Smith v. State

• Decision Date: 27 December 1985
• Docket Number: Nos. A-897,s. A-897
• Citation: Smith v. State, 711 P.2d 561 (Alaska App. 1985)
• Parties: Christopher M. SMITH and Walter King, Appellants, v. STATE of Alaska, Appellee. /898.
• Court: Alaska Court of Appeals

Page 561

711 P.2d 561

Christopher M. SMITH and Walter King, Appellants, v. STATE of Alaska, Appellee.

Nos. A-897/898.

Court of Appeals of Alaska.

Dec. 27, 1985.

Valerie Tehan, Asst. Public Advocate, Sen K. Tan, Asst. Public Defender, and

Dana Fabe, Public Defender, Anchorage, for appellants.

Eugene P. Murphy, Asst. Dist. Atty., Victor C. Krumm, Dist. Atty., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

In this case, we must determine whether manifest injustice resulted from the three-judge sentencing panel's failure to consider, as a mitigating factor in sentencing, favorable information pertaining to the defendants' potential for rehabilitation.

Christopher Smith and Walter King were each charged with two counts of robbery in the first degree, a violation of AS 11.41.500(a)(1), and were convicted after entering pleas of no contest and guilty. Both men, though first felony offenders, were subject to seven-year presumptive terms of imprisonment. AS 12.55.125(c). At the request of Smith and King, Superior Court Judge J. Justin Ripley referred the case to the three-judge sentencing panel, finding that manifest injustice would result if the presumptive terms were imposed without consideration of the defendants' favorable backgrounds. The panel remanded the case to Judge Ripley, however, concluding that imposition of the presumptive sentence would not amount to a manifest injustice. On remand, at the direction of the panel, Judge Ripley sentenced Smith and King to concurrent seven-year presumptive terms. Smith and King appeal, contending that the three-judge panel erred in failing to find manifest injustice.

We conclude that manifest injustice will result if a sentence is imposed without consideration being given to evidence of Smith's and King's amenability to rehabilitation. Accordingly, we vacate the presumptive sentences and remand to the three-judge sentencing panel for imposition of sentence.

FACTS

A. The Offenses.

On the night of December 9, 1983, following a basketball game, Walter King visited his friend Christopher Smith at Smith's home in Anchorage. Smith and King drank about three quarts of malt liquor and smoked some marijuana. Both men were having problems with their girlfriends and felt despondent. They discussed the possibility of returning to their family homes outside Alaska for the Christmas season and eventually decided to commit a robbery to get money for the trip home.

At 1:25 a.m., on December 10, 1983, Smith and King entered a Timesaver convenience store near downtown Anchorage and demanded money from the clerk. Both men were armed with handguns. The clerk handed them about $100 from the cash register. The men departed.

One and one-half hours later, at 3:00 a.m., Smith and King entered a Quik Stop market in Mountain View, again brandishing handguns and demanding money from the clerk. The clerk produced about $100 from the cash register, and the men left the store.

Shortly after the second robbery, Anchorage police officers stopped Smith and King as they attempted to drive away from the vicinity of the Mountain View Quick Stop store. An inspection of the car in which they were driving yielded the stolen currency and the handguns that had been used in the robberies. Smith and King were arrested. They offered no resistance, and, upon arrest, both gave confessions to the police.

B. The Offenders.

Christopher Smith was twenty years old at the time of the offense. Smith had no prior record of criminal convictions or juvenile adjudications. He has maintained strong ties with his mother and his immediate family in Atlanta, Georgia. Smith came to Alaska with the United States Army. Shortly before committing this offense, he received a general discharge from the Army under other than honorable conditions. Smith's discharge was apparently related to his use of marijuana, but he was never formally charged with any military violations.

Walter King was also twenty years old at the time of the offense. He also had no prior criminal convictions and no juvenile adjudications. King lived with his family in Olney, Maryland, until 1981. Like Smith, he has maintained strong family ties. King also came to Alaska as a member of the United States Army. He received a general discharge under honorable conditions several weeks before the offense in this case. As with Smith, King was never charged with any military violations, but his discharge was apparently related to the use of marijuana.

