Faulkner v. State

• Decision Date: 14 October 1968
• Docket Number: No. 885,885
• Citation: 445 P.2d 815
• Parties: 5 UCC Rep.Serv. 1091 Jack P. FAULKNER, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 815

445 P.2d 815

5 UCC Rep.Serv. 1091

Jack P. FAULKNER, Appellant, v. STATE of Alaska, Appellee.

No. 885.

Supreme Court of Alaska.

Oct. 14, 1968.

Warren W. Matthews, Jr., Burr, Boney & Pease, Anchorage, for appellant.

Edgar Paul Boyko, Atty. Gen., Juneau, Douglas B. Baily, Dist. Atty., Mark C. Rowland, Asst. Dist. Atty., Anchorage, for appellee.

OPINION

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

Appellant was indicted on seven counts of drawing checks with insufficient funds with intent to defraud in violation of AS 11.20.230, ¹ and one count of issuing a check without funds or credit in violation of AS 11.20.210. ² Appellant entered pleas of guilty to all eight counts. The superior court sentenced him to five years imprisonment on each of the seven counts involving a violation of AS 11.20.230 and one year on the count involving a violation of AS 11.20.210. The sentences were ordered to run consecutively-for an aggregate sentence of 36 years. The court also recommended that the parole board not consider appellant for parole until he had served at least five years of his sentence.

Appellant contends on this appeal that the sentence was excessive and constituted cruel and unusual punishment, that the superior court erred in relying on a Youth & Adult Authority pre-sentence report which contained material misrepresentations, and that the court erred in denying appellant's motion in arrest of judgment and to set aside judgment in that three counts of the indictment failed to state a crime.

In Bear v. State ³ we held that we do not have the authority to review and revise a criminal sentence for abuse of discretion. That case disposes of appellant's contention that under our general appellate jurisdiction we have the authority to modify a sentence on appeal for an abuse of discretion of the sentencing court.

Appellant also contends, however, that the sentence is so excessive in relation to the crimes committed that it represents the infliction of cruel and unusual punishment contrary to the prohibitions contained in the federal and state constitutions. ⁴ We did not rule upon this point in the Bear case. We do so now.

There is some authority for the proposition that it is possible for a sentence within statutory limits to be so disproportionate to the offense committed as to constitute cruel and unusual punishment. ⁵ However, a majority of the jurisdictions, federal and state, hold the opposite. ⁶ The Supreme Court of Connecticut, for example, has said:

When the objection is to the sentence and not to the statute under which the sentence was imposed, the sentence is not cruel or unusual if it is in conformity with the limit fixed by statute. When the statute does not violate the constitution, any punishment which conforms to it cannot be adjudged excessive since it is within the power of the legislature and not the judiciary to determine the extent of the punishment which may be imposed on those convicted of crime. ⁷

And the Florida Court of Appeals has put the matter this way:

The rationale of this rule is that * * * if the statute does not violate the Constitution, then any punishment set in conformity to it cannot be adjudged excessive for the reason that it is not within judicial but legislative power, controlled only by constitutional provisions, to declare what punishment may be assessed against those convicted of crime. ⁸

I have no quarrel with the proposition that it is within the power of the legislature and not the judiciary to determine what punishment may be assessed against those convicted of crime. But such a power is subject to constitutional limitations, and it is this court's function to determine whether such limitations have been exceeded. ⁹ I would adopt what appears to be the minority view that the bare fact that a sentence is within the maximum prescribed by the legislature does not prevent it from violating the constitutional ban against cruel and unusual punishment. ¹⁰ I recognize the fact that ordinarily a sentence with statutory limits should not be disturbed. But I also believe that it is conceivable that in extraordinary circumstances a sentence, although within the limits prescribed by law, may be so 'disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice,' ¹¹ and thus would amount to an unconstitutional cruel and unusual punishment.

