Brown v. State

STEWART, Judge,

dissenting in part.

I concur with majority’s decision to remand the case to Judge Reese for re-sentencing because, on this record, I agree with the conclusion of the majority that Brown’s sentence is clearly mistaken.1 Judge Reese’s findings at sentencing and his supplemental findings on remand do not meet our requirements for a substantial departure from the Page benchmark. Having gone that far, my judgment is we need go no farther.

A comparison of Brown’s conduct with the conduct of defendants in other reported cases leads to the conclusion that Brown’s crime appears within the mainstream of second-degree murders as defined by AS 11.41.110(a)(2). I agree with that part of the majority’s analysis. Nevertheless, an individualized sentencing process must also examine the defendant. Perhaps the facts of a defendant’s crime may not justify a depar*1165ture from Page, but the inability to reform a dangerous defendant might.

In some cases discussed by the majority where the defendant’s sentence for second-degree murder substantially exceeded the Page guideline, we noted the gratuitous and inexplicable nature of the homicides.2 In our review of the sentence in another irrational homicide, we also reasoned that a defendant’s unfathomable conduct can engender “grave doubt as to his capacity for reform and provides strong reason to think that he will pose a serious, continuing threat to society.”3

Yet it does not necessarily follow that conduct, such as Brown’s, that is understandable, though no less reprehensible than conduct that is baffling, means that Brown is less of a threat to society and more likely to reform. I think the more important inquiry, in any case, must be whether the defendant will be a continuing threat to society balanced against the defendant’s capacity for reform. Because I do not think that our cases require a deranged or depraved homicide to exceed the Page benchmark, I think that a thorough analysis at sentencing that shows that the defendant will continue as a threat to society and that the defendant has little capacity for reform can justify an upward departure from the Page benchmark.

Therefore, I dissent from the mandate that Judge Reese conduct Brown’s re-sentencing with a thirty-year ceiling. While I agree that Brown’s 55-year term is clearly mistaken on the present record, I also conclude that we should not limit the maximum potential sentence to the Page benchmark.

. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

. See Faulkenberry v. State, 649 P.2d 951 (Alaska App.1982); Ridgely v. State, 739 P.2d 1299 (Alaska App.1987).

. Boziel v. State, 864 P.2d 553, 557 (Alaska App.1993).