Bear v. State, 813

CourtSupreme Court of Alaska (US)
Citation439 P.2d 432
Docket NumberNo. 813,813
PartiesWilliam Clark BEAR, Appellant, v. STATE of Alaska, Appellee.
Decision Date05 April 1968


NESBETT, Chief Justice.

The question is whether this court may review a criminal sentence for abuse of discretion.

Appellant was indicted for the first degree murder of his wife and found guilty of involuntary manslaughter by a jury. The trial court sentenced him to twelve years imprisonment and recommended that he not be considered for parole until he had served a minimum of one-third of the sentence. Appellant's motion for reduction of sentence was denied.

Appellant does not question the validity of his conviction nor the fact that the sentence was within the maximum established by law for the offense. He requests only that 'This court * * * vacate the sentence imposed and remand the matter back to a different Superior Court Judge for resentencing,' or modify the sentence.

In support of his request appellant urges that a statement made by the court at the time it denied the motion to reduce sentence clearly demonstrates that it disregarded the jury's finding that the killing was unintentional and viewed it instead as an intentional killing and sentenced accordingly. Appellant quotes and emphasizes the statement of the trial judge, who is reported to have said:

I considered this a very vicious case; the jury found manslaughter * * *. They found him guilty of manslaughter and certainly the evidence indicated that he had this pistol; he fired into the floor one time and during the course of punching his wife in the ribs with the pistol it went off; and I think it was a very vicious type of thing.

Appellant argues that the court clearly displayed its prejudice when it referred to what the jury had found to be an involuntary act of manslaughter as a vicious killing. According to appellant, the trial court's prejudice was caused by incompetent hearsay statements made by the prosecutor at the time of sentencing to the effect that appellant had threatened to kill two of the State's witnesses after trial.

Appellee contends that the court obviously did not consider the prosecutor's statement that appellant had threatened two witnesses. Appellant denied making the statement, according to appellee, whereupon the prosecutor offered to support his statement with affidavits. The court is then reported to have stated, when it denied the prosecutor's offer, that it had heard all that it wished to on that point. According to appellee, the above facts clearly support the inference that the court did not consider the statement, otherwise it would have accepted the prosecutor's offer to prove the threats and would have referred to them when passing sentence.

Appellee argues that the trial court's characterization of the offense as 'vicious' and its statement that it could not 'give the man a license to kill his wife' were comments appropriate to the nature of the offense.

Appellee points out that most of the dictionary definitions of the adjective 'vicious' such as, 'violative of moral rectitude', 'immorality or depravity' and 'corrupt or dissolute in conduct', do appropriately describe the unintentional homicide under the particular facts of this case. The trial judge concluded his statement by saying:

I don't think we could give a man a license to kill his wife because he has children and he has to look after the children. I don't go along with that argument.

According to appellee, this is nothing more than an explanation by the court that it could not excuse appellant's conduct merely because of his responsibility to his children, and in brief, there is no support for the argument of appellant that the judge considered the homicide other than involuntary manslaughter.

We shall defer consideration of appellant's claim that the facts related amounted to an abuse of discretion and examine first the question of whether this court has jurisdiction to review a legal criminal sentence.

The majority of federal jurisdictions follow the rule that an appellate court has no authority to act on a sentence which is within the limits allowed by a statute, because such a sentence is not cruel and unusual punishment and any relief therefrom must be obtained by act of Congress. 1 The same rule appears to be followed in a majority of the state jurisdictions on the ground that it would be improper to interfere, or to seem to interfere, with the executive branch's power to pardon and commute sentences. 2

According to Professor B. J. George, the rule of the state courts is a carry-over from the common law where, in feudal times, the chief variations in punishments lay more in the methods by which an offender was to be executed than in any other respect; the role of the judiciary being to determine the question of guilt and to enter judgment. When this had been done the penalties of the law were exacted as a matter of course, unless royal pardon was forthcoming. Professor George suggests that immunity of criminal sentences from review is also explainable by the fact that under the common law system, appeals are based on questions of law exclusively whereas under the civil law, appeals may be based on questions of law or fact. 3

States which review sentences in criminal cases, such as Arizona, California, New York, Nebraska, Iowa and Hawaii, generally do so under statutory authority. 4 A few states have inferred the power to review and reduce sentences from statutes which permit appellate courts to 'reverse or modify the judgment' appealed from, 5 but none have found in this language the power to increase a sentence.

