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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LEONARD J. PUZEWICZ, )
) Court of Appeals No. A-4002
Appellant, ) Trial Court No. 3KN-90-1403
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1306 - August 6, 1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. Shannon D. Hanley, 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.
Leonard J. Puzewicz and his roommate, Arthur Tirrell,
went to a Kenai bar on the afternoon of September 15, 1990; their
purpose was to get drunk. Puzewicz, who had already been
drinking earlier that day, spent several hours drinking beer at
the bar. A little after 9:00 p.m., Puzewicz decided to leave the
bar. Despite Tirell's repeated attempts to dissuade him from
driving, Puzewicz got into his vehicle and began driving north on
the Kenai Spur Highway.
Puzewicz had no driver's license. Between 1985 and
1990, he had been convicted three times of driving while
intoxicated. As a consequence of his third conviction, his
license had been revoked for 10 years _ until the year 2000.
A driver traveling behind Puzewicz on the Kenai Spur
Highway reported that Puzewicz was driving erratically; he
crossed the center line of the highway at least three times in a
two-mile stretch. The driver behind Puzewicz repeatedly flashed
her headlights to alert Puzewicz to pull back into the northbound
lane. At one point, Puzewicz pulled over to the side of the
road, but then he drove away before the other driver could
contact him.
A little farther down the road, Puzewicz crossed the
center line again. This time, he struck another vehicle in which
a mother and her four young children were traveling. The mother
and one of her children were killed; the other three children
were seriously injured. Puzewicz was taken to the hospital for
treatment of a fractured sternum. Despite his assertion that he
had drunk only four or five beers during the hours he spent at
the bar, Puzewicz's blood alcohol level was .219 percent, over
twice the legal limit. Puzewicz told the pre-sentence investi
gator that he did not remember leaving the bar or anything after
that until he was transported to the hospital.
Puzewicz was charged with two counts of second-degree
murder under AS 11.41.110(a)(2) (conduct manifesting extreme
indifference to the value of human life) and three counts of
first-degree assault under AS 11.41.200(a)(3). He pleaded no
contest to the two counts of murder in exchange for the State's
dismissal of the three assault counts. On April 3, 1991,
Puzewicz appeared for sentencing before Superior Court Judge
Jonathan H. Link.
The sentencing range for second-degree murder is 5 to
99 years' imprisonment. AS 12.55.125(b). Puzewicz was a first
felony offender, but, as noted above, he had three convictions
for driving while intoxicated. Puzewicz's most recent DWI
conviction arose from an incident on November 5, 1989, in which
he drove his truck off the highway. Puzewicz's license had
already been suspended, so he was driving illegally; he lied to
the investigating officer about his identity. Puzewicz's blood
alcohol level was found to be .186 percent.
For this third DWI, Puzewicz was sentenced on January
23, 1990, to 180 days in jail with 120 days suspended, to a 10-
year revocation of his privilege to drive, and to residential
alcohol treatment. Puzewicz was still on probation from this
third DWI conviction when he committed the murders in this case.
Puzewicz failed to undertake the residential treatment program
required by the judgement in his 1990 DWI conviction, and the
district court had issued a warrant for his arrest. This warrant
was still unserved when Puzewicz committed the murders in this
case.
The pre-sentence investigator reported that Puzewicz
was genuinely remorseful for what he had done, was eager to
undertake alcohol abuse treatment, and had been attending Alcohol
ics Anonymous meetings since his arrest. However, Judge Link
rejected the pre-sentence investigator's favorable view of
Puzewicz's rehabilitative potential. The judge noted that
Puzewicz had deliberately violated the law simply by getting into
his car in the first place, regardless of his state of
intoxication. Although Judge Link found that Puzewicz's remorse
was genuine, he concluded that a sentence longer than the 5-year
statutory minimum was required to insure Puzewicz's rehabilita
tion and to insure that he was deterred from re-offending:
It's clear that anybody who operates a motor
vehicle under the conditions that you did,
Mr. Puzewicz, is a serious and dangerous
offender. There's no question about that.
The question then becomes whether or not
you're [to be] categorized ... as [among] the
worst [offenders] within the scope of ...
second-degree murder.
Comparing Puzewicz's case to the facts of Pears v.
State, 698 P.2d 1198, 1199 (Alaska 1985), Judge Link found that
Puzewicz, like Pears, had been warned not to drive, and that
Puzewicz, like Pears, had engaged in extremely reckless driving,
"as evidenced by the fact that a [private] citizen was trying to
get you to stop by blinking [her] lights. In fact, you did stop
once, but, before the citizen could get to you, you took off
again."
Judge Link further found that Puzewicz was, in some
respects, a worse offender than Pears. Pears had been 20 years
old, with no prior record. 698 P.2d at 1200. Puzewicz, on the
other hand, was 37 years old and had three DWI convictions within
the previous five years. Puzewicz also had two convictions for
driving without a valid operator's license, as well as two other
alcohol-related misdemeanors: harassment and trespass. Moreover,
as noted above, Puzewicz had failed to undertake the alcohol
treatment ordered by the district court in January, 1990. Based
on this history, Judge Link found that Puzewicz had failed to
avail himself of "ample opportunities for rehabilitation", and
that the sentencing goals of deterrence and reaffirmation of
societal norms required a substantial period of incarceration.
Judge Link also found that the circumstances of Puze
wicz's present offenses were "clearly aggravated": Puzewicz had
gone to the bar with the express purpose of getting drunk; he
drove to the bar when he knew that it was illegal for him to do
so. After spending several hours at the bar, Puzewicz drove away
from the bar despite warnings not to drive. Finally, Puzewicz's
crime was aggravated because he had caused the death of two
people.
