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

COATS, Chief Judge.

On June 20, 2006, while pulling up to a traffic light at an Anchorage intersection, Randy McDaniel and Robert Gardner, the passenger and driver of a Dodge Neon, engaged in a gun fight with Shaun Cunningham, a passenger in a Ford Explorer that was stopped directly in front of them. This exchange resulted in the death of Antonius Garvin, the driver of the Ford Explorer. It was determined that McDaniel fired the shot that killed Garvin.

The State charged McDaniel with alternative counts of murder in the second degree and manslaughter for killing Garvin and assault in the third degree for shooting at Cunningham. McDaniel argued that he acted in self-defense in firing at Cunningham because he saw a gun pointed at the Dodge Neon from the Ford Explorer. McDaniel claimed that, because he was acting in self-defense, his inadvertent shooting of Garvin was justified.

In Ward v. State,1 in a concurring opinion, Judge Mannheimer relied on Perkins and Boyce to discuss the duty of care that a person who is acting in self-defense owes to by standers:

Judge Volland instructed the jury on self-defense. He also instructed the jury, based upon the discussion in Judge Mannheimer's concurring opinion in Ward, on the duty of care which a person who was lawfully exercising his right of self-defense owes to bystanders.

The jury rejected McDaniel's self-defense claim and convicted him of murder in the second degree for killing Garvin and assault in the third degree for shooting at Cunningham.

On appeal, McDaniel challenges the jury instruction on the duty of care owed to bystanders by a person exercising the right of self-defense. McDaniel argues that this jury instruction was confusing and misleading, and that it may have influenced jurors to construe the right of self-defense in an improperly narrow manner.

McDaniel's challenge to the jury instruction is moot. The jury not only convicted McDaniel of murder for the death of Garvin, but also convicted him of third-degree assault for shooting at Cunningham. The jury's verdict on the third-degree assault charge shows that the jury found that McDaniel did not act in self-defense when he fired his gun at the other vehicle. Thus, the jury's decision to convict McDaniel of murder for the death of Garvin did not hinge on technical questions regarding the scope of self-defense and the duty of care owed to bystanders. Rather, the murder verdict rested on the jury's conclusion that McDaniel did not act in self-defense at all. This means that the jury's verdict was not affected by any arguable errors in the challenged jury instruction.

McDaniel also claims that Judge Volland impermissibly considered his parole eligibility when imposing his sentence. Judge Volland sentenced McDaniel to fifty-five years with fifteen years suspended for murder in the second degree. (Judge Volland merged the manslaughter conviction with the murder conviction.) He sentenced McDaniel to two years for assault in the third degree, with all but one day to run concurrently with the murder sentence.

In determining McDaniel's sentence, Judge Volland considered the Chaney sentencing criteria3 and, in particular, McDaniel's prospects for rehabilitation. In evaluating McDaniel's prospects for rehabilitation, Judge Volland mentioned McDaniel's parole eligibility. But he referenced it in explaining why he would not impose a sentence of ninety-nine years of imprisonment: "Were I to sentence him to ninety-nine years as a composite sentence, the soonest he'd be out would be [in] thirty-three [years]. He'd be fifty-eight years old." Judge Volland explained that because McDaniel would spend so much of his life in prison, the "sentencing goal of rehabilitation would be frustrated by that kind of a sentence."

McDaniel argues that Judge Volland erred in considering his parole eligibility at sentencing, both in an exchange with McDaniel's attorney and later in his sentencing remarks. In Jackson v. State,4 the Alaska Supreme Court held that a sentencing court could not base the length of a sentence on the assumption that a defendant would be paroled at a particular time.5 Rather, the court determined that the correct approach was for a "sentencing judge to impose an appropriate term of incarceration, considering the Chaney criteria, on the assumption that the entire term may be served."6 The record does not show that Judge Volland violated the Jackson holding by basing McDaniel's sentence on the impermissible assumption that McDaniel would receive favorable treatment by the parole board.

Conclusion

The judgment of the superior court is AFFIRMED.