Robinson v. State, 1344
| Decision Date | 07 May 1971 |
| Docket Number | No. 1344,1344 |
| Citation | 484 P.2d 686 |
| Parties | George Ronald ROBINSON, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Victor D. Carlson, Public Defender, Michael L. Rubinstein, Asst. Public Defender, Anchorage, for appellant.
G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Keith E. Brown, Robert L. Eastaugh, Asst. Dist. Attys., Anchorage, for appellee.
Before BONEY, C. J., and DIMOND, RABINOWITZ, and CONNOR, JJ.
In this appeal appellant George Ronald Robinson claims that the sentence imposed by the superior court was excessive. 1
In the superior court Robinson was indicted for the crime of robbery 2 and using or carrying a firearm during the commission of a robbery. 3 After jury trial, he was found guilty of both charges and sentenced to 15 years imprisonment upon the robbery conviction and 10 years imprisonment upon the conviction for using or carrying a firearm during the commission of a robbery. These terms of imprisonment were made concurrent and the entire sentence was in turn made to run consecutively to a seven year sentence which had been previously received for separate crimes of armed robbery and attempted robbery.
Our recent decision in Whitton v. State, 479 P.2d 302 (Alaska 1970), requires that the judgment and commitment in this case be vacated and the case remanded for further sentencing proceedings. In Whitton, the appellant was similarly charged with robbery and the offense of use of a firearm during the commission of a robbery. There we concluded that the crimes of robbery we concluded that the crimes commission of robbery constituted the same offense for purposes of double jeopardy, and under such circumstances only one sentence was constitutionally permissible. 4 In regard to the subject of multiple sentences and the constitutional prohibition against double jeopardy, Whitton adopted a rule which requires the trial judge to focus upon 'the quality of the differences, if any exist, between the separate statutory offenses, as such differences relate to the basic interests sought to be vindicated or protected by the statutes.' We further said that:
If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy. Ordinarily the one sentence to be imposed will be based upon or geared to the most grave of the offenses involved, with degrees of gravity being indicated by the different punishments prescribed by the legislature. 5
In Whitton, we also alluded to the fact that since the robbery was perpetrated by the use of a firearm the crime of robbery with a firearm was also committed. From this it was concluded that
(s)ince the more serious offense already proscribes and punishes the activity of the less serious offense, the differences between the two offenses must be deemed insubstantial or insignificant in relation to the social interests involved.
The result is that the two separate statutory crimes constitute the 'same offenses' for purposes of double jeopardy. A single sentence was all that could properly be imposed under the double jeopardy provision of our constitution. 6
Under Whitton the multiple sentences imposed in the case at bar are violative of Alaska's constitutional proscription against double jeopardy. We therefore hold that the trial court's judgment and commitment must be vacated and the matter remanded for imposition of a single sentence in conformity with Whitton. 7
We deem it necessary to refer to several additional facets of the sentencing proceeding which occurred in the case at bar. In State v. Chaney, 477 P.2d 441, 443 (Alaska 1970), in the course of delineating this court's scope of review in sentence appeal matters, it was said that '(w)e are also obliged to consider the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based.' Review of the record here compels the conclusion that the trial judge was not furnished sufficient information concerning Robinson prior to imposing what was in effect a term of 22-years imprisonment.
At oral argument it was contended in part that the sentence in question was excessive because Robinson would be ineligible for parole during service of his first seven-year term of imprisonment. Alaska's Parole Administration Act requires the parole board to
adopt rules which it considers necessary or proper with respect to the eligibility of prisoners for parole, the conduct of parole hearings and conditions of release to be imposed on parolees. 8
No rules promulgated by the parole board regarding eligibility of prisoners for parole have been brought to our attention. 9 Before making a decision as to whether the sentence in the case at bar should have been made to run consecutively to the seven-year sentence Robinson was serving for previous convictions of armed robbery and attempted robbery, the trial judge should have had knowledge of the parole board's policies or rules, if any, respecting the eligibility of prisoners for parole where consecutive sentences are involved. Concerning sentencing, sentence appeals, and parole matters in general, we believe it would be of benefit to all concerned if, as soon as practicable, the parole board, in conformity with AS 33.15.100, adopted rules regarding eligibility of prisoners for parole, the conduct of parole hearings, and conditions of release to be imposed on parolees.
The question of when a prisoner is eligible for parole when consecutive sentences are imposed is of considerable significance not only to the prisoner and the state, but also to this court in carrying out its sentence review functions. 10 If, under present practices and policies of the parole board, Robinson is ineligible for parole until he has served all of the initial seven-year sentence and some portion of the consecutive sentence as imposed in the case at bar, then we would view the consecutive sentence as excessive and contradictory of the goal of rehabilitation in the administration of our system of criminal justice.
Examination of the record in this sentence appeal discloses that no psychological or psychiatric studies of Robinson were furnished to the trial judge prior to sentencing. Study of the sentencing proceedings reveals the trial judge entertained the firm conviction that the 19-year-old Robinson was beyond the reach of any rehabilitative efforts. Given Robinson's age and the state's recommendation that he be incarcerated in effect for 22 years, we think it imperative that the trial judge should have been furnished with psychological and psychiatric reports of Robinson prior to the imposition of sentence. Had this information been made available, the trial judge would probably have been in a position to make a more enlightened...
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