Timothy JONES, Appellant, v. STATE of Alaska, Appellee.
No. A-1813.
Court of Appeals of Alaska.
Sept. 25, 1987.
743 P.2d 1388 | 1987 WL 123456
Robert Miller, Asst. Dist. Atty., Dwayne W. McConnell, Dist. Atty., Palmer, and Ronald W. Lorensen, Acting Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
COATS, Judge.
Timothy Jones was convicted, based upon his plea of no contest, of two counts of manslaughter, a class A felony.
While driving under the influence of alcohol, Jones allowed his vehicle to cross the highway center line where it struck two other vehicles. The accident killed two people and severely and permanently injured a third person. A subsequent blood test revealed that Jones’ blood alcohol level was .155 percent. Jones was eighteen years old at the time of the accident and his only prior offense was for speeding.
Jones first argues that Judge Cutler erred in imposing consecutive sentences. Jones cites this court‘s decisions in Lacquement v. State, 644 P.2d 856 (Alaska App. 1982) and Bolhouse v. State, 687 P.2d 1166, 1175 (Alaska App.1984). Lacquement requires that where imposing consecutive presumptive terms produces an aggregate sentence exceeding the presumptive term for a single count, the sentencing court must specifically find that consecutive sentencing is necessary to protect the public. Lacquement, 644 P.2d at 862. Further, the trial court mаy not impose consecutive sentences unless the sentencing court concludes that:
[A] total sentence for all offenses equal to or less than the presumptive term for the most serious offense [is] insufficient to deter and rehabilitate the defendant. Such a conclusion would emphasize “isolation” as a sentencing goal, and would be the equivalent of a finding that the defendant was a dangerous or professional criminal under ABA Standards.
Bolhouse, 687 P.2d at 1175. Lacquement, however, was based upon former
Judge Cutler did not find that imposing consecutive sentences was necessary to protect the public. Rather, she
Jones next argues that Judge Cutler, at sentencing, erred in considering information which he argues was unduly prejudicial. Many people wrote letters to the court concerning the victims’ deaths. These letters were included in the presentence report. In addition, the victims’ mother testified at the sentencing hearing. Jones argues that thе letters and testimony were prohibited under Sandvik v. State, 564 P.2d 20 (Alaska 1977) and Clemans v. State, 680 P.2d 1179 (Alaska App.1984). The Sandvik and Clemans cases caution the sentencing court not to consider highly inflammatory background and character evidence concerning a homicide victim. However, it is proper for the court to consider the impact of a person‘s death on family members. Sandvik, 564 P.2d at 23-24; Clemans, 680 P.2d at 1187-88. We do not believe that the information presented to Judge Cutler was so inflammatory as to exceed what is permissible under Sandvik and Clemans. We are also assured by Judge Cutler‘s statement, that she had considered the Sandvik and Clemans cases and would weigh the information accordingly. We find no error.
Jones also argues that Judge Cutler improperly considered Jones’ parole eligibility in setting his sentence. He argues that this violated the rule of Kelly v. State, 622 P.2d 432 (Alaska 1981). We have reviewed Judge Cutler‘s sentencing remarks. We do not believe that there is any indication that Judge Cutler gave improper consideration to Jones’ parole eligibility in setting his sentence.
Another contention on appeal is that Judge Cutler erred in not ordering a psychological evaluation for Jones. See Bolhouse v. State, 687 P.2d 1166, 1176 (Alaska App.1984). From a review of the record, it appears that the sentence imposed by Judge Cutler was not based in any way on negative assumptions about Jones that might have been rebutted by a psychоlogical evaluation. Judge Cutler actually appears to have concluded that Jones was an excellent prospect for rehabilitation and that a lengthy prison sentence was necessary to deter others from driving while intoxicated rather than to deter Jones. We fail to see how a psychological evaluation could have been of any benefit to Jones in mitigating his sentence. We accordingly find no error.
Jones also challenges his sentence as being excessive. In reviewing a sentence to determine whether it is excessive, the standard which we apply is whether the sentence imposed by the trial court was clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). As we have stated before, at the time of this offense Timothy Jones was only eighteen years old. His only prior offense was a single speeding ticket. Bаlanced against this is the severity of the damage which Jones caused. Two people died and a third person was seriously and permanently injured. Judge Cutler‘s decision to sentence Jones to a ten-year sentence was based upon the severity of Jones’ offense.
