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'Incorrect' plea agreement uncovered in murder suspect's criminal history

Jerzy Shedlock

Jerry Andrew Active -- who law enforcement accuses of breaking into an Anchorage home, killing two grandparents and sexually abusing a great grandmother with dementia and a 2-year-old girl -- should have received a longer sentence for offenses committed back in 2009, according to Alaska Attorney General Michael Geraghty, who detailed Active’s prior crimes in a Thursday afternoon press conference.

Nearly all of the former Togiak resident’s past offenses involved alcohol, while one remaining case involved the sexual abuse of an 11-year-old girl. Despite those charges, all of which resulted in jail time, the attorney general argued the 24-year-old man’s most recent alleged crimes could not have been predicted. “These crimes are not indicative of what he is alleged to have done last week,” Geraghty said.

An Active timeline

Active was first charged with felony crimes in 2007. Then 18 years old, Active was arrested by Togiak police for breaking into a home, stealing booze and sharing the stolen alcohol with a minor.

The offenses occurred on Nov. 3 of that year; Active was arrested the next day. He originally faced five felony charges, including second-degree burglary, third-degree criminal mischief and furnishing alcohol to a minor in a local-option community. Alaska law allows communities to restrict alcohol sales, importation and possession by way of a local option election. The state’s rural communities have long battled with endemic alcohol abuse.

State prosecutors entered into a plea agreement with Active, and the 18-year-old agreed to plead guilty to furnishing alcohol to a minor, a class C felony.

Generally, furnishing alcohol to minor is charged as a misdemeanor, but the offense can be a felony in local option communities, Geraghty noted. This nuance in state law resulted in a lighter sentence for Active down the road.

Two years later, he again was arrested in his home town. In 2009, Alaska State Troopers arrested Active for first-degree burglary, second-degree sexual assault, second-degree sexual abuse of a minor and fourth-degree assault. Following his arrest, the local district attorney’s office added two additional counts -- attempted sexual abuse of a minor and criminal trespass.

According to Geraghty’s report, Active had touched an 11-year-old girl’s legs and crotch with his hands on the outside of the victim’s clothing. He started assaulting the girl when she began to scream, and he assaulted the girl’s mother and brother when they responded to the screams.

Once more, Active entered into a plea agreement. He pleaded guilty to attempted sexual abuse of a minor, assault and criminal trespass. In all, Active was sentenced to four years for the crimes. He also was ordered to register as a sex offender for 15 years.

Following his plea agreement, the court required Active to be on probation for four years, and his probation conditions included stipulations specific to sex offenders, like enrolling in sexual abuse-related courses and not consuming alcohol.

But Active violated those conditions on two occasions. He was arrested and jailed on Nov. 11, 2012 by Anchorage police. He was charged with assault, providing false information to an officer and “resisting or interfering with an officer.” Active was sentenced to 120 days, but he was back on the streets by Feb. 5 of this year. A little more than two weeks later, he was arrested for consuming alcohol.

Active’s probation officer recommended a year-long sentence for the second probation violation. The judge, however, believed the lengthy sentence would not stick, Geraghty said. On April 3, Active was sentenced to 150 days in jail.

And on May 25, Active was released from the Anchorage Correctional Complex. He was ordered to report to his probation officer the same day, as all prisoners are required. But the visit was not possible; it was Memorial Day weekend. He would have to wait until Tuesday. The visit never occurred, because 12 hours after his release, Active allegedly killed two elderly people and sexually assaulted two females on opposite ends of the age spectrum.

Everything under review

Following Active’s most recent arrest, legislators urged an investigation of the circumstances behind the alleged assailant’s release and questioned whether he should have served a longer sentence for an earlier assault.

The Alaska Department of Law reviewed all of Active’s cases and determined that in 2009 the state entered into a plea agreement that “may have been incorrect and not consistent with the law,” the attorney general said.

Due to Active’s felony conviction in the 2007 case -- the furnishing alcohol to a minor charge -- and his new conviction for attempted sexual abuse, the two-time felon was subject to a presumptive sentencing term of eight to 15 years. The Department of Law, the Alaska Department of Corrections and the sentencing judge failed to recognize Active’s 2007 conviction as a felony.

It's unclear how that happened. Primarily, the state relies on the Alaska Public Safety Information Network (APSIN) to determine criminal records. When Active was arrested in 2009, the state ran a report in APSIN that failed to mention the 2007 conviction he received for giving alcohol to a minor, which is "usually a misdemeanor."

Geraghty said the network can lag behind in rural villages that lack the technical support of the state’s larger communities. In many cases, physical documents also are cross-referenced for priors, but only if they are available, he said.

The Department of Law is reviewing how the network is used, he added.

Plea agreements are being reviewed, too. The department actually had a meeting about pleas two weeks prior to Active’s latest arrest. In the short time following the crime, no changes have been made. It would take a legislative session to change the laws, Geraghty said.

Anchorage residents have been questioning how such a gruesome crime could occur. They have thrown blame on the Department of Corrections for releasing Active. The defendant’s mother told local media the system failed her son.

Clint Campion, an attorney with the Department of Law, said Active had been ordered to enroll in sexual abuse-related courses. He never did.

“You can’t force somebody to get better,” Geraghty said. “They have to want to get better.”

Contact Jerzy Shedlock at jerzy(at)alaskadispatch.com