State v. Kasic

228 Ariz. 228

265 P.3d 410

620 Ariz. Adv. Rep. 5

The STATE of Arizona, Appellee,

v.Mark Noriki KASIC, Appellant.

No. 2 CA–CR 2010–0197.

Court of Appeals of Arizona, Division 2, Department B.

Oct. 27, 2011.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani and Alan L. Amann, Tucson, Attorneys for Appellee.

John William Lovell, Tucson, Attorney for Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 Mark Kasic, Jr. was convicted after a jury trial of thirty-two felonies arising from six arsons and one attempted arson committed over a one-year period beginning when he was seventeen years of age. Because a number of the offenses were committed when Kasic was a juvenile, he contends his combination of concurrent and consecutive prison sentences totaling 139.75 years violates the Eighth Amendment's prohibition against cruel and unusual punishment under Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).¹ He also challenges two of his arson convictions, arguing there was insufficient evidence to support them. We conclude Kasic's sentences do not violate the Eighth Amendment, but modify his convictions for arson of property and remand for resentencing on those counts.

Factual Background and Procedural History

¶ 2 Between August 2007 and August 2008, Kasic committed a series of arsons on the east side of Tucson. Most of the fires involved occupied residences, but two involved palm trees. All of the house fires were set in the same manner. Kasic would enter a carport or storage shed between midnight and daybreak, gather flammable materials, and set them on fire, often using an accelerant such as gasoline. Kasic set all of the house fires while the victims were inside asleep. The following is a brief description of each of the offenses.

¶ 3 Around 4:30 a.m. on August 29, 2007, A.F. was awakened by “crackling and popping sounds” and saw a “bright yellow light” coming through a window of the house she shared with her brother, J.O., on East Julia. Kasic had doused lighter fluid on boxes in the carport and set them on fire. Although A.F. and J.O. escaped unharmed, “almost everything [was] destroyed.” Only the adobe walls and concrete flooring were salvageable; the rest of the home had to be demolished. The victims' two cars also were destroyed by the fire.

¶ 4 That same night, Kasic entered the carport of a residence owned by C.D. on East Beverly and set fire to some boxes. C.D.'s neighbor, who saw the fire as he was getting ready for work around 4:30 a.m., extinguished the fire before it spread.

¶ 5 Kasic set a third fire that night at a home on Shiloh where he entered the carport and set fire to some dressers. The home was occupied by J.B., his girlfriend, D.B., and their children, including a newborn baby. By the time the fire department arrived, J.B. had extinguished the fire but sustained severe burns to his upper body in the process. Two vehicles also were destroyed in the fire.

¶ 6 Shortly after 1:30 a.m. on August 31, 2007, P.K. awoke when he smelled smoke in his home on East Green Acres. Upon investigating, he discovered a fire in the carport. Kasic had set fire to the interior passenger compartment of a vehicle sitting in the carport, and the fire spread to the house, including the laundry room, kitchen, and back patio. P.K. and his wife, L.K., narrowly escaped the fire, “stumbl[ing] over each other several times” because the house was dark with smoke. In addition to extensive damage to the home and the loss of two vehicles, the fire destroyed boxes of items L.K. had inherited from her mother, pictures of L.K.'s deceased twin brother, and many other items the couple deemed irreplaceable.

¶ 7 On the morning of January 25, 2008, P.T. noticed that materials from her recycle bin and boxes that were in her carport had been set on fire. During her testimony at trial, P.T. also recalled that one July,² a large palm tree across the street from her home on East Old Spanish Trail also had been set on fire.

¶ 8 On March 29, 2008, Kasic set fire to some empty cardboard boxes on shelves in the carport at a residence on East 5th Street, where M.K. lived with her husband and her two stepsons, ages twelve and thirteen. M.K. discovered the fire sometime between 2:00 and 3:00 a.m. when she heard a noise in her carport and then heard her smoke detector go off. The fire caused extensive damage to the home, the storage area, and the victims' personal property.