In determining whether Jones’ sentence is excessive we must look to other similar cases. In Pears v. State, 672 P.2d 903 (Alaska App.1983), rev‘d, 698 P.2d 1198 (Alaska 1985), the defendant was convicted of two cоunts of second-degree murder and one count of second-degree assault after driving while intoxicated and causing an automobile accident. Pears was highly intoxicated and was warned by uniformed police officers not to drive his car. Pears led the police officers to believe that he would not continue driving. Pears resumed driving and was warned by his companion that his driving was endangering her and other people because he was speeding and running red lights and stop signs. Pears then drove on a highway and ran through two red lights at high speed before
Following conviction, the trial judge sentenced Pears to serve concurrent prison terms of twenty years for the murder charges and five years for the assault. Pears appealed on the ground that his sentence was excessive. 672 P.2d at 905, 910.
After a review of former cases involving mоtor vehicle homicides, we stated:
We note that in the former cases where courts have sentenced drivers who were convicted of a motor vehicle homicide to sentences in the range of ten years, a significant factor in justifying that sentence appears to be the existence of convictions for operating a motor vehicle under the influence of alcohol (now driving while intoxicated) or similar offenses. Frequently these offenses occurred after the fatal accident.
Id. at 911. We distinguished those former cases because the sentences had been imposed for negligent homicide and manslaughter. We approved Pears’ sentence on the ground that it involved such extreme conduct and involved a finding by the jury that Pears’ conduct manifested an extreme indifference to humаn life resulting in convictions for murder. Id. at 911-12.
The Alaska Supreme Court accepted a petition for hearing on Pears’ case on the sentencing issue. The court rejected our analysis and held that a proper sentence should be determined by examining prior manslaughter sentences. 698 P.2d at 1202. The court found that the twenty-year sentence was clearly mistaken. Justices Matthews and Moore concluded that the maximum sentence for Pears should not exceed ten years. Chief Justice Rabinowitz declined to state what an appropriate sentence would be although he joined in the court‘s opinion. 698 P.2d at 1205 n. 15. Justices Compton and Burke dissented, finding that the twenty-year sentence was not clearly mistaken. Id. at 1205.
Pears’ conduct was more severe than that of Jones. Pears was convicted of murder based on the extreme faсts of that case. Additionally, Pears was slightly older than Jones at the time of his offense and had a worse driving record. We interpret Pears as holding that a sentence in excess of ten years would be clearly mistaken in that case. We recognize that this conclusion is weakened by the fact that two justices dissented and a third justice declined to state specifically what sentence might be appropriate. Given our interpretation of the holding in Pears, it is difficult to justify a sentence of ten years in Jones’ case.
Another case which we believe merits discussion is Clemans v. State, 680 P.2d 1179 (Alaska App.1984). Clemans was convicted of two counts of manslaughter. Clemans was driving while intoxicated, lost control of his car on a highway, and hit and killed two young children. His blood alcohol at the time of the collision was estimated at between .200 and .230 percent. At the time of the offense, Clemans was thirty-one years old. Within the five-year рeriod prior to the offense, he had been convicted of five minor traffic offenses, four for moving violations and one for improper equipment. He had never been charged with, or convicted of, any criminal offense prior to the manslaughter offenses. Clemans was sentenced to serve two concurrent terms of eight years with two years suspended. We held that this sentence was not clearly mistaken. Id. at 1180-81. Clemans’ offense is similar to Jones‘. However, a major distinction is that Jones is a significantly younger offender.
While we recognize the severity of Jones’ offense and the extreme necessity to deter people from driving while intoxicated, we believe that the holdings of the cases which we have discussed lead to the conclusion that Jones’ sentence of ten years’ imprisonment is excessive. Wе accordingly order
The sentence is REVERSED.
SINGLETON, Judge, concurring.
I agree with Judge Coats’ resolution of this case.
Jones’ conduct occupies the borderline between criminal negligence and recklessness. A dispassionate review of all sentences imposed on those convicted of class A felonies establishes that a ten-year sentence is too severe for a first offender conviсted of traffic manslaughter, at least in the absence of any history of traffic-related offenses or other aggravating factors. See Huckaby v. State, 632 P.2d 975, 976 n. 1 (Alaska App.1981) (defining the class of worst offenders convicted of automobile related offenses).
