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PUSICH v. STATE11/24/1995
urt 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. 19
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