Pusich v. State

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] eases deal with offenders and offenses virtually indistinguishable from the present ease.” Because no sentence comparable to Pusich’s has ever been upheld in a drunk-driving homicide case, the dissent concludes Pusieh’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 counter-intuitive in common sense terms — tor 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 eases. 5 *42 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 “indistinguishable” from killing one or two; the distinction is fairly obvious.

The toll from Pusieh’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 ease apart from all others but one. Moreover, the egregious recklessness of Pu-sieh’s driving — in both its duration and extent — rivals that of any prior Alaska drunk-driving homicide case. Finally, Pusieh’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.

. 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.

. Carrying the dissent’s reasoning to its logical extreme, one might as easily conclude that Pu-sich'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 sen *42 tence comparable to the typical sentence for an aggravated non-injury DWI.