Three-judge panel requested in assault case

PALMER -- Calling it a "good break," the defense attorney for a Wasilla teen convicted of assaulting his best friend will have the opportunity to argue for a shorter sentence than the law suggests.

Eugene Cyrus, attorney for 18-year-old Ricky Shivers, appeared before Superior Court Judge Beverly Cutler Monday and successfully pled his case to request a three-judge panel to decide if Shivers can receive less than the presumptive five-year sentence for his December jury conviction of first-degree assault. Shivers was also convicted by jury of second-degree assault, and pled guilty to a third charge of second-degree assault at the start of the trial, all in connection with the April 2002 beating of his friend that left the other young man with possible permanent brain damage.

During the scheduled sentencing hearing Monday, Cyrus argued that Shivers was no different than other defendants before the court in which a teen-ager was provoked and responded in the heat of passion -- defendants who had been charged with lesser charges and received lesser sentences. Cutler appeared to agree, at least to the extent that she is allowing Cyrus the opportunity to file a request for a three-judge panel to look at Shivers' case and give it some comparison to similar cases for sentencing purposes.

The assault occurred after Shivers discovered his friend, who was also his roommate, had had sex with Shivers' girlfriend. According to testimony from the trial, early on the night of April 28, Shivers and his girlfriend had an argument after which the victim left in a car with the girlfriend. While they were gone, Shivers, suspicious that the two were engaging in sex, continued drinking and working himself into a frenzy, he testified.

When they returned, he was waiting with a knife and confronted them, using the knife to scare his friend into admitting the transgression. With his suspicions confirmed, Shivers later admitted, he attacked his friend.

"Something just went over me," he testified at the trial. The knife was thrown out, Shivers said, because he realized using it was serious. Instead, he began punching the friend, who crawled over the console and out the passenger side of the car.

With his girlfriend yelling for him to stop, Shivers went around the car and began punching the friend again, he testified. At that point she ran into the house and called 911. Shivers testified he kicked his friend, went to the door of the house to yell at his girlfriend, then, when she called him "crazy" and "psycho," returned to the friend even more angry and continued hitting him. He also testified he only meant to make his friend feel his pain and did not intend to go as far as he did.

Upon realizing what he had done, he put his friend into the car and drove him to Valley Hospital Medical Center in Wasilla, where Shivers was apprehended by police and the victim was taken by ambulance to Valley Hospital in Palmer. The friend was treated in the emergency room, then moved to intensive care for treatment of severe facial trauma, multiple skull fractures and superficial stab wounds, according to initial police reports.

Cyrus, at the trial, characterized his client as remorseful. He said while Shivers was responsible for the victim's injuries, he never intended them. The case, he said, was about friendship and betrayal, with alcohol as a factor. He took that stance again in Monday's hearing.

The prosecution, however, made its case that Shivers' actions were no different than many other cases seen before the court that had instead ended in death. During trial, Assistant District Attorney Rachel Gernat argued that Shivers intended to cause physical injury to the victim and had changed his story several times from what he originally told the arresting officer. She also said he had manifested extreme indifference to the value of human life -- the basis for first-degree assault.

Going over the mitigating factors and aggravators presented by the defense and the prosecution, Cutler said it was clear that Shivers "clearly assaulted him in an incredibly intensive fashion," but the state had not proven there was deliberate cruelty involved -- an aggravator that would have prevented the case going to a three-judge panel. She also said the defense's claim that Shivers acted under duress or compulsion had not been proven.

Cyrus then asked Cutler if he could submit the request for the three-judge panel, based on his assertion that a five-year presumptive term for a 17-year-old who was provoked, who did not walk away but took responsibility for his actions, was too much. It was not the "most serious" conduct included in the definition of the offense, Cyrus said.

"A lot of people would not be surprised to see five years for something so brutal," Kalytiak responded. He pointed out that a three-judge panel would need to be presented with the same information that Cutler -- who presided over the trial and had already seen evidence presented and testimony -- was already familiar with.

Cutler then questioned the district attorney's decision to try Shivers as an adult, comparing the case to several cases before the court she said were similar. She referred in particular to a case involving three teen-agers charged with beating a drunken Native man.

"None of these kids were charged as an adult, none were charged with first-degree," Cutler said, adding she did not know all the details of each case and was not intending to tell the state how to do their job.

Then, before granting Cyrus the opportunity to bring the case before the three-judge panel, Cutler said, "What happens to people when they commit a crime should be more or less the same as what other people get then they commit a crime," adding that the court tries to avoid a system where one judge says two years and another says five years.

Kalytiak said his office decided to pursue the first-degree charges against Shivers as an adult, with no offers of a plea agreement, based on the seriousness of the crime. In a later interview, regarding Cutler's charges that the district attorney's office chose to pursue lesser charges in a similar case mentioned in her courtroom, Kalytiak said, "We tried to waive that case into adult court. There was a lot of public outcry about that case, but we couldn't do it."

Kalytiak said presenting the case to the three-judge panel would be "awkward," because none of the judges on the panel will have presided over the case and all the information from trial will need to be re-presented.

"The issue," he said, "will be, would it be manifestly unjust for him to get five years?"

A new sentencing date for Shivers was set for May 2.