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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GLENN W. BOSSIE, )
) Court of Appeals No. A-4279
Appellant, ) Trial Court No. 3AN-90-7538
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1243 - August 21, 1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Karl S. Johnstone,
Judge.
Appearances: Blair McCune, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Leonard
M. Linton, Jr., Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Glenn W. Bossie was convicted of manslaughter,
AS 11.41.120(a)(1), and second-degree assault, AS
11.41.210(a)(2), following a jury trial in the superior court.
Bossie, who was intoxicated, crossed the center line of the Glenn
Highway south of Palmer and collided with another car. The
driver of this car was injured and the passenger was killed. The
victims' car left 43 feet of skid marks; Bossie's car left none.
Bossie denied having anything to drink. However, three hours
after the collision, his blood tested at .18 percent alcohol;
expert extrapolation put Bossie's blood level at .225 percent at
the time of the accident.
Bossie was a first felony offender; he therefore faced
a presumptive term of 5 years' imprisonment for the manslaughter
conviction. AS 11.41.120(b) and AS 12.55.125(c)(1). After
Superior Court Judge Karl S. Johnstone had reviewed the pre-
sentence materials, he announced to the parties that, even though
Bossie had not raised the issue, he believed Bossie might have
established the non-statutory mitigating factor of exceptional
potential for rehabilitation. The State requested a continuance
to prepare to address this court-proposed mitigator.
At the subsequent hearing, Judge Johnstone found that
Bossie did have exceptional potential for rehabilitation. Judge
Johnstone noted Bossie's lack of a prior criminal record, his
good record in the military, his expressions of remorse, his
desire to deal with his drinking problem, and the support Bossie
was receiving from family and friends. However, Judge Johnstone
concluded that, under all the circumstances of Bossie's case,
even though Bossie had exceptional potential for rehabilitation,
it would not be manifestly unjust to fail to adjust the 5-year
presumptive term on account of this non-statutory mitigator. To
the contrary, Judge Johnstone declared, any sentence less than
the 5-year presumptive term would fail to adequately reflect the
sentencing goals of general deterrence and reaffirmation of
societal norms. Judge Johnstone therefore declined to refer
Bossie's case to the three-judge sentencing panel.
On appeal, Bossie argues that Judge Johnstone misunder
stood his duty under AS 12.55.165. The pertinent part of that
statute reads:
If the defendant is subject to [presump
tive] sentencing ... and the court finds by
clear and convincing evidence that manifest
injustice would result from failure to consid
er relevant aggravating or mitigating factors
not specifically included in AS 12.55.155
... , the court shall enter findings and
conclusions and [refer the case] to [the]
three-judge panel for sentencing under
AS 12.55.175.
In Juneby v. State, 641 P.2d 823, 833, 838 n.28 (Alaska
App. 1982), as modified on rehearing, 665 P.2d 30, 31-32 (Alaska
App. 1983), this court addressed the related issue of how the
superior court should proceed when determining whether a presump
tive term should be adjusted based on a statutory mitigating
factor (a factor specified in AS 12.55.155(d)). The sentencing
court must first determine whether the defendant has proved the
mitigating factor by clear and convincing evidence; if so, the
court must then determine whether this mitigating factor,
analyzed in light of the sentencing criteria contained in
AS 12.55.005 and State v. Chaney, 477 P.2d 441 (Alaska 1970),
calls for some adjustment of the presumptive term.
In State v. Price, 740 P.2d 476, 481-82 (Alaska App.
1987), this court held that the three-judge sentencing panel
should employ this same analysis when determining whether a
sentence should be adjusted on account of a non-statutory mitigat
ing factor. As this court noted in Price, "There is no
principled basis for imbuing nonstatutory mitigating factors with
inherently greater weight than statutory factors." 740 P.2d at
481.
Alaska Statute 12.55.165 requires the superior court to
send a defendant's case to the three-judge panel for sentencing
when "manifest injustice would result from failure to consider
relevant aggravating or mitigating factors not specifically
included in AS 12.55.155". Juneby and Price indicate that this
statutory language should be construed to mean that a case should
be referred to the three-judge panel when it would be manifestly
unjust to fail to adjust the presumptive term based on a non-
statutory factor. In fact, this is the construction the court
has placed on AS 12.55.165. Kirby v. State, 748 P.2d 757, 765
(Alaska App. 1987); Smith v. State, 711 P.2d 561, 569-570 (Alaska
App. 1985).
