JOSHUA BRADSHAW v. STATE OF ALASKA (2011)

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 as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Joshua J. Bradshaw was convicted of attempted murder in the first degree ¹ and assault in the third degree.²  Superior Court Judge Robert B. Downes sentenced Bradshaw to seventy years with twenty years suspended for the attempted murder conviction and a consecutive three years for the assault conviction.   Bradshaw appeals, arguing that his sentence is excessive.   We affirm.

Factual and procedural background

James Roseberry (age twenty), Jeffrey Paul (age nineteen), Paul Payne (age nineteen), and Jamal Trueheart (age seventeen, a juvenile), contacted the defendant, Bradshaw, to buy an ounce of marijuana for $350.   Paul's grand jury testimony suggests that they intended to run off with the marijuana, not purchase it.   Trueheart made contact with Bradshaw and directed Paul where to drive.

The group parked next to a dumpster and waited.   Bradshaw gave them the marijuana.   Instead of paying Bradshaw, Paul started to move the car forward.   Bradshaw grabbed the inside of the door and started running alongside.   When Bradshaw let go, Trueheart looked back and thought Bradshaw had a gun.   He yelled “Go,” and Paul accelerated away.   Bradshaw started shooting at the car as it drove away.   One of the bullets hit Payne in the back of the head, inflicting serious and permanent injuries.

Detective Christopher Nolan interviewed Bradshaw.   Bradshaw stated that he had not intended to shoot anyone when he initially went outside to sell the marijuana.   But when the car started to drive away, he became angry and fired four or five rounds at the car.   Bradshaw stated that he was sorry about injuring Payne, but he said if he had hit Trueheart, it would not have bothered him.

A grand jury indicted Bradshaw on numerous felony charges.   Bradshaw pleaded guilty to attempted murder in the first degree and to one consolidated count of assault in the third degree, which encompassed the assaults on the other three occupants of the car.   Bradshaw and the State agreed that Bradshaw would serve a three-year sentence on the consolidated assault count, which would run consecutively to the sentence on the attempted murder count.

Bradshaw was twenty-nine years old at the time of sentencing.   He had two prior felony convictions.   The presentence report described his prior criminal record as follows:  “[He] has a history of assaultive behavior.   He has an extensive criminal history that includes eleven adult convictions, numerous contacts with the juvenile authorities, and numerous probation and parole violations.”   The report pointed out that Bradshaw had been given many opportunities to abandon his criminal lifestyle, but had refused to do so.   The report concluded that Bradshaw's history showed that he was a danger to others while he was in custody and that he was a danger to the community.

The presentence report noted the factors that made Bradshaw's offenses particularly aggravated.   Bradshaw had arranged to sell marijuana to a juvenile.   Because he was a convicted felon, Bradshaw could not possess a handgun.   Yet he illegally purchased a handgun and carried it to the drug transaction.   He then shot at several people when the drug transaction went wrong.   When Bradshaw fired at the fleeing car, one of the bullets struck Payne in the back of the head, causing serious and permanent physical damage.   According to the presentence report, as a result of his injuries, Payne “is totally dependent on others for his day-to-day survival.”   The report concluded that, given Bradshaw's repeated dismal performance following his former convictions, the court should impose seventy years of imprisonment for attempted murder and a consecutive five years on the consolidated assault count.

In sentencing Bradshaw, Judge Downes recognized that Bradshaw had not planned in advance to shoot anyone.   But he pointed out the obvious extreme danger involved in bringing a gun to a drug transaction.   He found that when the car sped off with the marijuana, Bradshaw grossly overreacted.   And as a result of Bradshaw's actions, Payne received serious long-term injuries that put him in “grave jeopardy for the rest of his life.”   Judge Downes concluded that the sentence he imposed must be substantial enough to deter others from engaging in similar conduct.

Judge Downes acknowledged that Bradshaw did not have a prior history of serious felony assaults.   But he observed that Bradshaw had been committing crimes on a regular basis for the previous ten to twelve years of his life.   He concluded that Bradshaw's prospects for rehabilitation were “somewhat dim.”

Legal analysis

On appeal, Bradshaw argues that Judge Downes erred in rejecting his proposed mitigating factor that he acted “with serious provocation from the victim.” ³  Because Bradshaw is arguing that the mitigator applies to attempted murder, which is not covered by presumptive sentencing, the mitigator would only apply by analogy.⁴

Bradshaw argues that he was seriously provoked by the theft of the marijuana.   But Judge Downes fully considered this argument in sentencing Bradshaw.   He recognized that Bradshaw went to the transaction not intending to shoot anyone, but he described Bradshaw's action of shooting at the people in the vehicle as it sped off with the marijuana as “an over-response of grievous magnitude.”   He also found that Bradshaw must have foreseen that bringing a gun to a drug transaction could easily lead to serious consequences.   We conclude that Judge Downes fully considered the issue of provocation and that his findings are supported by the record.

Bradshaw also argues that Judge Downes placed too much emphasis on deterring others from combining guns and the sale of illegal drugs.   He contends that his sentence is unlikely to have this deterrent effect because he acted out of anger.   He asserts that the fact that this was a drug transaction was incidental to the shooting (i.e., he argues that if the stolen property had been, for example, a stereo, the outcome may have been the same).   But general deterrence is a legitimate sentencing goal.⁵  Our review of the record indicates that Judge Downes did not place undue emphasis on this sentencing factor.   He gave primary weight to the circumstances of Bradshaw's offense, his prior record, and his prospects for rehabilitation.

Bradshaw separately contends that his sentence is excessive.   But, as we have discussed, Judge Downes gave substantial reasons for the sentence that he imposed, and these reasons are supported by the record.   We conclude that the sentence is not clearly mistaken.

Conclusion

The judgment of the superior court is AFFIRMED.

FOOTNOTES

FN1. AS 11.41.100(a)(1)..  FN1. AS 11.41.100(a)(1).

FN2. AS 11.41.220(a)(1)..  FN2. AS 11.41.220(a)(1).

FN3. See AS 12.55.155(d)(6)..  FN3. See AS 12.55.155(d)(6).

FN4. See Gregory v. State, 689 P.2d 508, 509 (Alaska App.1984)..  FN4. See Gregory v. State, 689 P.2d 508, 509 (Alaska App.1984).

FN5. AS 12.55.005(5)..  FN5. AS 12.55.005(5).

COATS, Chief Judge.