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FOXGLOVE v. STATE1/3/1997
r an aggravated sentence. See State v. Krieger, 731 P.2d 592, 596 (Alaska App. 1987) ("a person who commits second-degree murder under circumstances approximating first-degree murder may receive an aggravated sentence" above the 20- to 30-year bench-mark established in Page v. State, 657 P.2d 850, 855 (Alaska App. 1983)).
Foxglove points out that he killed only one person, while the defendants in Pears, Pusich, and Puzewicz killed two or three victims. However, even though Foxglove killed only one person at the bonfire, he inflicted serious, long-term injuries on four others. Although Judge Jeffery decided to give Foxglove concurrent prison terms for these four first-degree assaults (i.e., he decided not to increase Foxglove's time in prison on account of these four assaults), Judge Jeffery explicitly stated that he reached this decision only because Foxglove's composite term of 19 years to serve already adequately took into account these other consequences of Foxglove's actions.
Further, Foxglove was being sentenced for two separate criminal episodes: his act of hitting the twelve-year-old boy, and his later act of ramming the crowd of people at the bonfire. These incidents occurred approximately one-half hour apart. For the manslaughter and the four first-degree assaults at the bonfire, Foxglove received a total of 14 years to serve. Because Foxglove's earlier assault on the boy was a separate episode, Judge Jeffery concluded that Foxglove should receive a consecutive sentence (the presumptive 5-year term) for that offense.
When a defendant is sentenced for several crimes at once, we "focus on the justification for [the defendant's] composite sentence rather than on the justification for any individual sentence [the defendant] received for a particular offense". Pusich, 907 P.2d at 39 (citing Neal v. State, 628 P.2d 19, 21 n. 8 (Alaska 1981)); Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987). Foxglove argues that his earlier act of injuring the twelve-year-old boy should be treated, for sentencing purposes, as simply another injury resulting from his drunken driving on the morning of January 1, 1993.
Foxglove concedes that his commission of two separate assaultive acts "is certainly relevant". But he argues that the earlier incident is significant only because it gave Foxglove "reason to know that his conduct was endangering the safety of others". Viewed in this way, Foxglove contends, his act of striking and injuring the boy was merely the physical equivalent of the verbal warnings given to the defendants in Pears, Pusich, and Puzewicz.
When a person ignores a warning that he is too drunk to drive, he may demonstrate foolishness and recklessness, and he may be guilty of driving while intoxicated. But when that person recklessly strikes and seriously injures another human being, he commits first-degree assault. Foxglove essentially argues that, if such a driver decides to leave his injured victim behind and continue to drive drunk, then this first assault should merge for sentencing purposes with the punishment the driver receives for later killing or injuring someone else. We reject this argument. Rather, we agree with Judge Jeffery that, because Foxglove was guilty of two separate assaultive episodes, his case is materially different from those cases in which vehicular homicide defendants were sentenced for killing and/or injuring several people in one incident.
We conclude that Foxglove's sentence is not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974). Accordingly, the sentencing decision of the superior court is AFFIRMED.
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