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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VICKI ANN PUSICH, )
) Court of Appeals No. A-
5441
Appellant, ) Trial Court No. 3PA-93-
1917 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1447 - November 24,
1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Palmer, Beverly W.
Cutler, Judge.
Appearances: Ray R. Brown, Dillon &
Findley, Anchorage, for Appellant.
Cynthia M. Hora, Assistant Attorney
General, Office of Special Prosecutions
and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
BRYNER, Chief Judge, concurring.
COATS, Judge, dissenting.
Vicki Ann Pusich was sentenced to a total of 25
years' imprisonment with 7 years suspended (18 years to
serve) for the crimes of manslaughter, AS 11.41.120(a), and
first-degree assault, AS 11.41.200(a). She appeals this
sentence, contending that it is excessive. We affirm.
The Facts Underlying Pusich's Offenses
In the summer of 1993, Pusich was experiencing
marital difficulties. To cope with these difficulties,
Pusich turned to alcohol.
Pusich drank heavily during the week preceding the
Fourth of July. On Tuesday or Wednesday evening (June 29th
or 30th), Pusich's close friend Delfina Walker found
Pusich's vehicle parked in Walker's driveway. Pusich was
passed out in the front seat, the keys in the ignition. On
Wednesday or Thursday night (June 30th or July 1st), Pusich
took Walker on a trip to Wasilla. During this trip, Pusich
drove at speeds of up to 90 miles per hour and was passing
other vehicles recklessly. Walker repeatedly told Pusich to
slow down - that her driving was scaring Walker. Pusich
assured Walker that she "was fine" and that she would stop
driving so recklessly - but she continued to drive in this
reckless manner. After they arrived in Wasilla, Walker
tricked Pusich into giving her the keys to Pusich's car, so
it was Walker who drove them home to Anchorage. However,
during this return trip, Pusich constantly demanded that
Walker leave the highway and drive to a bar so that Pusich
could get a drink; Pusich also stretched out her leg from
the passenger seat and pushed down on the gas pedal when she
thought that Walker was not driving fast enough.
On Thursday night (July 1st), Pusich's husband
warned her to stop drinking and driving. According to
Walker, who overheard the conversation, Pusich's husband
told Pusich that "she was never going to learn until she
ended up killing somebody".
At the end of work on Friday afternoon (July 2nd),
Pusich announced to a co-worker that she intended "to go to
a liquor store and drink herself into a stupor". Pusich
began to drink again on Sunday morning, July 4th. Pusich
spent that afternoon and evening at Walker's house. Pusich
had called Walker to ask if she could come over; Pusich
explained that her husband had come home early from a
camping trip, and she did not wish to be around him. Walker
was going to a picnic that day, but she told Pusich that she
was welcome to let herself into the house. (Pusich knew
where the spare key was hidden.)
During the afternoon and evening, Walker called
Pusich several times to check on her. From talking to
Pusich, Walker could tell that she was drinking. Walker
repeatedly made Pusich promise to stay at Walker's residence
and not to drive anywhere. Pusich, however, broke her word
and started driving from Anchorage to Wasilla.
During this drive, Pusich exhibited extreme
recklessness, weaving in and out of traffic, tailgating
other cars, and traveling at speeds of up to 90 miles per
hour. She apparently was drinking beer as she drove: beer
bottles, both empty and full, were found in Pusich's
vehicle.
Just south of Wasilla, Pusich either tried to pass
on a right-hand curve or else inexplicably failed to
negotiate the curve. She drove straight ahead, neither
braking nor veering, crossing two lanes of traffic to hit a
car in which four people were traveling: Mark and Nancy
Langley, their son Brian, and thirteen-year-old Jamie Farr.
Mark Langley and Jamie Farr were killed at the scene. Brian
Langley was taken by helicopter to an Anchorage hospital,
where he died of his injuries. Nancy Langley was critically
injured but survived.
A grand jury indicted Pusich on three counts of
second-degree murder, AS 11.41.110(a)(2) (causing death
through conduct manifesting extreme indifference to the
value of human life), and one count of first-degree assault,
AS 11.41.200(a)(1) (recklessly causing serious physical
injury by means of a dangerous instrument).1 Pusich and the
State later reached a plea agreement; under this agreement,
Pusich pleaded no contest to a single consolidated count of
manslaughter (charging three deaths), AS 11.41.120(a), and
to first-degree assault.
Pusich's Background
Pusich is not a youthful offender; she was 37
years old at the time of these offenses. Pusich has a long-
standing alcohol problem. In the past, she has attended
treatment at the Salvation Army's Clitheroe Center and has
participated in Alcoholics Anonymous meetings. She
nevertheless returned to drinking.
Pusich has a history of drunk-driving offenses.
In 1978, in Oregon, Pusich ran her car into a concrete
highway divider at a speed of approximately 78 miles per
hour; her breath test result was .22 percent. She was
convicted of driving while intoxicated. Pusich was
convicted of DWI again in Oregon in 1985, when she was
stopped for weaving along the road and crossing the center
line; her breath test result on this occasion was .25
percent.
In between her two DWI convictions, Pusich was
convicted in 1984 of driving with a suspended license.
Further, Pusich was charged with failing to appear in
connection with her 1985 DWI charge. Pusich failed to
attend a hearing on an order to show cause; a bench warrant
was issued for her arrest, which remained outstanding at the
time of the pre-sentence report in this case.
Pusich also has a lengthy history of other traffic
violations which did not lead to criminal convictions.
Beginning in 1977, Pusich's operator's license was
repeatedly revoked for various periods of time: for
speeding (1977), for failing to obey a traffic signal
(1977), for failing to report an accident (1979), for
refusing to take a breath test (1979), for driving without
lights (1980), for failing to obey a traffic signal (1983),
for failing to appear at a hearing (1983), for failing to
obey a traffic signal (1984), for failing to appear at a
hearing (1984), and for failing to take a breath test
(1985).