As noted in Smith's presentence report, the similarities between Smith and King are remarkable in many respects:

Mr. Smith and his codefendant have a number of similarities in their backgrounds and behavior. They are very close friends; both come from career military families; each lost at least one father to death; each was an outstanding athlete in high school and received public acclaim for his achievements; both served unhappily in the military and received less than honorable discharges. Both Smith and King were raised by loving and devoted parents and [are] respected by those who know them. Both have experienced adversity and pain in their lives as well as love and nurturing. Neither has had previous criminal contact.

After their apprehension both fully accepted responsibility for their acts and gave full disclosure to police. Both seem sincerely sorry for their acts and dread the prospect of extensive jail time. As with his codefendant Mr. Smith has contributed to society in the past and is capable of continued contribution. ¹

C. The Sentencing Hearings.

Prior to sentencing, neither Smith nor King was able to establish that any specific statutory mitigating factor applied to his case. See AS 12.55.155(d). The state did not allege the existence of any aggravating factors. See AS 12.55.155(c). Because Smith and King used firearms during the commission of their robberies, they were subject to a presumptive term of seven years' imprisonment for each conviction. AS 12.55.125(c)(2). In the absence of aggravating or mitigating factors, the sentencing court was obligated to impose the presumptive terms unless it concluded that referral of the case to the three-judge sentencing panel, in accordance with AS 12.55.165-12.55.175, was necessary to avoid manifest injustice.

At their sentencing hearing, Smith and King asked Judge Ripley to refer their cases to the three-judge panel for sentencing. Both men argued that manifest injustice would result if their cases were not referred to the three-judge panel, because imposition of the seven-year presumptive term would preclude the court from considering important evidence relating to their good prospects for rehabilitation. In particular, Smith and King maintained that it would be unfair for the court, in imposing sentence, to ignore the good evaluations they received in their presentence reports, their favorable backgrounds and strong family ties, their consistent records of employment and lack of any prior criminal record, their relative youth, and the impulsive and unsophisticated manner in which their offenses were committed.

After hearing the argument from all parties, Judge Ripley was persuaded that a referral to the three-judge panel was necessary. Judge Ripley stated, in relevant part:

I'm not saying that armed robbers by and large shouldn't serve long stretches in jail. But where you have two young fellows that look as different from the normal folks who sit at--or defendants who normally appear at that table, I'm [co]mpelled to say that in order to get any kind of flexibility, there appearing no statutory mitigators or things that realistically approach the statutory mitigator available to me, I believe that given the prior good record and the--all the factors mentioned that we have an obligation to attempt at least to fashion a sentence that is perhaps involving a long term of jail time but at least one that is sufficiently flexible to deal with their problems and not I believe to fall in the seven year range. I believe it would be a manifest injustice to require a flat time sentence. That's my single reason for doing it in both cases. The flat time is seven years. It would take saintly people with an iron will not to give up and not to fall prey to the bad guidance that's available in the penal institutions, particularly the institutions to which they would be sent with a flat time seven year sentence. Taking nothing away from [the prosecutor's] considered argument, nevertheless I direct these files to the three-judge panel.

Upon referral, the three-judge panel conducted de novo sentencing proceedings. The panel did not reject any of the factual conclusions reached by Judge Ripley, but it disagreed with his ultimate finding of manifest injustice. Speaking on behalf of the panel, Superior Court Judge S.J. Buckalew stated:

Counsel, we had an opportunity to carefully consider this issue and all three judges have had an opportunity to read the presentence reports and all the material that's been submitted and we considered the arguments of counsel. I have a few observations to make. First, we all agree that both Mr. Smith and Mr. King have good presentence reports and we've discussed the presumptive sentence and I think I'm safe in saying that but for the presumptive sentence we would probably impose, all three of us would impose a sentence somewhat different than the presumptive term. All three of us agree that some time should be imposed and certainly a lengthy period of probation which would probably more adequately address rehabilitation. And the hard issue is whether or not the imposition of the presumptive term is a manifest injustice. Is the imposition of the presumptive sentence such that it chills the conscience, it's facially unjust and we again looked at the facts and circumstances. We have two young men, both armed with handguns committing...