Kelly v. State, s. 4097

• Decision Date: 23 January 1981
• Docket Number: Nos. 4097,4529,s. 4097
• Citation: 622 P.2d 432
• Parties: Thomas F. KELLY, Appellant, v. STATE of Alaska, Appellee. Burr SNYDER, Appellant, v. STATE of Alaska, Appellee. File
• Court: Alaska Supreme Court

Page 432

622 P.2d 432

Thomas F. KELLY, Appellant, v. STATE of Alaska, Appellee.

Burr SNYDER, Appellant, v. STATE of Alaska, Appellee.

File Nos. 4097, 4529.

Supreme Court of Alaska.

Jan. 23, 1981.

Phillip P. Weidner, Drathman, Weidner & Bryson, Anchorage, for appellants.

James V. Gould, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. ^*

OPINION

RABINOWITZ, Chief Justice.

This is a consolidated sentence appeal reviewing sentences for drug sales convictions. Kelly appeals a sentence of ten years with five suspended, together with a fine of $4,000, suspended until six months after his release from prison, for sale of cocaine. Kelly appeals both the original sentence given by the superior court and the superior court's failure to grant his motion for reduction of sentence. Snyder was sentenced to five years' imprisonment for sale of marijuana. Snyder appealed to this court errors in his conviction and contended that his sentence was excessive. In Snyder v. State, 585 P.2d 229 (Alaska 1978), we affirmed his conviction but remanded for resentencing on the ground that the superior court had improperly emphasized the sentencing goal of community condemnation, in light of the ambivalent community feeling toward marijuana offenses. In a separate concurrence, Justice Matthews, joined by Justice Connor, concluded that the original sentence was excessive. Justice Burke, dissenting, concluded that the sentence was not excessive. Upon remand, the superior court again sentenced Snyder to five years' imprisonment and Snyder has again appealed.

In this appeal, both appellants contend that the sentencing theory that the superior court employed is contrary to law, and thus the sentences imposed should be reconsidered; and also that the ultimate sentence given in each case is excessive and should be reversed.

Upon review, we have determined that the superior court failed to consider the nature of the offense as mandated in our prior opinions and acted on incorrect information concerning parole release. Thus, the sentences must be vacated and the matters remanded for resentencing. We have also concluded that the ultimate sentence given in each case is excessive.

The superior court's sentencing in these cases is based on a sentencing theory that is summed up in the following statement from the superior court's Rule 35 decision:

Under (the Alaska) Constitution, sentencing goals should be purely utilitarian, i. e. the prevention of future crime and not retributive.

A major portion of the superior court's lengthy opinion is spent explicating this conclusion and in demonstrating the results of its application. We are persuaded that the superior court's conclusion is incorrect.

The Alaska Constitution provides that "(p)enal administration shall be based on the principle of reformation and upon the need for protecting the public." Alaska Const. art. I, sec. 12. This court expanded on the meaning of this section of the constitution in State v. Chaney, 477 P.2d 441, 444 (Alaska 1970) (footnotes omitted):

Under Alaska's Constitution, the principles of reformation and necessity of protecting the public constitute the touchstones of penal administration. Multiple goals are encompassed within these broad constitutional standards. Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves.

In Faulkner v. State, (445 P.2d 815, 823 (Alaska 1968)) it was said, determination of an appropriate sentence involves the judicious balancing of many and ofttimes competing factors ... (of which) primacy cannot be ascribed to any particular factor.

The superior court concluded that all of these goals could be subsumed under the goal of crime prevention, except perhaps that of reaffirmation of societal norms. Even this goal, the superior court reasoned, if properly considered, is to be subsumed under prevention:

From the foregoing, it should be clear that if community condemnation and affirmation of community norms is viewed instrumentally (i. e., as a means to an end), as intended to publicize the norm and the sanction, and thereby discourage deviance from it, then affirmation of community norms is synonymous with general deterrence. Alternatively, if the purpose is to express moral disapproval of the defendant and thereby render unto him his desserts without regard to the impact on his or others' future conduct from the sentence, then it is synonymous with retribution.