The Sentencing
Pusich's offenses, manslaughter and first-degree
assault, are both class A felonies. AS 11.41.120(b); AS
11.41.200(b). The maximum sentence for a class A felony is
20 years' imprisonment. AS 12.55.125(c). Because Pusich
was a first-felony offender, the presumptive term for each
of her offenses was 5 years' imprisonment. AS
12.55.125(c)(1); Pruett v. State, 742 P.2d 257, 262-63
(Alaska App. 1987).
Superior Court Judge Beverly W. Cutler found that
the State had proved four aggravating factors under AS
12.55.155(c): (c)(4) - that Pusich employed a dangerous
instrument (an automobile) in furtherance of the offense;
(c)(6) - that Pusich's conduct had created a risk of
imminent injury to three or more persons; (c)(10) - that
Pusich's conduct was among the most serious within the
definition of manslaughter; and (c)(21) - that Pusich had a
history of repeated violations of criminal laws similar in
nature to her present offenses.
For the offense of manslaughter (which encompassed
three deaths), Judge Cutler sentenced Pusich to 18 years'
imprisonment with 5 years suspended (13 years to serve).
For the offense of first-degree assault, Judge Cutler
sentenced Pusich to 7 years' imprisonment with 2 years
suspended (5 years to serve). Judge Cutler imposed these
sentences consecutively. Thus, Pusich's composite sentence
is 25 years' imprisonment with 7 years suspended - 18 years
to serve.
Judge Cutler realized that this sentence was more
severe than any vehicular homicide sentence that had been
affirmed on appeal in Alaska, but she concluded that
Pusich's case was more aggravated than any of the reported
cases. She based this conclusion on Pusich's driving
history, the failure of Pusich's prior alcohol treatment and
counseling, Pusich's extreme recklessness, and the serious
consequences of that recklessness.
Judge Cutler concluded that Pusich's underlying
problem was her addiction to alcohol, and the judge saw
little prospect of Pusich's overcoming this problem. Judge
Cutler noted that Pusich had failed to benefit from past
treatment and rehabilitative efforts.
Judge Cutler additionally found that Pusich's
degree of recklessness verged on the type of extreme
recklessness that would constitute second-degree murder
(extreme indifference to the value of human life). The
judge found that Pusich had consciously engaged in "wild
driving for a lengthy period of time". Moreover, Judge
Cutler noted, Pusich engaged in this drunken driving "in a
headstrong fashion", consciously disregarding the advice and
warnings of family and friends.
Pusich's Challenges to the Aggravating
Factors and her Challenge to Judge Cutler's
Finding that She was a Worst Offender
Pusich argues that Judge Cutler was clearly
erroneous when she found that the State had proved
aggravating factor (c)(10) - that Pusich's conduct was among
the worst included within the definition of manslaughter.
She contends that Judge Cutler was wrong to characterize her
manslaughter as among the most serious based on the fact
that the single manslaughter count consolidated three
deaths. However, in Curl v. State, 843 P.2d 1244, 1245
(Alaska App. 1992), this court upheld a finding of
aggravator (c)(10) when the defendant pleaded no contest to
a single count of sexual abuse, based on the fact that the
single count represented one of a series of 20 to 25
incidents of abuse, some of which involved multiple acts of
abuse. And in Monroe v. State, 752 P.2d 1017, 1021 (Alaska
App. 1988), this court upheld a finding of aggravator
(c)(10) based on the fact that the defendant's arson had
endangered a large number of people (rather than the one
person minimally necessary to constitute the offense of
first-degree arson). We conclude that Judge Cutler could
properly consider the fact that Pusich's manslaughter count
charged three deaths.
Moreover, Pusich's brief to this court neglects to
mention or challenge Judge Cutler's finding that Pusich's
culpable mental state (her degree of recklessness)
approached the culpability of second-degree murder. This
finding, too, was sufficient to support aggravating factor
(c)(10). See Benboe v. State, 698 P.2d 1230, 1232 (Alaska
App. 1985). For these reasons, we uphold Judge Cutler's
finding that Pusich's conduct was among the most serious
within the definition of manslaughter.
Pusich alternatively argues that, assuming Judge
Cutler properly found aggravator (c)(10), the other three
aggravating factors should not have been considered
separately from aggravator (c)(10). Pusich cites this
court's opinion on rehearing in Juneby v. State, 665 P.2d
30, 34 (Alaska App. 1983):
To the extent that AS 12.55.155(c)(10) serves as a catch-all
within which a number of other more specific aggravating
factors are simply accumulated, it is not truly separate
from and independent of its component parts. Thus, in order
to insure that the same factors are not relied upon twice to
increase a presumptive term, in such instances the
sentencing court should assess the significance of the
specific aggravating factors by treating them as components
of the more general finding that the defendant's conduct was
among the most serious within the definition of the offense.
However, having reviewed Judge Cutler's findings in light of
the record in this case, we do not agree with Pusich that
aggravator (c)(10) served simply as a summation of the other
three aggravating factors.
Judge Cutler found aggravator (c)(10) based on the
fact that Pusich's manslaughter conviction encompassed three
homicides, as well as on the fact that Pusich's culpable
mental state verged on the culpable mental state for the
next higher degree of homicide, second-degree murder.
Aggravator (c)(21) was based on Pusich's extensive history
of motor vehicle offenses, many of them alcohol-related.
Aggravator (c)(6) was based on the fact that Pusich's
conduct - her "wild driv[e]" from Anchorage to Wasilla -
endangered dozens if not hundreds of people. And aggravator
(c)(4) was based on the fact that Pusich used an automobile
as an instrument of destruction. For these reasons, we find
no error in Judge Cutler's separate consideration of the
four aggravating factors.