Judge Link found that Puzewicz could not be
rehabilitated or deterred by a sentence near the 5-year minimum.
Moreover, Judge Link found that the sentencing goals of general
deterrence and community condemnation of Puzewicz's actions would
not be satisfied unless Puzewicz were sentenced to a term of
imprisonment considerably longer than the 5-year minimum.
Finally, Judge Link found that Puzewicz was a dangerous offender
who needed to be isolated from the community until his rehabilita
tion could be accomplished. For these reasons, Judge Link
sentenced Puzewicz to two concurrent terms of 18 years'
imprisonment with 5 years suspended (13 years to serve).
Puzewicz appeals this sentence, contending it is
excessive. We affirm.
Even before the Alaska legislature enacted the present
criminal code _ when vehicular homicide was classified solely as
manslaughter, with a maximum sentence of 20 years' imprisonment,
under former AS 11.15.040 and 11.15.080 _ the supreme court
upheld sentences of 10 and 12 years to serve for drivers with
prior DWI convictions who again recklessly drove and killed
people. In Sandvik v. State, 564 P.2d 20 (Alaska 1977), the
supreme court affirmed a sentence of 20 years' imprisonment with
8 years suspended for a defendant who had six prior convictions
for operating a motor vehicle while intoxicated and who failed to
stop after the accident. And in Rosendahl v. State, 591 P.2d 538
(Alaska 1979), the supreme court affirmed a 10-year sentence for
a hit-and-run driver with two prior convictions for driving while
intoxicated.
Under Alaska's current criminal code, vehicular
homicide can be second-degree murder, manslaughter, or criminally
negligent homicide, depending on the degree of risk created by
the defendant's conduct and the defendant's level of awareness of
this risk. See AS 11.41.110(a)(2), AS 11.41.120(a), and AS
11.41.130(a). If a defendant is found guilty of second-degree
murder, the sentencing range is 5 to 99 years. AS 12.55.125(b).
Pears v. State was the first case in which the supreme
court addressed the proper sentence for a vehicular homicide
defendant convicted of second-degree murder. The defendant in
Pears had killed two people and injured another after engaging in
extremely reckless, intoxicated driving. The supreme court
ruled, in a 3-2 decision, that sentencing Pears to 20 years'
imprisonment was clearly mistaken. 698 P.2d at 1205. (Two of
the justices in the majority believed that any sentence greater
than 10 years would be clearly mistaken. Id. at 1205 n.15.)
However, Pears was a youthful offender with no prior record; the
supreme court declared that Pears's "relatively good prior record
suggests that there is not a high risk that Pears will again
commit a crime of this nature," and that therefore the sentencing
goal of isolation would not justify a 20-year term of
imprisonment. Id. at 1204.
As Judge Link noted when he sentenced Puzewicz, Puze
wicz's mature age, his history of DWI convictions, his repeated
acts of driving without a valid license, his other alcohol-
related misdemeanor convictions, and his failure to respond to
past efforts to treat his alcohol problem all serve to
distinguish Puzewicz's case from Pears. In these respects,
Puzewicz more closely resembles the defendant in Sandvik, for
whom the supreme court upheld a sentence of 20 years with 8
suspended. Sandvik, 564 P.2d at 25-26.
Moreover, even though Pears was once interpreted as
having set a presumptive ceiling of 10 years' imprisonment for
second-degree murders that do not involve intentional assault,
see State v. Krieger, 731 P.2d 592, 595 (Alaska App. 1987), the
supreme court has since disavowed this interpretation of Pears:
[This interpretation of Pears] is no longer
valid in the wake of this court's decision in
State v. Wentz, 805 P.2d 962 (Alaska 1991),
where we stated that the dicta in Pears pur
porting to limit the circumstances under
which sentences may exceed ten years could
not be applied beyond the particular facts of
that case. Id. at 966 n.5.
State v. Bumpus, 820 P.2d 298, 302 (Alaska 1991) (footnote
omitted).
As described above, when Judge Link determined
Puzewicz's sentence, he considered the sentencing criteria
established in State v. Chaney, 477 P.2d 441 (Alaska 1970), and
now codified in AS 12.55.005. It is the sentencing court's
responsibility to evaluate the importance of the various
sentencing criteria under the particular facts of each case.
Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973), Beauvois v.
State, 837 P.2d 1118, 1123 (Alaska App. 1992).
Based upon Puzewicz's driving history and other alcohol-
related offenses, coupled with the egregious facts of Puzewicz's
present offense, Judge Link concluded that Puzewicz was a
"serious and dangerous offender" who required extensive isolation
from the community. Judge Link also found that Puzewicz's
conduct deserved strong community condemnation. His finding
echoes the words of the supreme court in Layland v. State, 549
P.2d 1182, 1184 (Alaska 1976):
[T]housands of innocent people are killed or
seriously injured nationwide each year by
automobile drivers who take to the road in
spite of the fact that they are highly intoxi
cated. Unlike many crimes, the victim has no
way of protecting himself. While vehicular
homicide does not [involve an intentional
assault], the fact that a loss of life is
involved compels us to consider it among the
most serious offenses. This unique nature of
the offense mandates that the trial court, in
fashioning a sentence, place heavy emphasis
on societal condemnation of the conduct and
the need to protect society.
Our review of the record in this case convinces us that
Judge Link did not abuse his discretion when he weighed the
Chaney criteria, and that the sentence Judge Link imposed on
Puzewicz is not clearly mistaken. McClain v. State, 519 P.2d
811, 813-14 (Alaska 1974). The sentencing decision of the
superior court is AFFIRMED.
