Sullivan v. State, 040120 AKCA, A-12781

Docket Nº:A-12781, A-12794
Opinion Judge:MANNHEIMER, JUDGE
Party Name:AARON MICHAEL SULLIVAN, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Jason A. Weiner, Gazewood & Weiner, Fairbanks, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge.
Case Date:April 01, 2020
Court:Court of Appeals of Alaska
 
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AARON MICHAEL SULLIVAN, Appellant,

v.

STATE OF ALASKA, Appellee.

Nos. A-12781, A-12794

Court of Appeals of Alaska

April 1, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Trial Court Nos. 3AN-14-09136 CR &3PA-11-02588 CR

Jason A. Weiner, Gazewood & Weiner, Fairbanks, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]

MEMORANDUM OPINION

MANNHEIMER, JUDGE

Aaron Michael Sullivan fled at high speed from a police officer who was attempting to stop Sullivan's vehicle. A short time later, Sullivan came barreling out of an alley and crashed into the officer's patrol car. The officer got out of his patrol car, unholstered his sidearm, and approached Sullivan. As he approached, the officer ordered Sullivan to put his hands up and in plain sight. In response, Sullivan aimed a revolver at the officer and fired three shots at him. Based on this conduct, Sullivan was convicted of a number of offenses, including attempted murder and third-degree assault.

Soon after Sullivan was found guilty, Sullivan's attorney filed a motion for a new trial, based primarily on an e-mail that the attorney had received from one of the jurors at Sullivan's trial. The contents of this e-mail suggested that the juror might have misunderstood one of the jury instructions on the "intent" element of attempted murder. Sullivan's attorney also argued, in the alternative, that the jury's verdict on the attempted murder charge was against the weight of the evidence.

The trial judge denied this motion, and Sullivan challenges the judge's decision on appeal. For the reasons explained in this opinion, we affirm the judge's denial of Sullivan's motion for a new trial.

Sullivan also argues that he should not have received separate convictions for attempted murder and third-degree assault-that the trial court should have merged the jury's verdicts on these two charges. The State concedes error, and (for the reasons explained here) we conclude that the State's concession is well-founded. Sullivan should have received only one merged conviction for attempted murder.

Finally, Sullivan argues that his composite sentence is excessive. For the reasons explained here, we conclude that Sullivan's sentence is not clearly mistaken.

Factual background

While on patrol early one morning in September, Anchorage Police Officer Patrick Michael O'Connor observed a blue Saturn speed through an intersection. O'Connor attempted to follow this vehicle, but the driver successfully evaded him. O'Connor later ran a check on the Saturn's license plate and discovered that the owner of the vehicle, Sullivan, was on parole and probation, and that he had an outstanding felony warrant for his arrest.

Two weeks later, O'Connor observed Sullivan's vehicle in the same residential neighborhood. O' Connor pursued the vehicle a short distance before Sullivan pulled into a driveway. O'Connor activated his overhead lights but, as O'Connor was preparing to get out of his patrol car to make the traffic stop, Sullivan turned his headlights off and sped away. A high-speed chase ensued through the neighborhood, but O'Connor soon abandoned the chase because of the danger to public safety.

A short while later, Sullivan came speeding out of an alley and crashed his vehicle into O' Connor's patrol car. Sullivan then attempted to drive away, but O' Connor accelerated his patrol car and pinned Sullivan's vehicle against a sign post, with the front of the patrol car up against the passenger-side door of Sullivan's vehicle.

O'Connor stepped out of his patrol car; he drew his weapon and ordered Sullivan to show his hands. When Sullivan did not comply with...

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