Bocharski faces re-sentencing for 1995 murder
PRESCOTT – Philip Alan Bocharski, a 41-year-old Congress man convicted of felony murder, will face re-sentencing under the new death penalty statute the Legislature enacted last year.
Yavapai County Superior Court Judge William Kiger on Tuesday denied the defendant's motion to preclude the death penalty on the basis that the new law can't be retroactive.
Ruling in favor of the state, Kiger said that "the process that was put in place should apply to Mr. Bocharski." He also said it is appropriate that a jury decide whether Bocharski will get the ultimate punishment.
In the Ring vs. Arizona decision, the U.S. Supreme Court ruled that Arizona's method of capital sentencing by judge was unconstitutional. As a result, the Legislature enacted new statutory provisions that require a jury to determine if a defendant deserves the death penalty.
This legislation took effect about seven years after Bocharski's crime and six years after his conviction.
A Yavapai County jury convicted Bocharski of murder in September 1996. According to court files, in May 1995 Bocharski stabbed 84-year-old Freda Brown of Congress in the head at least 16 times and stole $500 from her. At that time, Kiger sentenced him to death after the defendant waived his right to a mitigation hearing.
While on death row, his attorneys, Thomas Kelly and Ray Hanna, filed an appeal, which reached the Arizona Supreme Court. In May 2001, the state's highest court remanded the case back to the Superior Court for re-sentencing. Kelly and Hanna said they did not have enough money to conduct a thorough investigation for mitigating evidence.
Arizona Supreme Court Chief Justice Thomas Zlaket wrote in his opinion that the "lack of adequate funding for mitigation required re-sentencing."
Zlaket said, "It is clear that the defendant struggled to obtain funding during the entire pre-sentencing period … because of the county's reluctance to pay for it. In every capital case, the court is required to consider the defendant's background before imposing a sentence. A red flag is raised when sentencing is expedited based solely on the defendant's desire to speed up the process."
This decision forced the Yavapai County Board of Supervisors to set aside $100,000 to cover expenses related to the mitigation investigation in Bocharski's case, Public Defender Dan DeRienzo said.
Now, Bocharski's attorneys have to deal with issues that the new death penalty statute created. To avoid the application of the new law to their client, the defense team filed a number of motions, almost all of which Kiger denied.
In a motion that focused on the retroactivity of the new law, the defense stated that there is "nothing in the new statute that states that it could be applied retroactively."
Kelly said Tuesday that Bocharsky is in a unique position. He said the Arizona Supreme Court ruled in Arizona vs. Towrey that the Ring decision does not apply retroactively to final cases. Based on that, Deputy Yavapai County Attorney Joe Butner argued that this decision then doesn't apply to Bocharski's case because the case is not final.
Waiving the defendant's presence, Kiger scheduled the next status conference for 1:30 p.m. on July 1.
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