By Paul Gottlieb
Peninsula Daily News
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Port Angeles lawyer Karen Unger, representing Smith, filed the notice of appeal Wednesday morning, less than 24 hours after Clallam County Superior Court Judge George L. Wood handed down the punishment and rejected, as a jury did, Smith’s claim of self-defense.
“Most defendants who are convicted by a jury and sentenced to 10 years to prison for second-degree murder would file a notice of appeal,” Unger said Wednesday.
“I’m very disappointed in the verdict and very disappointed in the sentence.”
The case will be heard by the state Division 2 Court of Appeals in Tacoma, which will select Smith’s new attorney, who will be paid at public expense.
Second-degree murder occurs without premeditation, a key element in first-degree murder.
The county Prosecuting Attorney’s Office had charged Smith with first-degree murder, but a jury convicted him of the lesser offense Oct. 15 for the June 20, 2011, death of Fowler in the living room of Smith’s Port Angeles residence.
County Deputy Prosecuting Attorney John Troberg said Wednesday the case probably will be argued before the Court of Appeals sometime in 2015.
Smith was transferred Wednesday for processing at the Washington Corrections Center in Shelton and will be transferred in the next few weeks to another facility, state Department of Corrections spokeswoman Norah West said.
Smith will get credit for about 27 months he served in the Clallam County jail and must serve 36 months of community service upon his release, Wood decided Tuesday.
If Smith’s appeal is unsuccessful, he probably will spend about seven years in prison.
A restitution hearing is set in Clallam County Superior Court for 9 a.m. March 7.
Smith had said he acted in self-defense during an argument over money when he fired several bullets from his nine-round .45-caliber pistol at Fowler, hitting him more than once.
He told police that Fowler threatened him with a knife owned by Smith and that during the confrontation, Fowler walked upstairs to Smith’s daughter’s bedroom.
Smith fired the final shot as Fowler lay on the floor, incapacitated, according to court documents.
The day of the shooting, Smith, a former Navy submariner, told Port Angeles Police Officer Tyler Peninger that he intended to continue shooting Fowler until Fowler stopped moving.
“I was trained to fire until the threat was stopped,” Smith told Wood at his sentencing Tuesday.
“There is remorse beyond any description that any voice could make in my soul for what he did and what happened and what I was forced to do.
“I ask, in your duty, that I beg you have mercy.”
Mercy is what Smith himself lacked on the day he killed Fowler, Wood said at the court hearing.
Smith had said he “methodically” fired two bullets into Fowler’s head as Fowler lay on Smith’s living room floor, Wood recalled.
Smith’s daughter also had testified that she heard Fowler say, “I’m sorry, I’m sorry, please don’t,” before Smith fired the final shots, making the crime “even more egregious,” Wood said.
“Mr. Fowler was pleading for mercy at that point in time and didn’t receive it,” Wood said as Smith shook his head.
“There was no need for Mr. Smith to shoot Mr. Fowler in the head at that particular point, and he was shot,” Wood said, echoing Troberg’s assertion earlier Tuesday that Smith carried out the killing “almost like an execution.”
Also, blood was on the inside of Fowler’s hand when his body was found, but no traces of blood were on the knife that Smith said Fowler threatened him with, according to court records.
“If Fowler held the knife with blood on his hand, blood DNA would have transferred from his hand to the knife,” according to the probable-cause statement.
There was no such transfer, according to court documents.
Wood also noted that during Smith’s trial, Smith never referred to Fowler’s life being terminated but instead alluded to a threat being eliminated.
“It is not up to you to make the decision to eliminate someone’s life,” Wood said.
“I know you are shaking your head, but you put two bullets through his head.”
Fowler’s girlfriend, Karla Pennington, was confident Wednesday that Smith would lose the appeal.
“I don’t know why he’s appealing it,” Pennington said.
“It was so obvious that it wasn’t self-defense.
“What convicted him was the evidence itself.”
A few days before his death, Fowler had had a beer with Smith, Pennington said, describing the two as friends.
Wood, mentioning that Smith had no prior criminal history and saying that Fowler did, imposed a lower-range sentence by giving Smith 130 months in prison.
The sentencing range is 123-220 months.
“Mr. Fowler was in his home, and if one is to believe Mr. Smith, he was trying to defend himself, and one has the right to do that.”
Wood did not give details of Fowler’s history.
Senior Staff Writer Paul Gottlieb can be reached at 360-452-2345, ext. 5060, or at firstname.lastname@example.org.