Bossie contends that Judge Johnstone, having found the
non-statutory mitigator of exceptional potential for rehabilita
tion, proceeded simply to decide whether it would be manifestly
unjust to impose a 5-year presumptive term on Bossie, rather than
deciding the issue framed by the statute: whether it would be
manifestly unjust to fail to consider - that is, make some
adjustment for - the non-statutory mitigating factor when
imposing Bossie's sentence. Bossie has misread Judge Johnstone's
remarks. Judge Johnstone stated that he interpreted AS 12.55.165
to mean that a case should be referred to the three-judge panel
if (1) a non-statutory factor has been proved, and (2) it would
be manifestly unjust to fail to adjust the presumptive term by
some amount, no matter how small, on account of this non-
statutory factor. This is a correct interpretation of the
statutory language.
It is true that, during Bossie's sentencing hearing,
both Judge Johnstone and Bossie's attorney phrased the statutory
test in slightly differing ways. However, Bossie's attorney
never indicated any disagreement with Judge Johnstone's phrasing
of the test nor did he assert that Judge Johnstone might be
misconstruing the test. For example, the following exchange
occurred during the prosecutor's sentencing argument:
THE COURT (addressing the prosecutor):
[Y]ou might argue, assuming the court finds a
relevant non-statutory mitigating factor -
i.e., unusually good prospects for rehabilita
tion - whether it would be manifestly unjust
to impose a presumptive term of 5 years.
That's where I thought you were heading.
MR. LINTON [the prosecutor]: Well, I
was gonna - one intermediate step, but ...
THE COURT: Okay.
MR. LINTON: ... yeah. But since Your
Honor is applying it that way, I'll skip the
intermediate step.
THE COURT: Do you dispute that applica
tion, Mr. Sterling?
MR. STERLING [the defense attorney]: No,
[it] sounds to me as though the court is
reading directly from the Smith case.
Thus, as explained above, it appears that the slight
variations in the statement of the test during the course of the
sentencing proceedings were inconsequential. Contrary to
Bossie's assertion on appeal, Judge Johnstone did not go astray
by simply deciding that a 5-year term for Bossie's crime would
not be manifestly unjust. Rather, Judge Johnstone declined to
send Bossie's case to the three-judge panel because he concluded
that any sentence less than the 5-year presumptive term would
fail to satisfy the Chaney criteria of community condemnation and
general deterrence (deterrence of others). Since Judge Johnstone
found that any reduction of the presumptive term would
affirmatively create injustice (by yielding a sentence that would
be clearly mistaken under the Chaney criteria), it necessarily
follows that he believed there was no manifest injustice in
failing to adjust the presumptive term for the non-statutory
mitigating factor. Judge Johnstone correctly interpreted his
statutory duty.
Although this court has encouraged sentencing judges to
send debatable cases to the three-judge panel, Lloyd v. State,
672 P.2d 152, 155 (Alaska App. 1983), AS 12.55.165 nonetheless
calls upon the sentencing judge to make the initial screening
decision. If the sentencing judge declines to send the case to
the three-judge panel, that decision is reviewed under the
"clearly mistaken" standard. Lepley v. State, 807 P.2d 1095,
1099 n.1 (Alaska App. 1991); Kirby, 748 P.2d at 765; Lloyd, 672
P.2d at 156. The question, then, is whether Judge Johnstone was
clearly mistaken when he concluded that the non-statutory mitiga
tor, evaluated together with the other circumstances of the case
in light of the Chaney sentencing criteria, did not plainly call
for some adjustment (no matter how small) of the 5-year
presumptive term.
Judge Johnstone declared that the crime of drunk-
driving manslaughter merited high societal condemnation. Despite
Bossie's excellent background, his remorse, and his current
recognition of his drinking problem, Judge Johnstone weighed
heavily the facts that Bossie was driving a motor vehicle at
50 miles per hour on a two-lane, undivided road, while his blood
alcohol level was over twice the legal limit. Judge Johnstone
found this to be a serious offense among all possible vehicular
homicides.