In United States v. Rosenberg 6 the United States Court of Appeals for the Second Circuit commented as follows:

Some * * * state courts find * * * authority in statutes conferring power to 'reverse, modify or affirm' judgments on appeal. An identical power-to 'affirm, modify * * * or reverse'-is given to federal courts of appeal and to the Supreme Court by 28 U.S.C.A. § 2106. * * * No decision by the Supreme Court or any federal court of appeals seems to have cited or considered this statute in passing on the question of the power to reduce a sentence when a conviction is affirmed.

This court is of the opinion that it does not have jurisdiction to review and remand or to review and revise a criminal sentence for abuse of discretion.

There is no provision of the constitution or of the statutes of Alaska specifically giving this court the power to 'reverse, affirm or modify the judgment'. Article IV, section 2 of the Alaska Constitution states that, 'The supreme court shall be the highest court of the State, with final appellate jurisdiction.' AS 22.05.010 states in part that:

The supreme court has final appellate jurisdiction in all actions and proceedings. The supreme court may issue injunctions * * * and all other writs necessary or proper to the complete exercise of its jurisdiction.

and AS 22.05.020 states in part:

The supreme court is vested with all power and authority necessary to carry into complete execution all its judgments, decrees and determinations in all matters within its jurisdiction, according to the constitution, the laws of the state, and the common law. 7

Under the above powers this court has regularly reversed and remanded judgments. On occasion it has modified civil judgments, but with a single known exception it has not modified a criminal judgment. 8 Our decision is influenced to some extent by the history of the doctrine of immunity of review of criminal sentences and by the absence of specific constitutional or statutory authority in this area.

It is true that this court has exercised appellate authority to review the many aspects of criminal matters mentioned in our colleague's dissenting opinion. For the most part such review is confined to questions of law or mixed questions of law and fact and is therefore within the traditionally recognized sphere of appellate court jurisdiction. The review of an otherwise legal criminal sentence, which is within the maximum established by the legislature, is not a question of law and is not within the traditional sphere of appellate court jurisdiction.

As is pointed out in the dissent, approximately fifteen states now undertake to review criminal sentences. In thirteen of these states the authority to review criminal sentences stems from specific statutory provisions.

The legislature of Alaska has established by statute the maximum and minimum sentences for each offense. The determination of the exact period of time that a convicted defendant should serve is basically a sociological problem to be resolved by a careful weighing of the principle of reformation and the need for protecting the public. 9 The trial judge, by reason of his personal observation of the defendant and the complete personal history report prepared for him by the probation officer, is expected to be prepared to impose sentence.

The trial judge's sentence is subject, however, to the following overriding statutory provisions:

(1) that the State Board of Parole may, if its investigation and the defendant's rehabilitation prognosis appears to warrant, release the defendant on parole after only a portion of the sentence has been served; 10

(2) that by statute the defendant is entitled to three to fifteen days per month reduction of sentence for good behavior and prison camp activity, 11 and

(3) that the defendant may be granted a commutation of sentence or a pardon by the governor. 12

The chairman of the State Board of Parole is required by statute to be an official in the Department of Health and Welfare with training in the field of probation and parole. 13 This Board, through its continued reports on the prisoner's conduct, psychological...

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    ...Mr. Dimmick.2 458 P.2d 340, 345 (Alaska 1969).3 Watson v. State, 413 P.2d 22, 26 (Alaska 1966); Bear v. State, 439 P.2d 432, 439-440 (Alaska 1968) (dissenting opinion) (Rabinowitz, J.).4 Miranda v. Arizona, 384 U.S. 436, 458, 86 S.Ct. 1602, 1619, 16 L.Ed.2d 694, 714 (1966).5 See also Justic......
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