Finally, Pusich challenges Judge Cutler's apparent
finding that Pusich was a "worst offender". Because Judge
Cutler did not impose a maximum sentence on Pusich, no such
finding was necessary. Thus, Pusich's argument is moot.
Pusich's Sentence
Pusich contends that her composite sentence of 18
years to serve (25 years with 7 suspended) is excessive when
compared to other sentences for vehicular homicide that have
been reviewed by this court and by the supreme court.
Pusich's sentence is, in fact, higher than any other
reviewed sentence in this category of offenses.2 However,
"[s]entencing is an individualized process". Burleson v.
State, 543 P.2d 1195, 1202 (Alaska 1975). Moreover, the
"clearly mistaken" test that governs sentence review in
Alaska
implies a permissible range of reasonable sentences which a
reviewing court, after an independent review of the record,
will not modify[.] Although "permissible range of
reasonable sentences" has never been precisely defined, it
is obviously a function in any particular case of such
considerations as the presence of aggravating factors, the
psychological make-up of the defendant, the need for
isolation, and the sentences imposed in comparable cases[.]
State v. Bumpus, 820 P.2d 298, 305 (Alaska 1991) (internal
quotations and citations omitted).
Further, because the legislature is the branch of
government primarily entrusted with the task of defining
crimes and prescribing punishments, see Dancer v. State, 715
P.2d 1174, 1179 & n.4 (Alaska App. 1986), the range of
reasonable sentences envisioned by the "clearly mistaken"
test must be anchored in the sentencing range established by
the legislature for the offense in question. The
"particular facts of the individualized case [must be
examined] in light of the total range of sentences
authorized by the legislature for the particular offense".
State v. McPherson, 855 P.2d 420, 422 (Alaska 1993) (quoting
State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).
Thus, the fact that Pusich's sentence is higher
than any other reviewed sentence for vehicular homicide does
not necessarily mean that her sentence is excessive. The
aim of sentence review is not to achieve complete uniformity
in sentencing, but rather to achieve reasonable uniformity
and to eliminate unjustified disparity. AS 12.55.005;
Burleson, 543 P.2d at 1202. When assessing Pusich's
sentence, we must consider the offenses for which she was
convicted, the conduct underlying those offenses, the nature
of Pusich's criminal history, and her potential for
rehabilitation. Then, using the sentencing goals first
announced in State v. Chaney, 477 P.2d 441, 443-44 (Alaska
1970), and now codified in AS 12.55.005, we must evaluate
these factors, weighing them within the range of sentences
established by the legislature for Pusich's offenses.
To insure against unjustified sentencing
disparity, we must take into account "the sentences imposed
in comparable cases". Bumpus, supra. Past sentencing
decisions supply an historical record of "sentencing
practices for specific types of offenses"; this record can
"provide realistic, experientially based sentencing norms
for guidance in future cases". Williams v. State (opinion
on rehearing), 809 P.2d 931, 933 (Alaska App. 1991) (quoting
MacPherson v. State, 800 P.2d 928, 933 (Alaska App. 1990)
(Bryner, C.J., concurring and dissenting)). However, the
fact that lesser sentences have been affirmed for vehicular
homicide does not mean that these sentences constitute the
limit of sentencing discretion:
[O]ur affirmance of a sentence on appeal means only that we
conclude the sentence is not excessive; it does not set a
ceiling on sentences in similar cases, nor does it
necessarily mean that we would not have affirmed a greater
sentence in the appeal being litigated.
Hurn v. State, 872 P.2d 189, 199-200 (Alaska App. 1994).
Therefore, although cases affirming vehicular homicide
sentences are important to our inquiry, we must pay special
attention to those cases in which sentences for vehicular
homicide have been found excessive. There are two such
cases, Pears v. State and Jones v. State.
(a) Cases Reversing Vehicular Homicide Sentences
In Pears v. State, 698 P.2d 1198 (Alaska 1985),
the defendant drove even after being warned by a police
officer that he was too drunk to drive. Pears drove at high
speed through two red lights and finally collided with
another car. He killed two occupants of this car and
injured a third. 698 P.2d at 1199. Convicted of two counts
of second-degree murder and one count of second-degree
assault, Pears was sentenced to serve a total of 20 years'
imprisonment. Id. at 1199-1200.
Pears was 20 years old. He had no prior felony
convictions, no prior convictions for DWI, and no prior
convictions for reckless driving. He did, however, have
seven moving violations in the previous three years, and he
had also been convicted of leaving the scene of an accident
after he hit a vehicle in a parking lot and then drove away.
Id. at 1200.
At the time of Pears's appeal, 12 years was the
longest sentence of imprisonment for vehicular homicide
subjected to appellate review in Alaska. That 12-year
sentence had been imposed in Sandvik v. State, 564 P.2d 20
(Alaska 1977).
The defendant in Sandvik was convicted of
manslaughter under Alaska's former criminal code. Driving
drunk, Sandvik inexplicably left the road and killed a
bicyclist who was cycling alongside the highway. 564 P.2d
at 25 n.15. Sandvik was 40 years old; he had been battling
alcoholism throughout his adult life. He had six prior
convictions for driving while intoxicated, and he was
awaiting trial on two more DWI charges at the time of the
homicide. Id. at 25.
The superior court sentenced Sandvik to 20 years'
imprisonment with 8 years suspended. Id. The supreme court
upheld this sentence:
Although the sentence received by Sandvik is longer than any
imposed for vehicular manslaughter which has previously been
appealed to this court, we think that Sandvik's aggravated
record of prior alcohol-related vehicular offenses, his
demonstrated danger to the public, his long and extensive
involvement with alcohol problems and consequent need for
extensive treatment, and the circumstances of the ...
homicide preclude us from concluding that the sentence
imposed was "clearly mistaken" under the criteria of State
v. Chaney, 477 P.2d 441 (Alaska 1970), and its progeny.
