Jones v. State

OPINION

COATS, Judge.

Timothy Jones was convicted, based upon his plea of no contest, of two counts of manslaughter, a class A felony. AS 11.41.-120. As a first-felony offender, Jones was subject to a presumptive sentence of five years on each count. AS 12.55.125(c)(1). Superior Court Judge Beverly W. Cutler sentenced Jones to five years on each count and imposed these sentences consecutively. Judge Cutler ordered that Jones not be eligible for parole until completing the first sentence. Jones appeals his sentence raising several issues. We find Jones’ ten-year sentence excessive. We therefore remand and order the trial court to impose a sentence of ten years with two years suspended.

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 may 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 AS 12.55.-025(e), which stated simply that the court had the power to impose sentences for two or more crimes either concurrently or consecutively. The statute did not establish any legislative preference for consecutive sentences. See Lacquement, 644 P.2d at 858-61. Since the Lacquement decision, the legislature has repealed former AS 12.-55.025(e) and replaced it with current AS 12.55.025(e) and (g). In State v. Andrews, 707 P.2d 900 (Alaska App.1985), we analyzed current AS 12.55.025 and concluded that AS 12.55.025(e) did not establish a legislative mandate precluding sentencing courts from imposing concurrent sentences. However, we also concluded that AS 12.55.025(e) established a legislative preference for consecutive sentences. 707 P.2d at 908-10. We believe that this legislative preference for consecutive sentences must be interpreted to expand the situations where the court may impose consecutive sentences.

Judge Cutler did not find that imposing consecutive sentences was necessary to protect the public. Rather, she *412concluded that Jones’ offense was so serious that consecutive sentences were necessary to reflect the crime’s seriousness. In particular, Judge Cutler emphasized that two people had died in this accident and that a third person had been seriously and permanently injured. We believe that this reasoning is sufficient to support the imposition of consecutive sentences, in light of the legislative preference for consecutive sentences expressed in AS 12.55.025(e).

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 presen-tence report. In addition, the victims’ mother testified at the sentencing hearing. Jones argues that the 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 Sand-vik 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 psychological 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. Balanced 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 counts 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 *413ultimately colliding with another vehicle, killing two of the occupants and severely injuring a third. 672 P.2d at 909, 913. At the time of the incident, Pears was twenty-years old and had no felony convictions and no convictions for driving while intoxicated or reckless driving. 672 P.2d at 911. In the three-year period before the accident, he had committed seven moving traffic violations and had been convicted of leaving the scene of an accident. 698 P.2d at 1200.

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 motor 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 human 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 facts 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. Cle-mans 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 period 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. Cle-mans 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. We accordingly order *414the trial court to reduce Jones’ sentence to ten years with two years suspended.

The sentence is REVERSED.