Judge Johnstone stated his belief that defendants who
commit vehicular manslaughter are often good people who, except
for that one incident, do not need to be rehabilitated in any
significant way. Judge Johnstone continued:
Mr. Bossie is one of those. But I think the
court should recognize, as the legislature
surely did, that that's more often the case
than not. We have outstanding people who
drink and drive, and they get in an accident
and kill somebody. ... [But] the more seri
ous the felony, and particularly those that
cause death, I think the more the court has
to look very carefully at the sentencing goal
of community condemnation and reaffirmation
[of societal values].
After reviewing the record as a whole, including
Bossie's favorable background and prospects for rehabilitation
weighed against the seriousness of his crime, Judge Johnstone
concluded that "the goals of reaffirmation, community
condemnation, and general deterrence could not be satisfactorily
achieved with less than the imposition of the 5-year presumptive
sentence." He therefore declined to refer Bossie's case to the
three-judge panel. Judge Johnstone sentenced Bossie to the 5-
year presumptive term for the manslaughter of the passenger and a
consecutive 2-year term, all suspended, for the second-degree
assault on the driver.
On appeal, Bossie takes issue with Judge Johnstone's
conclusion that Bossie's exceptional potential for rehabilitation
should not be given determinate weight at sentencing because the
people who commit drunk-driving manslaughter are often otherwise
good and productive members of society. Bossie asserts that
Judge Johnstone engaged in unsupported speculation when he
concluded that vehicular manslaughter offenders typically exhibit
a good potential for rehabilitation. Bossie contends that the
case law shows that most drunk-driving manslaughter offenders who
receive the kind of sentence Bossie received (5 years to serve)
usually have aggravated prior records or long-term alcohol
problems.
Prior sentencing decisions do not support Bossie's
argument. Instead, it appears that Judge Johnstone's view of the
matter was justified. Sentences comparable to Bossie's presump
tive 5 years' imprisonment have been upheld in cases where offend
ers, convicted of manslaughter, otherwise had good or even out
standing records. For example, in Jones v. State, 744 P.2d 410
(Alaska App. 1987), the defendant was an 18-year-old with no
prior record except one speeding ticket. Driving with a blood
alcohol level of .15 percent, Jones crossed the center line of a
highway, striking two other vehicles, killing two people and
permanently injuring a third. The superior court sentenced Jones
to serve 10 years. This court, in a two-to-one decision with no
majority opinion, reduced Jones's sentence to 8 years to serve -
still three more years than Bossie received.
In Connolly v. State, 758 P.2d 633 (Alaska App. 1988),
the defendant, who was driving with a blood alcohol level of .20
percent, struck and killed a pedestrian who had just gotten off a
bus. Connolly was a first offender with an excellent prior
history and not even traffic offense convictions. It appears
that Connolly's drinking was due to situational stress. He had
started drinking when, after being laid off work, he had then
begun having marital difficulties. His divorce had become final
on the day of the crime. The State conceded that Connolly had
proved the statutory mitigator of "least serious conduct". This
court nevertheless affirmed a sentence of 7« years with 3«
suspended (4 years to serve).
Similarly, in Dresnek v. State, 697 P.2d 1059 (Alaska
App. 1985), the defendant was driving while intoxicated.
Dresnek, whose blood alcohol level was .12 percent two hours
after the accident, ran a stop sign at 40 miles per hour, killing
one person and injuring two more. He had a good work record, no
prior criminal convictions, and only a minor traffic record.
Nevertheless, this court upheld a sentence of 8 years with 3
years suspended (5 years to serve).
In Clemans v. State, 680 P.2d 1179 (Alaska App. 1984),
the defendant spent the afternoon drinking in celebration of his
birthday; he then started driving home, intoxicated. Clemans
lost control of his vehicle and struck and killed two children
who were walking along the highway. His blood alcohol at the
time was between .20 and .23 percent.