Sandvik, 564 P.2d at 26.
Pears's 20-year sentence was considerably more
severe than Sandvik's. Three members of the supreme court
concluded that it was too severe. The majority opinion
declared that Pears's 20-year sentence was clearly mistaken
because "Pears's conduct [was] generally comparable to that
of the defendant[] in [Sandvik], and his record of prior
offenses is better". Pears, 698 P.2d at 1203.3
As noted, Pears killed two people and injured a
third, while Sandvik killed only one person. Given the
different amount of human destruction wrought by these two
defendants, the Pears majority's assertion that Pears's
conduct was "generally comparable" to Sandvik's conduct may
seem surprising. However, at the time Pears was decided,
Alaska law declared that when a person recklessly endangered
human life, that person's criminal liability was the same
whether the reckless conduct resulted in one death or many.
The Alaska Supreme Court had held in Thessen v. State, 508
P.2d 1192 (Alaska 1973), that one act of recklessness could
support only one homicide conviction, no matter how many
people the defendant killed. 508 P.2d at 1197.
But in 1986 (a little over one year after Pears
was decided), the Alaska Supreme Court reversed Thessen in a
case called State v. Dunlop, 721 P.2d 604 (Alaska 1986).
The defendant in Dunlop had been drinking in a bar. After
becoming extremely intoxicated, Dunlop drove a car. He
struck and killed two pedestrians at a nearby intersection.
721 P.2d at 605. The supreme court renounced the reasoning
of Thessen and declared that a defendant who, by an act of
recklessness, killed more than one person should be held to
have committed a separate criminal homicide for each victim:
The Thessen reasoning is flawed. By focusing on [the
accused's lack of a specific intent to kill], Thessen
ignores the gravamen of the offense of manslaughter and, by
analogy, of assault. The [manslaughter] statute prohibits
causing the death of another person. ... When several
deaths or injuries occur in the course of a single incident,
the offense prohibited by the statute has been [committed]
several times over. The identity of [each separate victim]
represents different conduct - it represents conduct
directed at that victim. ... Instead of focusing on the
accused's intent, we must look at the consequences.
Dunlop, 721 P.2d at 609 (emphasis in the original).
Dunlop undermined a major foundation of the
sentencing decision in Pears. After Dunlop, in the context
of determining the proper sentence for vehicular homicide,
the act of killing several people and injuring others can no
longer be deemed "generally comparable" to Sandvik's act of
killing one person. Along with the degree of recklessness
manifested by the defendant and the defendant's criminal
history, a sentencing court can and should consider the
seriousness of the consequences of the defendant's actions.
The other appellate decision reversing a vehicular
manslaughter sentence is Jones v. State, 744 P.2d 410
(Alaska App. 1987). The defendant in Jones was an 18-year-
old with one prior speeding conviction. He drove while
intoxicated, crossed the center line of the highway, and
killed two people and permanently injured a third. 744 P.2d
at 411. Jones pleaded no contest to two counts of
manslaughter; he was sentenced to two consecutive 5-year
terms - a total of 10 years to serve. Id. By a vote of 2
to 1, this court reversed Jones's sentence and directed the
superior court to impose no more than 10 years with 2
suspended (8 years to serve). Id. at 413-14.
The Jones case produced three opinions. Judge
Coats, writing for the court, interpreted Pears v. State as
setting a limit of 10 years' imprisonment for vehicular
homicide. Judge Singleton concurred in the decision to
reverse Jones's sentence, although he rejected Judge Coats's
interpretation of Pears. Instead, Judge Singleton believed
that a "dispassionate review" of past case law
"establishe[d] that a ten-year sentence is too severe for a
first offender convicted of traffic manslaughter, at least
in the absence of any history of traffic-related offenses or
other aggravating factors". Jones, 744 P.2d at 414. In
fact, Judge Singleton asserted, the sentencing goals of
rehabilitation, general deterrence, and reaffirmation of
community norms could never, by themselves, justify a
sentence of more than 5 years' imprisonment. Any lengthier
sentence would have to be based solely on the sentencing
goal of isolation. Id.
Chief Judge Bryner, dissenting, rejected the idea
that Pears established a 10-year ceiling on vehicular
homicide sentences. Jones, 744 P.2d at 415-16. He further
pointed out that the supreme court's decision in Dunlop had
weakened the precedential value of Pears. Jones, 744 P.2d
at 416. Judge Bryner declared that he would affirm Jones's
10-year sentence. Id.
The legal reasoning underlying the majority
opinions in Jones is no longer valid. Judge Coats's
interpretation of Pears - that it established a 10-year
ceiling on vehicular homicide sentences - has been disavowed
by the supreme court itself. State v. Wentz, 805 P.2d 962,
966 n.5 (Alaska 1991). See also State v. Bumpus, 820 P.2d
298, 302 (Alaska 1991); Puzewicz v. State, 856 P.2d 1178,
1181 (Alaska App. 1993). And Judge Singleton's suggestion
that isolation was the only sentencing goal that could
justify a lengthy sentence was rejected by this court in
Ratliff v. State, 798 P.2d 1288, 1293 n.3 (Alaska App.
1990). These later judicial events have considerably
diminished the precedential value of this court's sentencing
decision in Jones.
(b) Cases Affirming Vehicular Homicide Sentences
We now address the appellate decisions that have
affirmed lengthy sentences for vehicular manslaughter. We
have already discussed the supreme court's decision in
Sandvik: to reiterate, the supreme court upheld a sentence
of 20 years' imprisonment with 8 years suspended (12 years
to serve) for a defendant convicted of one count of
manslaughter. Sandvik killed a single person, but he had a
lengthy history of DWI offenses.