Given the foregoing, the superior court concluded that the seriousness of the crime should not be considered by the sentencing court either to enhance or to limit the sentence, since this would be based upon the prohibited goal of retribution.

We have previously stated that the goal of community condemnation is distinct from retribution, in Smothers v. State, 579 P.2d 1062, 1064 (Alaska 1978) (footnote omitted):

We note that the trial court expressed some uncertainty as to the meaning of the fourth Chaney criterion, the reaffirmation of societal norms, questioning whether it actually was a disguise for retribution. The use of retribution as a goal of sentencing is inconsistent with the mandate of art. I, § 12 of the Alaska Constitution that 'Penal administration shall be based on the principle of reformation and upon the need for protecting the public,' and was not adopted as one of the four goals in State v. Chaney, 477 P.2d at 444.

The support of community expectations that existing norms will be enforced and delicts will be punished is separate from retribution. The judge's balancing of the factors of rehabilitation, isolation and deterrence must also include an awareness that in sentencing, he is reflecting community beliefs that certain norms are viable and will be upheld by the courts.

Further, as part of both the community condemnation and deterrence goals, ¹ we have consistently articulated a concern for the nature of, and harm stemming from, the offense. In State v. Chaney, 477 P.2d 441, 443 (Alaska 1970), this court, in quoting with approval the ABA Standards Relating to Appellate Review of Sentences, Standard 1.2 (Approved Draft, 1968), noted that the nature of the offense must be considered. ² Additionally, we have often stated that violent crimes involving physical injury to innocent people are to be regarded as the most serious type of offense. ³ Another example of our focus on the seriousness of the offense is found in the categorization of drug offenses first articulated in Waters v. State, 483 P.2d 199 (Alaska 1971); ⁴ the placing of marijuana crimes in a separate class from all other drug offenses as being least harmful is a reflection of a consideration of the potential effect of the drug upon society. Throughout this court's review of sentences, the degree of physical or psychological violence involved in the offense has been an important factor. Even in property crimes, the degree of harm is important. We have noted in one case the minor nature of a petty theft as a mitigating factor at sentencing. ⁵

The revised criminal code effective this year specifically calls for a consideration of the nature of the offense. AS 12.55.005 now provides, in part:

In imposing sentence, the court shall consider

(1) the seriousness of the defendant's present offense in relation to other offenses;

(4) the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;

(6) the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms.

In view of the foregoing we conclude that in attempting to eliminate consideration of the nature of the offense from its consideration of relevant factors at sentencing, the superior court was clearly mistaken and the sentences in the instant case must be reversed.

Although the issue was not raised by appellants, we have determined that the superior court also committed plain error ⁶ in the method of its consideration of the probable parole period as a determinative factor in sentencing Kelly and Snyder. This court, in Bordewick v. State, 569 P.2d 184, 185 n.1 (Alaska 1977), stated:

Whether Bordewick will in fact be paroled after serving four years (of a twelve year sentence), or some longer period of imprisonment, is a matter which the courts cannot determine with any degree of certainty.

In Huff v. State, 568 P.2d 1014 (Alaska 1977), appeal after remand, 586 P.2d 621 (Alaska 1978), the court had looked at the only study done in Alaska of parole and concluded:

At the present time a prisoner may become eligible for parole if the presiding judge, at the time of sentencing, designates a minimum period which the prisoner must serve in prison before being eligible for parole which, according to statute, 'shall be at least one-third of the maximum sentence imposed by the court.' But it does not follow from this that there is any certainty that a prisoner, such as Huff, would actually be paroled at that time. As has been recently stated in 'Parole in Alaska,' published in January 1977:

There is an increasing tendency among judges as well as in editorial comment to consider that those convicted of a crime will be automatically released on parole when one-third of the time is served....