Brown v. State , 1999 Alas. App. LEXIS 6 ( 1999 )

STEWART, Judge,

dissenting in part.

I concur with majority’s decision to remand the case to Judge Reese for re-sentencing because, on this record, I agree with the conclusion of the majority that Brown’s sentence is clearly mistaken.¹ Judge Reese’s findings at sentencing and his supplemental findings on remand do not meet our requirements for a substantial departure from the Page benchmark. Having gone that far, my judgment is we need go no farther.

A comparison of Brown’s conduct with the conduct of defendants in other reported cases leads to the conclusion that Brown’s crime appears within the mainstream of second-degree murders as defined by AS 11.41.110(a)(2). I agree with that part of the majority’s analysis. Nevertheless, an individualized sentencing process must also examine the defendant. Perhaps the facts of a defendant’s crime may not justify a departure from Page, but the inability to reform a dangerous defendant might.

In some cases discussed by the majority where the defendant’s sentence for second-degree murder substantially exceeded the Page guideline, we noted the gratuitous and inexplicable nature of the homicides.² In our review of the sentence in another irrational homicide, we also reasoned that a defendant’s unfathomable conduct can engender “grave doubt as to his capacity for reform and provides strong reason to think that he will pose a serious, continuing threat to society.”³

Yet it does not necessarily follow that conduct, such as Brown’s, that is understandable, though no less reprehensible than conduct that is baffling, means that Brown is less of a threat to society and more likely to reform. I think the more important inquiry, in any case, must be whether the defendant will be a continuing threat to society balanced against the defendant’s capacity for reform. Because I do not think that our cases require a deranged or depraved homicide to exceed the Page benchmark, I think that a thorough analysis at sentencing that shows that the defendant will continue as a threat to society and that the defendant has little capacity for reform can justify an upward departure from the Page benchmark.

Therefore, I dissent from the mandate that Judge Reese conduct Brown’s re-sentencing with a thirty-year ceiling. While I agree that Brown’s 55-year term is clearly mistaken on the present record, I also conclude that we should not limit the maximum potential sentence to the Page benchmark.

1 . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

2 . See Faulkenberry v. State, 649 P.2d 951 (Alaska App.1982); Ridgely v. State, 739 P.2d 1299 (Alaska App.1987).

3 . Boziel v. State, 864 P.2d 553, 557 (Alaska App.1993).