The supreme court has also twice affirmed a
sentence of 10 years' imprisonment for vehicular
manslaughter. In Gullard v. State, 497 P.2d 93 (Alaska
1972) (per curiam), the court upheld a 10-year sentence for
a youthful defendant (19 years old) who drove while
intoxicated, killed four people, and was convicted of a
single consolidated count of manslaughter. And in Rosendahl
v. State, 591 P.2d 538 (Alaska 1979), the court affirmed a
10-year manslaughter sentence for a defendant who drove
while intoxicated and killed one person. Rosendahl had two
prior convictions for driving while intoxicated, as well as
five speeding convictions. Id. at 539.
Turning to the decisions of this court, in Barney
v. State, 786 P.2d 925 (Alaska App. 1990), this court upheld
a sentence of 10 years to serve for a vehicular
homicide/assault under Alaska's current criminal code. The
defendant in Barney sped south on Minnesota Drive, weaving
in and out of traffic at speeds of 70 to 75 miles per hour,
toward the area where Minnesota Drive turns into O'Malley
Road. Barney then drove through a red light at the
intersection of O'Malley and C Street, striking a car. He
killed the driver and seriously injured the passenger. 786
P.2d at 925. Barney pleaded no contest to manslaughter and
second-degree assault. Id. The superior court sentenced
him to a composite sentence of 14 years' imprisonment with 4
years suspended (10 years to serve). Id. at 926.
Barney was 26 years old. He had no prior
felonies, but he had "an extensive record of traffic
violations and his license ha[d] been suspended on numerous
occasions". Id. at 925-26. These traffic offenses included
numerous speeding violations, negligent driving and reckless
driving convictions, and three instances in which Barney
attempted to elude a police officer after being signaled to
stop. Id. at 925.
In affirming Barney's sentence, this court noted
that Barney, at 26 years of age, was significantly older
than Pears (who was 20) or Jones (who was 18), and that he
had a "substantial record of driving offenses". Id. at 927.
This court concluded that the egregiousness of Barney's
conduct "approximate[d] Pears' conduct" and "was clearly
more serious than Jones['s]". Id. at 927. This court found
that Barney's conduct of "eluding police officers, racing
down the highway, and running red lights" demonstrated
Barney's "callousness and irresponsibility", and that
Barney's "record of recidivism in life-threatening reckless
driving" justified the superior court in concluding that
"Barney needed to be isolated for the protection of the
public". Id. at 927 & n.1.
In Ratliff v. State, 798 P.2d 1288 (Alaska App.
1990), the defendant drank alcoholic beverages and smoked
marijuana, then started driving home. Veering into the
oncoming lane, he forced one car off the road into a
snowbank and almost forced another car off the road. Then
Ratliff drove the wrong way up an exit ramp onto a divided
highway. For two miles, Ratliff sped down the highway
against the flow of traffic, forcing vehicles to swerve out
of his path, oblivious to the efforts of other drivers to
alert him to the peril. Finally, Ratliff drove head-on into
another car, killing the driver. Id. at 1289.
A jury convicted Ratliff of second-degree murder.
Ratliff had one prior DWI conviction. Id. at 1292. This
court affirmed Ratliff's sentence of 13 years' imprisonment
with 3 years suspended (10 years to serve). Id. at 1293.
In Puzewicz v. State, 856 P.2d 1178 (Alaska App.
1993), the defendant went to a bar with the avowed purpose
of getting drunk. After several hours of drinking, and
despite a friend's entreaties not to drive, Puzewicz drove
intoxicated, crossed the center line, and struck an oncoming
car, killing the driver and one passenger and seriously
injuring three other passengers. He pleaded no contest to
two counts of second-degree murder (in exchange for the
State's dropping the three counts of first-degree assault).
Id. at 1179.
Puzewicz had three prior DWI convictions. He had
no right to be driving at all, because his license had
already been suspended until the year 2000. His blood
alcohol level was .219 percent. Id. at 1179.
The superior court sentenced Puzewicz to 18 years'
imprisonment with 5 years suspended (13 years to serve).
This court affirmed that sentence. We noted that, in
contrast to the defendant in Pears, Puzewicz was not a
youthful offender with a clean record. Rather, he was a
mature defendant with a record of DWI convictions and failed
attempts at alcohol treatment. Id. at 1181. Moreover, the
facts of Puzewicz's offense were egregious. Id. at 1182.
(c) Application of these Precedents to Pusich's
Case
This survey of prior cases reveals that both the
supreme court and this court have affirmed sentences of 10
to 13 years' imprisonment for vehicular homicide. More
important, this survey discloses certain salient factors
that the courts have deemed significant in drunk-driving
homicides: the degree of the defendant's recklessness, the
magnitude of the consequences of the defendant's conduct,
the age of the defendant, the defendant's record of past
offenses, and the defendant's record of alcohol abuse. When
Pusich's case is evaluated in light of these factors, it is
readily apparent that all these facets of Pusich's case
point toward a severe sentence.
Pusich is not a youthful offender. She has a long
history of alcoholism. Pusich has gone through alcohol
treatment, but she returned to drinking. She has a history
of drunk-driving offenses. Further, she fled the scene of
an accident in Oregon, and she also failed to appear in
court for a show cause hearing, both acts evidencing a
disregard for the law.
Pusich's present offense was the culmination of a
week-long drinking binge in which Pusich's announced intent
was "to drink herself into a stupor". During this time,
both Pusich's closest friend and Pusich's husband warned her
against driving. On the day of the homicides, Pusich's
friend knew that Pusich was drunk and made her promise not
to go anywhere. Nevertheless, Pusich decided to drive from
Anchorage to Wasilla.
