.C. Haruch also called the Alaska State Troopers, reported that he had assaulted S.C., and said he was ready to be arrested.
S.C. was transported to the hospital. Because of the severity of her lacerations, a plastic surgeon , Dr. William W. Wennan, was called in to close S.C.'s wounds. Dr. Wennan used over 100 stitches to close over 20 linear inches of lacerations that were on S.C.'s scalp and face. Considering S.C.'s injuries and lacerations, Dr. Wennen "was surprised that she lived[.]"
The grand jury indicted Haruch on one count of kidnapping and two counts of first-degree assault. As a result of the plea bargain, Haruch pleaded no contest to the single count of first-degree assault that charged that he "recklessly cause serious physical injury to S.C., by means of a dangerous instrument, a metal container." The State dismissed the remaining counts.
The State alleged four aggravating factors. Haruch conceded aggravating factor AS 12.55.155(c)(18)(A) (Haruch's assault was committed against S.C., a member of the family unit residing with Haruch). Haruch opposed the State's other aggravating factors: AS 12.55.155(c)(2) (Haruch's conduct during the commission of the offense manifested deliberate cruelty to S.C.); AS 12.55.155(c)(5) (Haruch knew or should have known that that S.C. was a particularly vulnerable victim); and AS 12.55.155(c)(10) (Haruch's conduct constituting the offense was among the worst within the definition of the offense). Judge Pengilly found that the State proved those aggravating factors. Haruch alleged statutory mitigating factor AS 12.55.155(d)(9) (Haruch's conduct was among the least serious within the definition of the offense) and the non-statutory mitigating factor of post-offense conduct. Judge Pengilly did not find either mitigating factor. Haruch has not argued that Judge Pengilly's findings on these factors are erroneous.
When Haruch appeared before Judge Pengilly for sentencing, he was 37 and had no criminal history other than two out-of-state cases that invo
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