Clemans was 31 years old and he had no prior criminal
convictions, although he had been convicted of five minor traffic
offenses. He received an extremely favorable pre-sentence evalua
tion: he had a good employment history, he regularly made substan
tial child support payments, he had no alcohol or drug abuse
problem, and he had no other significant emotional or
psychological disorders. Moreover, Clemans suffered considerable
grief and remorse over his killing of the two children; he had
completely stopped drinking, and he was genuinely motivated to
help other potential drunk drivers avoid becoming involved in
similar crimes. The sentencing judge declared that he believed
Clemans did not need further rehabilitation or personal
deterrence.
Nevertheless, to satisfy the Chaney criteria of
community condemnation and general deterrence, the superior court
sentenced Clemans to serve 6 years, with another 2 years
suspended. This court upheld this sentence on appeal:
Both the supreme court and this court
have consistently underscored the seriousness
of homicides committed by drunken drivers.
In such cases, we have repeatedly held that
deterrence of others and reaffirmation of
societal norms should be given a prominent
role in sentencing. [citations omitted]
This case is unusual because of Clemans'
favorable background, the responsible manner
in which he reacted to his offense, and his
willingness and ability to perform valuable
community service. As Clemans points out, no
other appellate decision has approved a sen
tence as lengthy as his in the absence of a
prior record of drunken driving offenses or
other comparable aggravating factors.
However, no other appellate decision has
held a comparable sentence to be excessive
for an offense of this magnitude. The
maximum penalty for manslaughter is twenty
years, and ... Clemans would have been
subject to a presumptive term of ten years if
he had previously been convicted of one
felony. The sentence Clemans received is
thus well below the presumptive sentence for
a second offender in his class. See Austin
v. State, 627 P.2d 657, 658 (Alaska App.
1981) ... .
Furthermore, it cannot fairly be said
that this offense involves marginal conduct,
either in terms of intoxication or reckless
ness. At the time of the offense, Clemans
was severely intoxicated and obviously
impaired. ...
Through criminal sentencing, Alaska's
courts must decisively and unequivocally
express society's disapproval of the needless
killing of innocent victims by the reckless
acts of drunken drivers. Neither an offend
er's favorable background nor his willingness
to accept responsibility after the fact pro
vides just cause to disregard the tragic
seriousness of such crimes. If the criminal
justice system is to reduce the alarming
frequency of drunken driving manslaughters,
clear and consistent notice must be served
that the conduct involved in such cases will
not be tolerated by the law. ... Both as an
expression of community condemnation and as a
deterrent to other potential offenders, the
sentence imposed ... was not clearly
mistaken.
Clemans, 680 P.2d at 1189-1190.
Sentence review is not designed to impose absolute
sentencing uniformity. The responsibility of evaluating the
priority of the Chaney sentencing criteria in a particular case
rests with the sentencing judge. Asitonia v. State, 508 P.2d
1023 (Alaska 1973); State v. Chaney, 477 P.2d at 441. Our review
of the sentencing judge's decision is conducted under the
"clearly mistaken" standard established in McClain v. State, 519
P.2d 811, 813-14 (Alaska 1974).
Judge Johnstone concluded that adjustment of the 5-year
presumptive term to take account of the non-statutory mitigator
was not required to prevent manifest injustice. Based upon the
record in Bossie's case, and in light of the judicially
recognized importance of the goals of community condemnation and
deterrence of others in vehicular manslaughter cases, this conclu
sion was not clearly mistaken. We therefore uphold Judge John
stone's decision not to send Bossie's case to the three-judge
sentencing panel and his imposition of the 5-year presumptive
term of imprisonment.
The judgement of the superior court is AFFIRMED.
Compare Barney v State, 786 P.2d 925 (Alaska App.
1990), where this court upheld a sentence of 10 years to serve,
coupled with another 4 years suspended. The defendant, who was
not intoxicated, ran a red light, killing another motorist and
severely injuring her passenger. Barney had an atrocious prior
record comprising convictions for speeding, negligent driving,
reckless driving, and three convictions for eluding a police
officer after being signaled to stop. Moreover, he had twice
been charged with speeding after the manslaughter. This court
found that Barney's conduct was so aggravated as to be comparable
to the second-degree murder charged in Pears.
