The Jacksonville man who killed a firefighter and maimed two other first responders with his van at a 2012 roadside accident is appealing his 70-year sentence.
Bryce Allen, 50, submitted his case Wednesday before the Arkansas Court of Appeals, asking the appellate court to void his 70-year prison sentence for second-degree murder and two counts of criminal attempt to commit second-degree murder.
Allen argues that the Pulaski County circuit judge presiding over his January 2014 conviction abused his discretion by not giving jurors instructions to allow them to consider a lesser charge in the two nonfatal criminal convictions.
According to Allen's attorneys, Judge Barry Sims should have instructed jurors to consider a lesser charge of attempted "reckless" manslaughter, which Sims declined to do after much discussion with attorneys during Allen's trial.
State attorneys argued that Sims ruled appropriately, saying that a crime like manslaughter is not compatible with an "attempt" prefix because it is a result-oriented crime.
Manslaughter is a Class C felony, punishable by up to 10 years in prison. Criminal attempt to commit second-degree murder is a Class A felony, punishable by up to 30 years in prison.
The 70-year sentence was the maximum allowable under those charges.
Allen's arrest happened after his mother crashed her car late at night on Arkansas 161 in Jacksonville in March 2012.
Allen's mother ran her vehicle off the road, and police and firefighters responded, as did Allen, who arrived after getting a call from his mother that she'd crashed her car.
Instead of stopping on the side of the road, Allen intentionally accelerated toward first responders working the scene, striking three of them and killing one, Jacksonville Fire Department Capt. Donald Jones.
Firefighter Jason Bowmaster and Jacksonville police officer Daniel DiMatteo were critically injured.
DiMatteo described the event in court: "As the vehicle struck me I went up on the hood. I remember crossing arms and bracing. I can liken that to the hardest hit I've ever had in football.
"As I hit the windshield, out of the corner of my eye I saw [Jones] be struck. Then rolled off and landed on the ground with just a thud that cleared my chest. I'd never really known terror until that moment. Nothing prepares you for that," DiMatteo testified.
Allen was found to be mentally ill but competent for trial.
Although prosecutors sought charges of first-degree murder and criminal attempt to commit first-degree murder, the jury found Allen guilty of those charges in the second-degree.
But Allen's attorneys said that jurors should have been able to consider a lesser charge and less severe sentence.
The attorney argued that, had the other two victims died, the circumstances would have allowed for a consideration of manslaughter. Since they lived, an attempt to commit reckless manslaughter should have been considered, they said.
They asked the state's appeals court to reverse the sentence and send it back to lower court for resentencing.
At trial, and in recent arguments, state attorneys rebuked Allen's arguments, saying that one "cannot intend to commit reckless conduct."
"The crime of reckless manslaughter requires that the result of death occur," they argued. "Where a result is required for the commission of a crime, the criminal attempt statute requires that the substantial step taken by the defendant be initiated with the intent or knowledge to cause that result -- here, death of the victim."
Since reckless manslaughter does not require intent, or mens rea, to kill, it's impossible to commit reckless manslaughter, prosecutors said.
It is unknown how soon the Court of Appeals will render a verdict.
Allen remains in the Cummins Unit prison in Grady. He is not eligible for parole until late 2030.
Metro on 05/21/2015