During this drive, Pusich exhibited extreme
recklessness, weaving in and out of traffic, tailgating
other cars, and traveling at speeds of up to 90 miles per
hour. At the site of the collision, Pusich inexplicably
failed to negotiate a curve; she drove straight ahead,
without braking or veering, and hit the car in which the
victims were traveling. Judge Cutler found that Pusich's
degree of recklessness approached "extreme indifference to
the value of human life", the culpable mental state required
for second-degree murder.
When we compare Pusich's case to the previous
Alaska decisions in this area, we find that her recklessness
is among the most egregious, her record is among the worst,
and the results of her conduct are among the most extreme -
Pusich killed three people and seriously injured a fourth.
Having reached this conclusion, we next must analyze
Pusich's case within the sentencing range established by the
legislature for Pusich's offenses.
Pusich was convicted of one consolidated count of
manslaughter and one count of first-degree assault. Both of
these offenses are class A felonies. AS 11.41.120(b); AS
11.41.200(b). The maximum sentence for a class A felony is
20 years' imprisonment. AS 12.55.125(c). Because Pusich
was a first-felony offender, the presumptive term for each
of her offenses was 5 years' imprisonment. AS
12.55.125(c)(1); Pruett v. State, 742 P.2d 257, 262-63
(Alaska App. 1987). Because Judge Cutler found aggravating
factors, she was authorized to sentence Pusich to any term
up to the 20-year maximum. AS 12.55.155(a)(2).
This court has cautioned that even when
aggravating factors are present, a sentencing judge must
still take the presumptive term as the point of departure.
Presumptive sentencing was established to further the
legislative goal of achieving reasonable uniformity and
eliminating unjustified disparity in sentencing. See AS
12.55.005. A significant upward adjustment of the
presumptive term should be made only when the aggravating
factors, judged in light of the Chaney sentencing criteria,
show the defendant's case to be significantly more serious
than the typical offense within the definition of the crime
for which the defendant is being sentenced. Juneby v.
State, 641 P.2d 823, 835 & n.21, 838 (Alaska App. 1982),
modified on rehrg., 665 P.2d 30, 32-33 (Alaska App. 1983);
State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
For the offense of manslaughter (which encompassed
three deaths), Judge Cutler sentenced Pusich to 18 years'
imprisonment with 5 years suspended - 13 years to serve.
When we compare this sentence to the 12-year term upheld in
Sandvik for a manslaughter defendant with a similarly bad
record who caused only one death, we conclude that Pusich's
manslaughter sentence is not clearly mistaken. We similarly
find no error in the sentence Pusich received for first-
degree assault (7 years with 2 suspended - 5 years to
serve).
Our analysis of Pusich's sentence does not end
there, however. Judge Cutler imposed Pusich's two sentences
consecutively; under these circumstances, Alaska law directs
us to focus on the justification for Pusich's composite
sentence rather than on the justification for any individual
sentence she received for a particular offense. Neal v.
State, 628 P.2d 19, 21 n.8 (Alaska 1981); Comegys v. State,
747 P.2d 554, 558-59 (Alaska App. 1987).
Pusich's composite sentence, 25 years'
imprisonment with 7 years suspended, is more severe than any
previously affirmed sentence for vehicular homicide.
Nevertheless, we conclude that the facts of this case
support the sentence.
Pusich's recklessness was egregious. She has a
lengthy history of driving offenses - in particular, alcohol-
related driving offenses. Her long-standing abuse of
alcohol is seemingly intractable. More alarming, Pusich has
repeatedly demonstrated an obstinate insistence on driving
when she is drunk. Not only does Pusich drive while she is
intoxicated, but the record shows that she has a propensity
for driving at high speeds and engaging in maneuvers that
would be extremely reckless even if she were sober.
For these reasons, Pusich's offense would have
been significantly aggravated even if she had killed or
injured only one victim. Instead, Pusich killed three
people and seriously injured a fourth. Under the facts of
this case, applying the "clearly mistaken" standard of
sentence review, we conclude that Pusich's sentence is
within the "range of reasonable sentences which a reviewing
court, after an independent review of the record, will not
modify". State v. Bumpus, 820 P.2d at 305 (quoting McClain
v. State, 519 P.2d 811, 813 (Alaska 1974)).
Our colleague Judge Coats dissents from this
conclusion. In his dissent, Judge Coats discusses Alaska's
prior sentencing decisions involving drunk-driving
homicides. He concludes that Pusich's sentence must be
excessive because (1) lesser sentences were imposed in those
prior cases, and (2) "those cases deal with offenders and
offenses virtually indistinguishable from [Pusich's] case".
It is on this point that Chief Judge Bryner and I
fundamentally disagree with Judge Coats. After Dunlop, it
is no longer possible to maintain that the killing of one
person is "virtually indistinguishable" from the killing of
several people. Alaska law now recognizes that a drunk
driver who kills several people has committed several
separately punishable homicides.
In Sandvik, the supreme court upheld a 12-year
prison sentence for a drunk driver who killed one person.
Pusich's act of killing three people and seriously injuring
a fourth is not "virtually indistinguishable" from Sandvik's
act of killing one person; rather, Pusich's criminal act is
significantly more aggravated.
Only two reported Alaska decisions, Gullard and
Puzewicz, involve drunk drivers who inflicted the same
amount of human carnage as Pusich. The defendant in Gullard
killed four people. He received 10 years to serve.
However, even though the results of Gullard's conduct are
analogous to the results of Pusich's, two factors
distinguish Gullard's case from Pusich's. First, Gullard
did not exhibit Pusich's extreme degree of recklessness.
Second, Gullard's background was considerably more
favorable: Gullard was a teenager with no prior record.
The defendant in Puzewicz killed two people and
injured three others. Like Pusich, Puzewicz was middle-aged
and his driving record was atrocious. Puzewicz thus
presents the closest factual analogy to Pusich's case.
