Huff v. State, 3201
| Decision Date | 16 September 1977 |
| Docket Number | No. 3201,3201 |
| Parties | Darryl HUFF, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Linda L. Walton, Hoppner & Hedland, Fairbanks, for appellant.
Richard J. Ray, Asst. Dist. Atty., and Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, C. J., RABINOWITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.
This is a sentence appeal.
Darryl Huff, at twenty-four years of age, is a heroin addict. He was indicted on four counts of selling the narcotic drug heroin, in violation of AS 17.10.010. 1 Under the terms of a negotiated plea, arrived at through a process known as "plea bargaining" or "charge bargaining," 2 the state dismissed two counts of the indictment, in addition to a probation revocation petition arising from Huff's prior conviction of another crime. 3 In exchange, Huff entered a plea of nolo contendere to two counts of the indictment.
Huff was sentenced to four years imprisonment on each of the two counts, with the sentences to run consecutively. In effect, this amounted to an eight-year sentence. However, the judge suspended the sentence on the condition that Huff participate in and complete a two-year drug rehabilitation program at the Family House in Anchorage. A representative of the Family House and a heroin addict who had completed the program testified that they had interviewed Huff and found him to be willing to participate in the program and that he was a suitable candidate for treatment. At the conclusion of the two-year treatment at the Family House, Huff was to be on probation for the balance of the term of the sentence imposed.
After staying two weeks at the Family House, Huff filed a motion to modify his sentence. At a hearing in the superior court, he told the judge that he had left the Family House because the rules of that institution forbade him to practice his religion, which included reading the Bible. He said that his inability to practice his religion affected adversely his ability to respond to the drug rehabilitation treatment. The judge then sentenced Huff to eight years imprisonment on each of the two counts of the indictment, with the sentences to run concurrently. Huff has appealed, contending that the sentences are excessive.
Before passing on the assertion that the sentence was excessive, we are required under the doctrine of plain error to notice a point not argued in appellant's brief, i.e., that the modification of the sentence from two consecutive four-year terms of imprisonment to two concurrent terms of eight years each is illegal. The reason is that the modification or resentencing was in effect an increase of the sentence, and this is barred by the principle of double jeopardy under our decision in Sonnier v. State, 483 P.2d 1003 (Alaska 1971). Admittedly, at first glance, it does appear that the sentences were identical; for the total length of time of imprisonment is eight years whether two four-year consecutive sentences or two eight-year concurrent sentences are imposed. But a simple example of what could possibly occur after Huff began service of his sentence would illustrate that the second or modified sentence is more severe. It is within the realm of possibility that Huff could have attacked one of the two four-year consecutive sentences on one count of the indictment as being illegal for any of the reasons set forth in Criminal Rule 35(b), dealing with applications for post-conviction relief. 4 If he were successful in this effort, he would have remaining four years of imprisonment to serve. On the other hand, if he successfully attacked the sentence on the same count of the indictment after he was given two eight-year concurrent sentences, he would have eight years of imprisonment left to serve, instead of four. Clearly, this means that the second or modified sentence was more severe, or was an "increase" in the original sentence within the meaning of the double jeopardy provision as discussed in Sonnier. Cf. Whitton v. State, 479 P.2d 302, 314 (Alaska 1970); Gray v. State, 463 P.2d 897, 911 (Alaska 1970).
Turning now to the contention that the sentence of eight years was excessive, the facts show that on two separate occasions Huff sold to police informants a quarter ounce each of heroin for approximately $700 for each sale. But he made no profit. Being an addict himself, he would take the money given to him by the informants and give it to the seller of the narcotics. In return he would obtain some heroin, not only for the informants to bring back to the police, but also for himself to "feed" a $200-$300 a day "habit." 5
A determination of what degree of punishment should be given for a drug offense depends on the gravity of the offense. Large scale operations where sales of drugs are made in substantial amounts would call for more severe punishment than sales of small or moderate amounts of drugs. The latter, in turn, is generally punishable by greater penalties than the instances where one possesses narcotics for his own use and without intent to sell. 6
In Waters v. State, 483 P.2d 199, 201 (Alaska 1971), we specified four groups of drug offenders whose crimes were set forth in descending order of seriousness. There we stated the groups to be:
1. Smuggling or sale of large quantities or possession of large quantities for sale.
2. Smuggling or sale of small quantities or possession of small quantities for sale.
3. Possession of narcotics without intent to sell.
4. Marijuana offenses.
The state argues that Huff does not fit into category two. That may be true because the sales he made one quarter ounce on each of two occasions were not of "small quantities." Nor does he fit into the first category because these transactions did not involve sale of "large quantities." Probably, he falls somewhere between categories one and two. But he was not what Justice Rabinowitz referred to as a "titan" of the narcotics industry. 7 The sales of heroin he made were for the sole purpose of being paid in kind by the dealer above him in order that he could continue to satisfy his addiction to heroin by getting the drug for his own use. He was what he described as the "middleman" and not the non-addictive seller of narcotics in substantial quantities who makes a considerable profit out of this illegal enterprise.
One addicted to the drug heroin is afflicted with an illness as much as is one addicted to the drug alcohol. 8 In 1925 the United States Supreme Court recognized that persons addicted to narcotics "are diseased and proper subjects for (medical) treatment." 9 Then in 1962 that court, in the case of Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), held it to be cruel and unusual punishment to punish an individual because of his or her "status" as an addict of narcotic drugs. There the court said:
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. . . . (I)n light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
We cannot but consider the statute before us as of the same category. In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold. 10
A discussion of the problems inherent in treating drug addiction as a crime and the advantages gained by treating it as a disease is contained in an article: "The Eyes of the Beholder: The Drug Addict as Criminal, Patient, or Victim." 11 In this discussion the authors noted, among other things, that:
The American Bar Association's Special Committee on Crime Prevention and Control, in its report New Perspectives on Urban Crime not only reached the conclusion that the problem of urban street crime is primarily the problem of heroin addiction but recommended that the 'federal, state and local governments . . . discard their current law enforcement oriented strategy toward addiction control and adopt a policy which places primary emphasis on the treatment of addiction.' They have recommended pretrial diversion of addicts. 12
It is not generally our function to encroach upon the legislature's prerogative of declaring what is criminal in nature and what is not. The legislative branch has made the sale and use of narcotic drugs a crime one with severe penalties. 13 In a case like this, our only prerogative is to determine under the circumstances of the case whether an eight-year sentence for two sales of one-quarter ounce each of heroin is excessive.
When the two consecutive four-year sentences were first imposed, the judge was attempting to fashion a severe enough sentence so as to give Huff a real incentive to complete the two-year drug rehabilitation program at Family House. This appears to us to have been a sound approach and one which we cannot say was a mistake. But when the original sentence was modified to two concurrent eight-year sentences, the judge did not state his reasons for imposing this punishment, as he is required to do under Appellate Rule 21(f) (2). The only...
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Cruel and Unusual Non-Capital Punishments
...1045–46 (Alaska 1978); Szeratics v. State, 572 P.2d 63, 67 (Alaska 1977); Black v. State, 569 P.2d 804, 805 (Alaska 1977); Huff v. State, 568 P.2d 1014, 1020 (Alaska 1977); Mattern v. State, 500 P.2d 228, 234 (Alaska 1972); Galaktionoff v. State, 486 P.2d 919, 924–25 (Alaska 1971); Yu v. St......