In Carey, the Supreme Court expressed its view as to how these factors should be employed in vehicular homicide cases. There, the sentencing judge imposed consecutive seven-year prison terms for two vehicular homicide convictions; we reversed, viewing the imposition of consecutive terms to be an abuse of discretion. The Carey majority, in reversing our judgment, started by emphasizing “the Yarbough guidelines are just that – guidelines.” They are, according to the Court, “intended to promote uniformity while retaining a fair degree of discretion in the sentencing courts.”
Consequently, the Court held that the five “facts relating to the crimes” within Yarbough‘s third guideline “should be applied qualitatively, not quantitatively,” and determined that consecutive terms may be imposed even when most of the guidelines favor concurrent terms. In this context, the Court held that “ordinarily” consecutive terms should be imposed and found the imposition of consecutive terms in light of the circumstances of the case before it to be permissible. Rather than viewing the Court’s expression of what should “ordinarily” be imposed as always applying in multiple-victim vehicular homicide cases, a sentencing judge should view each case in light of its specifics and in comparison with the specifics of Carey.
True, like Carey, defendant was driving while intoxicated. But there are significant differences. Carey caused two deaths and serious injuries to two others; defendant caused one death and serious injuries to two others as well as less serious injuries to another. Carey was driving at an excessive speed, between sixty-five and eighty-one miles per hour in a twenty-five miles per hour zone. Defendant was not speeding; instead, the accident was caused by defendant’s failure to make proper observations. Stopping there, one would likely conclude that Carey earned greater prison time than defendant. The damage caused by Carey was greater, and his excessive speeding for an extended period of time revealed a conscious disregard for societal norms and an enhancement of the danger generated by his intoxication. Defendant here was not speeding, and his vehicle remained within the proper lane of travel; other than driving while intoxicated, like Carey, defendant’s only apparent departure from the rules of the road was the averting of his eyes from the roadway for a long enough period of time to be unaware the Honda had stopped in his path to make a turn.
Cases like this highlight individual judges’ subjective attitudes notwithstanding the fact that parity is supposed to be the paramount goal in sentencing. I handled the appellate remand of a case involving assault that caused serious bodily injury to two girls. The sentencing judge imposed consecutive seven-year terms on a defendant with no prior record, even though he was charged with unintentional (reckless) conduct. The defendant had the misfortune of drawing a sentencing judge and appellate panel with reputations for being very tough on defendants. The trial court relied solely on the “multiple victims” factor and the appellate panel upheld his sentencing decision after two rounds of appeals.