Puzewicz was sentenced to 18 years' imprisonment with 5
years suspended - 13 years to serve. We upheld this
sentence on appeal. However, as we explained before, the
fact that we uphold a sentence on appeal does not mean that
this sentence constitutes the upper limit of sentencing
discretion. Hurn, 872 P.2d at 199-200.
When we compare Puzewicz's 13-year sentence with
the 12-year sentence imposed in Sandvik, it is apparent that
Puzewicz was not intended to set the upper limit on
sentences for multiple drunk-driving homicides. Both the
defendant in Sandvik and the defendant in Puzewicz had
particularly bad driving records, but Sandvik killed only
one person. The supreme court held that it was proper to
sentence Sandvik to serve 12 years (20 years with
8 suspended). Puzewicz killed two people and seriously
injured three others, yet he received only one more year to
serve (and a lesser total sentence). Given these
circumstances, our affirmance of Puzewicz's 13-year sentence
can not be read to mean that we would have overturned any
greater sentence.
We therefore disagree with Judge Coats's assertion
that the sentences upheld in Gullard and Puzewicz constitute
the top of the range of permissible sentences for drunk-
driving homicide. While Pusich's sentence is more severe
than any other sentence previously upheld for a drunk driver
who caused multiple deaths and injuries, her sentence is
supportable under Alaska sentencing law.
The sentencing decision of the superior court is
therefore AFFIRMED.
BRYNER, Chief Judge, concurring.
I join in Judge Mannheimer's opinion but add
several words to address the dissent. Citing the need to
consider this case in relation to other similar offenses,
Williams v. State, 809 P.2d 931, 935 (Alaska App. 1991), the
dissent compares Pusich's sentence to sentences reviewed in
prior drunk-driving homicide sentence appeals. The dissent
asserts that "many of those [prior] cases deal with
offenders and offenses virtually indistinguishable from the
present case." Because no sentence comparable to Pusich's
has ever been upheld in a drunk-driving homicide case, the
dissent concludes Pusich's sentence is excessive.
This reasoning makes sense only if we accept the
dissent's tacit premise that victims are essentially
irrelevant -- that a driver who recklessly kills one
innocent victim is the same as one who kills two or three.
For how else is it possible to conclude, as does the
dissent, that Pusich's case is "virtually indistinguishable"
from most prior reported drunk-driving homicide cases, when
these cases include many single-victim homicides, a handful
of double homicides, but only one instance involving more
than two deaths.
The notion that an offender who kills three
victims should be deemed "virtually indistinguishable" from
an offender who kills one victim is at odds with common
sense. As a matter of Alaska law, however, this notion held
sway for a time in the narrow field of reckless homicide
cases. The supreme court's legal analysis in Thessen v.
State, 508 P.2d 1192 (Alaska 1973), divorced the
consequences of a reckless act from the conduct comprising
the recklessness itself; on that basis, the Thessen court
held that a reckless course of conduct causing multiple
deaths involved only a single criminal act and was
punishable as only one homicide.
As Judge Mannheimer's opinion correctly points
out, when the Alaska Supreme Court decided Pears v. State,
698 P.2d 1198 (Alaska 1985), the law of reckless homicide
was governed by Thessen. Given Thessen, it was legally
accurate -- though perhaps counterintuitive in common sense
terms -- for the supreme court in Pears to observe that
Pears' conduct, which involved a double homicide, was
comparable in seriousness to the conduct in Sandvik v.
State, 564 P.2d 20 (Alaska 1977), which involved but a
single killing.
As Judge Mannheimer further correctly points out,
a year after deciding Pears, the supreme court changed the
equation by deciding State v. Dunlop, 721 P.2d 604 (Alaska
1986). Dunlop overruled Thessen, unequivocally holding
that, in reckless homicide cases, "[t]he identity of [each
separate] victim represents different conduct -- it
represents conduct directed at that victim." Id. at 609.
By remarrying the consequences of a reckless act to the
reckless act itself, Dunlop reestablished the integral link
between these two components of reckless misconduct -- a
link readily accepted in related areas of the law.4 Under
Dunlop, the conduct of a drunk driver who recklessly kills
two victims is inherently more serious than the conduct of a
drunk driver who engages in a similar act of driving but
kills only one victim, since the consequence of the
recklessness -- the number of victims -- is a component part
of the reckless conduct itself.
Given Dunlop, I find astonishing the dissent's
cavalier assertion that Pusich's case is "virtually
indistinguishable" from many of Alaska's prior drunk-driving
homicide cases.5 The distinguishing feature of Pusich's
case lies precisely in the harm that she inflicted: she
killed three innocent victims and seriously injured a
fourth. Killing three people hardly seems "indistin
guishable" from killing one or two; the distinction is
fairly obvious.
The toll from Pusich's criminal misconduct --
three dead, one seriously injured -- is all but
unprecedented in the annals of Alaska drunk-driving homicide
cases; this alone sets her case apart from all others but
one. Moreover, the egregious recklessness of Pusich's
driving -- in both its duration and extent -- rivals that of
any prior Alaska drunk-driving homicide case. Finally,
Pusich's lengthy history of similar driving by itself ranks
her among the very worst offenders. When the harm inflicted
by Pusich is considered in conjunction with the nature and
scope of her recklessness and her extensive background of
similar misconduct, her case becomes truly unique.
Given the totality of the circumstances in this
case, the dissent's effort to invoke uniformity as a basis
for reversing Pusich's sentence is misguided: Pusich's case
is comparable to those of past offenders in only the most
superficial and artificial sense.
COATS, Judge, dissenting.