That, I believe, is the situation here. It is a precept of justice that punishment for crime should be graduated in proportion to the offense. ¹² I believe that that precept has not been followed in this case. Appellant wrote eight bad checks totalling $1,384.35. The largest check written and the largest monetary loss suffered by any one person was $375. There is here what in essence amounts to a single spree of passing bad checks which, according to the indictment, too place in a single day. A sentence of 36 years for this activity is in my opinion not proportionate to the offense. The offense is not of sufficient gravity to justify imposing what amounts to a life sentence on appellant. ¹³ I am not unaware of appellant's criminal record. ¹⁴ But I believe that even with appellant's history of criminal activity a sentence of such severity is not justified. I conclude that within the meaning of our statement in Green v. State ¹⁵ that the punishment inflicted in this case is so disproportionate to the offenses committed as to be completely arbitrary and shocking to the sense of justice and thus amounts to cruel and unusual punishment prohibited by the federal and state constitutions. The sentences of the court below should be vacated and the case remanded for resentencing.

The Chief Justice's view that the sentence imposed does not constitute cruel and unusual punishment is based mainly on the assumption that at some undesignated time, perhaps in less than one year, appellant will become eligible for and will be released on parole. This is pure assumption and nothing else. It can just as properly be assumed that he will not be paroled. In fact the latter assumption has more basis in probability than the one made in the dissent. Appellant's 'bad' record or proclivity for crime, which the dissent relies upon to justify the imposition of a 36 year sentence, is the very factor that might well convince the parole board that appellant is a bad parole risk and should not be released until he has served his entire sentence.

The dissent states that 'The original sentence imposed by the judge was, in effect, a sentence of 0-36 years.' This statement implies that Alaska operates under a system of indeterminate sentencing, which it does not. The sentence imposed was 36 years, and not something less than that. As I have pointed out, whether the time that appellant must actually serve will be 36 years or something less, depending on action by the parole board, is something that cannot be determined by the sentencing court or by this court. The fact that appellant may have to serve the whole 36 year sentence causes the sentence imposed to violate the constitutional ban against cruel and unusual punishment.

Another aspect of the sentence requires our consideration. Judgment was entered and sentence imposed on May 11, 1967. Under AS 33.15.180 ¹⁶ appellant would have been eligible for parole at any time thereafter, in the discretion of the board of parole. However, on June 29, 1967, the court held a hearing on a motion for reduction of sentence, at the conclusion of which it amended the judgment by providing that the board of parole should not consider parole until appellant 'has served at least 5 years of his sentence.'

Under AS 33.15.230(a)(1) the sentencing judge may have placed such a limitation on appellant's eligibility for parole had he done so at the time judgment was entered. ¹⁷ He was not permitted to do so after that time. The effect of the amendment to the judgment was to increase the severity of appellant's sentence. This may not be done under Criminal Rule 35(a) ¹⁸ because the rule permits only the reduction, and not an increase of sentence. Furthermore, when judgment was entered on May 11, 1967, and appellant then started service of his sentence, he was in jeopardy in the constitutional sense. Thereafter, 'the prohibition of the Fifth Amendment against double jeopardy prevented his being recalled for vacation of the legal sentence and the administration of a more severe one.' ¹⁹ The amended sentence was therefore illegal. Upon remand the provision that the board of parole should not consider parole until appellant had served at least 5 years of his sentence should be stricken from the judgment.

In a pre-sentence report filed by the Youth & Adult Authority's probation officer it was stated that two unnamed persons had indicated that in their opinion appellant 'was going through the motions of attempting to treat himself for an alleged alcoholic program, in an effort to impress the court.' In addition, with respect to the checks which were the subject of the indictments in this case, the report stated: 'In addition to these checks, totalling some $3,000, the defendant wrote an unknown number of bad checks in Washington, Oregon and Idaho during his unlawful flight to avoid prosecution here.' Appellant contends that these statements were material misrepresentations of fact and that the judge erred in relying upon them in deciding what sentence to impose.

We pointed out in Thompson v. State ²⁰ that it is the aim of a sentencing court to acquire a thorough acquaintance with the character and history of the man before it, and that it was essential to the selection of an appropriate sentence for the judge to have possession of the fullest information possible concerning a defendant's life and characteristics. Of necessity much of the information gathered by the probation officer and placed in the pre-sentence report will be hearsay and not verified by...