¶ 9 At around 2:00 a.m. on August 16, 2008, ten-year-old M.H. woke to the smell of smoke at her home on East Stefan. When she saw fire through her window, M.H. woke her two brothers and father, and they all fled the house into the street. The fire caused extensive damage to an outside storage area, a vehicle, a Quonset hut, and a workshop area where the fire likely originated.

¶ 10 The last arson occurred on August 17, 2008. At around 4:00 a.m., S.W. woke her father, C.W., because a neighbor had thrown a rock at her bedroom window. The home was on fire. As they were fleeing from the home moments later, the “whole ceiling in the living room area started collapsing from the fire,” and the entire house was engulfed in flames. C.W. required treatment for smoke inhalation, and S.W. was taken to the hospital by ambulance because of second-degree burns to her feet. Kasic had started this fire in the carport area.

¶ 11 Kasic, who turned eighteen on December 10, 2007, was a juvenile when he committed four of the arsons. On December 15, 2008, he was charged as an adult in a forty-count indictment with seven counts of arson of an occupied structure; one count of attempted arson of an occupied structure; two counts of aggravated assault; seventeen counts of endangerment; eight counts of criminal damage causing damage of $10,000 or more; one count of criminal damage causing damage between $200 and $2,500; and two counts of arson of property having a value of more than $100.³ The arson of property counts were for fires Kasic had set to two palm trees on two separate occasions.

¶ 12 Thirty-eight counts ultimately were submitted to the jury, which reached unanimous verdicts on all but five counts.⁴ The jury found Kasic guilty of six counts of arson of an occupied structure, fifteen counts of endangerment, one count of attempted arson of an occupied structure, and one count of aggravated assault and found each of these offenses to be of a dangerous nature. The jury also found Kasic guilty of seven counts of criminal damage and two counts of arson of property with a value of $100 or more. He was acquitted of one count of criminal damage. The trial court sentenced him to a combination of enhanced concurrent and consecutive prison terms totaling 139.75 years. This appeal followed.

The Eighth Amendment and Graham v. Florida

¶ 13 The Eighth Amendment to the United States Constitution prohibits the imposition of “cruel and unusual punishments.” U.S. Const. amend. VIII.⁵ The prohibition includes not only punishment that historically has been considered barbaric, but also sentences that are grossly disproportionate to the crime committed. Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Thus, “[t]he concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the ‘precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” Graham, –––U.S. at ––––, 130 S.Ct. at 2021, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (alteration in Graham).

¶ 14 Relying on Graham, Kasic contends his sentences constitute cruel and unusual punishment and are therefore unconstitutional under the Eighth Amendment. He maintains “ Graham represents a significant shift in the Supreme Court jurisprudence because it focuses on juveniles' unique amenability to rehabilitation rather than on the nature of the punishment as a reason to categorically bar life sentences for youth convicted of non-homicide crimes.”

¶ 15 Because Kasic did not raise this argument in the trial court, we review only for fundamental error. State v. Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d 263, 266 (App.2007). “To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice.” State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). “We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion.” Joyner, 215 Ariz. 134, ¶ 5, 158 P.3d at 266. But the imposition of an illegal sentence constitutes fundamental error. See State v. Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App.2002). Moreover, we review constitutional issues de novo. State v. Dann, 220 Ariz. 351, ¶ 27, 207 P.3d 604, 613 (2009).

¶ 16 In Graham, the Court noted that its prior cases addressing the proportionality of sentences fall within two general classifications. ––– U.S. at ––––, 130 S.Ct. at 2021. The first involves challenges to the length of term-of-years sentences and considers all of the circumstances in a particular case. Id The second addresses the proportionality standard by imposing categorical restrictions on the death penalty either because the death penalty is disproportionate given the nature of the offense or the characteristics of the offender. Id; see also Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (categorically excluding defendants under eighteen years of age from death penalty); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (applying categorical exclusion to mentally impaired); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (prohibiting capital punishment for nonhomicide offenses).

¶ 17 For the first time in Graham, the Court addressed the issue of proportionality in the context of a categorical challenge to a term-of-years sentence...