dissent">BOLGER, Judge,

dissenting.

Jimmy Korkow committed a singularly callous murder. He stabbed his wife sixty-two times while their daughters slept nearby, then left her body on the living room floor with knives sticking out of her chest and her ear. After explaining the relevant sentencing considerations, Judge Aarseth reasonably concluded that Korkow should remain in prison until he reaches an advanced age.

Judge Aarseth made detailed findings explaining his decision to restrict Korkow's parole eligibility.1 The question we must determine is whether his decision was clearly mistaken.2 We apply this test "not by imposition of an artificial ceiling[,] which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature.3

Judge Aarseth found that Korkow "focused on grievously mutilating [his wife's] body," exhibiting a "very sick state of mind." The judge also found that Korkow's children were present and that one child heard their father kill their mother-a "very significant" factor in his sentencing decision.

The judge explained that his primary sentencing goal was to protect Korkow's children so that they could live their lives and eventually raise their own families without fear. The judge also intended to reaffirm social norms by sending a message that murdering one's spouse is not an acceptable way of dealing with marital stress.

*936The judge found that there was a "real concern" that Korkow would violently attack his family in the future, given the unprovoked nature of this "atrocious crime." The judge explained that this brutal incident indicated that Korkow had "a complete lack of concern" for anyone other than himself and that he could not be trusted to live in a free society.

Judge Aarseth estimated that Korkow would normally be eligible for parole when he was about seventy years old and that his children would then be forty-four to forty-nine years of age. The judge explained why this possibility raised a serious concern for the protection of Korkow's children and society at large:

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

The judge thus specifically addressed why the normal parole eligibility term would be insufficient to protect the public and ensure Korkow's reformation. The judge could reasonably conclude that Korkow would be more feeble, and consequently less dangerous, if he was released at age eighty-three compared to his normal parole eligibility at age sixty-six.

We recently addressed a similar sentencing issue when we upheld the constitutionality of a statute that imposed a sentence of ninety-nine years' imprisonment without discretionary parole for the murder of a police officer. 4 We recognized that the legislature could reasonably conclude that a lifetime parole restriction was consistent with the constitutional goals of punishment-to protect the public from such a brazen offender, to express community condemnation for an attack on an officer engaged in his official duties, and to deter the defendant and others from committing similar

In this case, Judge Aarseth's more limited decision to restrict Korkow's parole eligibility for fifty years was likewise supported by several of the constitutional goals of punishment. The judge explained why a parole restriction was necessary to protect Kor-kow's children and the public at large. The judge also relied on the cruel and unprovoked nature of this crime and Korkow's lack of remorse to explain why rehabilitation was not a practical consideration. Moreover, the parole restriction directly promoted the judge's primary sentencing consideration-the rights of Korkow's children as the surviving victims of this crime.

In my opinion, the judge's findings are consistent with the discretion granted by statute, the limits imposed by the Alaska Constitution, and the facts of this heinous offense. I would affirm.

. AS 12.55.115 provides, "The court may, as part of a sentence of imprisonment, further restrict the eligibility of a prisoner for discretionary parole for a term greater than that required under [the parole statutes]."

. Stern v. State, 827 P.2d 442, 450 (Alaska App.1992) (reviewing a parole restriction to determine if it was clearly mistaken).

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

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

Citation profile

Relationships

How this case has been treated — in progress