In reversing our determination that the sentencing judge abused his discretion in imposing consecutive terms, the Carey majority left in place two seven-year consecutive terms – a fourteen-year aggregate term. Here, the State urges our affirmance of three consecutive terms – consisting of twenty, seven, and five-year terms – an aggregate thirty-two-year prison term. How can it be said – if, as the Carey majority held, the Yarbough factors were intended to promote uniformity in sentencing, that uniformity in sentencing has been achieved here? Both Carey and defendant victimized four individuals, but Carey received only two consecutive terms, and defendant received three. And defendant received an aggregate term more than twice as long as Carey’s and significantly more than most, in fact nearly all, the sentences imposed in similar or far more tragic circumstances than here, as revealed in our reported and unreported appellate decisions since Carey. Indeed, although defendant’s conviction of first-degree aggravated manslaughter was cause for a lengthier prison term on the most serious offense than received by Carey – whose most serious offenses were the two counts of second-degree vehicular homicide for which he was convicted – we do not view that as a persuasive basis for imposing three consecutive terms, when Carey only received two, despite the fact that both caused death or injuries to a total of four innocent victims.
Carey did not fix how Yarbough must apply in all vehicular homicide cases. Every case requires its own Yarbough analysis. Here, there is no question but that three of the five of Yarbough‘s facts-relating-to-the-crime third factor favor the imposition of concurrent terms: the crimes were not predominantly independent of each other; the crimes involved a single act; and the crimes involved a single act of aberrant behavior. There can be no dispute that at least one factor – multiple victims – favored consecutive terms. The fifth – the convictions for which the sentences are to be imposed are numerous – was found in similar circumstances by the Carey majority to also favor consecutive terms, even though it may fairly be argued that the multiple convictions arise from the fact that there were multiple victims; in many instances – and this is one – this fifth factor is simply another way of recognizing there were multiple victims. In short, those two factors are often double-counted, as they were here.
Here, Judge Fisher provides an excellent point that can be argued in any case with multiple victims. The point is that double counting “multiple victims” and “numerous convictions” is illegal in imposing consecutive sentences.
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