Jones v. State

744 P.2d 410, 1987 Alas. App. LEXIS 402
CourtCourt of Appeals of Alaska
DecidedSeptember 25, 1987
DocketA-1813
StatusPublished
Cited by35 cases

This text of 744 P.2d 410 (Jones v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. State, 744 P.2d 410, 1987 Alas. App. LEXIS 402 (Ala. Ct. App. 1987).

Opinions

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 [412]*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,

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Bluebook (online)
744 P.2d 410, 1987 Alas. App. LEXIS 402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-state-alaskactapp-1987.