I write separately to respond to Chief Judge Bryner‘s dissent. First, I agree with Chief Judge Bryner that the supreme court did not establish a ten-year ceiling on drunk-driving-reckless-murder convictions in Pears v. State, 698 P.2d 1198 (Alaska 1985). Pears is significant, however, because it more clearly establishes what I believe a long line of Alaska Supreme Court decisions have suggested, that a substantial sentence—which I understand to mean a sentence in excess of five years—cannot be justified on the basis of three of the Chaney sentencing criteria: rehabilitation, general deterrence, or reaffirmation of community norms. Id. at 1204. See also State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
While the supreme court did not, in Pears, spell out what it meant by a substantial sеntence, past decisions of the court make it clear that a sentence in the range of five-to-ten years is substantial. See, e.g., Donlun v. State, 527 P.2d 472 (Alaska 1974). It would appear to follow, that sentences in excess of five years should rest on the sentencing goal of isolation, which in turn requires some basis in the record for determining that a person cannot be rehabilitated or deterred by a lesser sentence. Larson v. State, 688 P.2d 592, 599 (Alaska App.1984).
In this case, Judge Cutler was convinced that Jones did not need to be incarcerated for the protection of the public, for his deterrence, or for his rehabilitation. She sentenced him to consecutive five-year terms solely for purposes of general deterrence and affirmation of community norms. Such a sentence, in my view, cannot be reconciled with prior decisions of the Alaska Supreme Court. If а sentence in the range of five years will not deter someone, then it is unlikely that a greater sentence would. By the same token, a sentence of five years will virtually always assure the community that the laws are being enforced and that people are not being allowed to get away with serious offenses. There are, to be sure, individuals who have established by a consistent pattern of criminal behaviоr that they cannot be deterred or rehabilitated within a five-year period. For these individuals, and in my view for these individuals alone (in the absence of a longer presumptive term), longer sentences may be justified.
This view is consistent with the presumptive terms actually established. A person convicted of a class A felony is subject to a presumptive five-year term, which may be aggravated or mitigated in conformity with
Finally, I disagree with Chief Judge Bryner that the court‘s power to impose consecutive sentences somehow justifies a total sentence that could not otherwise be
In my view, Lacquement v. State, 644 P.2d 856 (Alaska App.1982), simply recognizes the independence of the two questions, (1) what total sentence is appropriate and, (2) should that total sentence be comprised of consecutive increments or concurrent segments. In response, Lacquement holds that a sentence that would be inappropriate when viewed as a sentence for the most serious offense, does not automatically become appropriate simply because it is comprised of multiple sentences that were imposed consecutively. Id. at 861-62. I therefore disagree with the suggestion in Judge Coats’ majority opinion that amendments to
BRYNER, Chief Judge, dissenting.
I cannot agree that the sentence imposed by the superior court is precluded under Pears v. State, 698 P.2d 1198 (Alaska 1985). The majority of the court reads Pears to compel a sentencing ceiling of eight years for first felony offenders convicted of multiple death drunken driving manslaughters. This reading of Pears is purely conjectural.
Two members of the supreme court in Pears concluded that the maximum term in that case should not exceed ten years to serve. Two other members would have affirmed the twenty-year term originally imposed. The fifth member of the court, Justice Rabinowitz, while concluding that a twenty-year term was excessive, expressed no view on what an appropriate sentence might be. Pears, 698 P.2d at 1205 n. 15.
In the present case, the majority apparently assumes that Justice Rabinowitz would not have approved a sentence of more than ten years. Both legally and logically, however, Justice Rabinowitz’ decision to refrain from deciding on an appropriate sentence should be taken at face
In this regard, it is notable that, since deciding Pears, the Alaska Supreme Court has rendered two decisions of particular significance to the рresent case. In State v. Andrews, 723 P.2d 85 (Alaska 1986), the court recognized that the legislature, in enacting
The supreme court‘s opinions in Andrews and Dunlop weigh heavily in favоr of a finding that the sentence imposed in this case is not clearly mistaken. Yet, inexplicably, the majority of this court continues to regard Pears as the last word on the issue, and sees it as a foregone conclusion that, whatever else Andrews and Dunlop may have done, they did not alter the bottom line in Pears.
Pears is neither so rigid nor restrictive. The law of sentencing, like the law in general, is not static. I see nothing in Pears that weds our sentencing law irrevocably and in perpetuity to a maximum term of eight years for first offenders convicted of multiple victim drunken driving manslaughters.
Applying the principles of Dunlop and Andrews, the superior court in this case imposed a logical, balanced, and appropriate sentence. That sentence may be somewhat higher than many sentences imposed in prior cases, where other sentencing principles were applied. That is not to say that the sentence is clearly mistaken. It is not.