It is impossible to defend Mrs. Pusich's crime and
difficult not to agree with the severe punishment that the
superior court ordered in this case. However, fundamental
fairness requires this court to insure that Mrs. Pusich's
sentence is consistent with sentences of similar offenders
who have committed similar crimes. This is a basic
requirement of the law governing sentencing. Alaska Statute
12.55.005(1) requires courts, in determining an appropriate
sentence, to consider "the seriousness of the defendant's
present offense in relation to other offenses[.]" In
Williams v. State, 809 P.2d 931 (Alaska App. 1991), we
pointed out that "[p]aragraph (1) of AS 12.55.005 thus
expressly mandates that a court seeking to determine an
appropriate sentence in a given case make its decision by
considering the case before it in relationship to other
cases." Id. at 935.
Unfortunately, the facts of Mrs. Pusich's case are
far from unique. Every informed citizen is aware of the
tragedies caused by those who drink, drive, and kill. The
majority decision does an excellent job of setting out the
facts of the reported cases. Many of those cases deal with
offenders and offenses virtually indistinguishable from the
present case.6 And yet, as the majority opinion recognizes,
Mrs. Pusich's sentence is far more severe than any
previously reported sentence in this jurisdiction. The most
severe sentence that the appellate courts of this state have
approved for this type of offense is eighteen years with
five years suspended for two counts of second degree murder
in Puzewicz v. State, 856 P.2d 1178 (Alaska App. 1983).
In light of this background, Mrs. Pusich's
sentence appears to me to be too severe when I compare it to
sentences for similar offenders who have committed similar
crimes. I accordingly conclude that, under the law as it
presently exists, it is the duty of this court to find that
the sentence imposed in this case is clearly mistaken.
_______________________________
1 Pusich was also charged, by information, with
driving while intoxicated and possession of a small amount
of marijuana. These charges are not at issue in this
sentence appeal.
2 The following cases contain the most severe
sentences for vehicular homicide that have been subjected to
appellate review in Alaska. They are listed in reverse
chronological order.
Puzewicz v. State, 856 P.2d 1178 (Alaska App. 1993):
This court affirmed a sentence of 18 years' imprisonment
with 5 years suspended - 13 years to serve - for two counts
of second-degree murder; the defendant killed two people and
injured three others.
Ratliff v. State, 798 P.2d 1288 (Alaska App. 1990):
This court affirmed a sentence of 13 years' imprisonment
with 3 years suspended - 10 years to serve - for one count
of second-degree murder.
Barney v. State, 786 P.2d 925 (Alaska App. 1990): This
court affirmed a sentence of 14 years' imprisonment with 4
years suspended - 10 years to serve - for one count of
manslaughter and one count of second-degree assault.
Jones v. State, 744 P.2d 410 (Alaska App. 1987): This
court reversed a sentence of 10 years' imprisonment for two
counts of manslaughter and directed that the defendant be
sentenced to no more than 8 years; the defendant killed two
people and injured a third.
State v. Dunlop, 721 P.2d 604 (Alaska 1986): The
supreme court affirmed a sentence of 10 years (two
consecutive 5-year terms) for two counts of manslaughter.
However, from the wording of the decision, it appears that
the defendant attacked the sentence solely on the ground
that his two separate convictions violated the double
jeopardy clause.
Pears v. State, 698 P.2d 1198 (Alaska 1985): The
supreme
court reversed a sentence of 20 years' imprisonment for two
counts of second-degree murder and one count of second-
degree assault.
Rosendahl v. State, 591 P.2d 538 (Alaska 1979): The
supreme court affirmed a sentence of 10 years' imprisonment
for one count of manslaughter.
Sandvik v. State, 564 P.2d 20 (Alaska 1977): The
supreme court affirmed a sentence of 20 years' imprisonment
with 8 years suspended - 12 years to serve - for one count
of manslaughter.
Gullard v. State, 497 P.2d 93 (Alaska 1972): The
supreme court affirmed a sentence of 10 years' imprisonment
for one count of manslaughter; the defendant killed four
people.
3 The supreme court split 3 to 2 over whether to
reverse Pears's sentence. Two members of the majority
declared that Pears should receive no more than 10 years to
serve. The third member of the majority held simply that 20
years was excessive; he declined to specify a lesser
sentence. Pears, 698 P.2d at 1205 n.15. The dissenters
would have affirmed the 20-year sentence. Id. at 1205.
4 . For example, an offender who drives while
intoxicated and recklessly causes an accident that results
in no physical injury may be guilty of nothing more than
DWI. AS 28.35.030. But if the same act of driving resulted
in the death of another motorist, the offender is held
accountable for manslaughter. See AS 11.41.120 (a). The
driving in both situations is identical; they differ only in
the consequences they entail. Based on this difference in
consequences alone, the law recognizes and readily accepts
that the second offender's recklessness is far more serious
than that of the first.
5 . Carrying the dissent's reasoning to its logical
extreme, one might as easily conclude that Pusich's conduct
is "virtually indistinguishable" from the conduct of many
DWI offenders whose recklessness creates an extreme risk but
who fortuitously avoid causing death or injury; one might
thus reason that Pusich deserves a sentence comparable to
the typical sentence for an aggravated non-injury DWI.
6 Many of these cases involved multiple victims and
multiple charges. See, e.g., Gullard v. State, 497 P.2d 93
(Alaska 1972); (defendant plead nolo contendere to one
count of manslaughter where his drinking and driving
recklessly had resulted in the deaths of four people); Pears
v. State, 698 P.2d 1198 (Alaska 1985) (defendant was
convicted of two counts of second degree murder and
one count of second degree assault); Puzewicz v. State, 856
P.2d 1178 (Alaska App. 1993) (defendant was convicted of two
counts of second degree murder where defendant had killed
two people and injured three others); Jones v. State, 744
P.2d 410 (Alaska App. 1987) (defendant was convicted of two
counts of manslaughter where his drunk driving killed two
people and permanently injured a third).
