Waters v. State
| Decision Date | 25 March 1971 |
| Docket Number | No. 1276,1276 |
| Parties | Leneal Osborne WATERS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Victor D. Carlson, Public Defender, James D. Gilmore, Asst. Public Defender, Anchorage, for appellant.
Harold W. Tobey, Dist Atty., Anchorage, G. Kent Edwards, Atty. Gen., Juneau, for appellee.
Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.
Leneal Osborne Waters appeals from a 10-year sentence for the crime of selling cocaine in violation of AS 17.10.010. 1
A two-count indictment was originally returned against appellant under which he was charged with separate sales of cocaine and heroin. A verdict of guilty as to the cocaine transaction was returned. The record further shows that the heroin count was dismissed. 2
At the time appellant was sentenced upon his conviction for unlawful sale of cocaine, sentence was also imposed upon his plea of guilty to a separate robbery offense. In regard to the drug offense, appellant received the maximum sentence of 10 years together with a concurrent 5-year term of imprisonment upon his conviction of the crime of robbery. 3 In this appeal the issue for determination is whether the 10-year sentence for sale of cocaine is excessive on the particular facts of this record.
In State v. Chaney, 4 we had occasion to discuss the scope of this court's review in sentence appeals, the generalized objectives of sentence review, and the standards of criminal justice which are embodied in Alaska's constitutional mandate, which provides that '(p)enal administration shall be based on the principle of reformation and upon the need of protecting the public.' 5 Concerning this court's scope of review in sentence appeals, it was said in Chaney that 'we will make our own examination of the record and will modify the sentence if we are convinced that the sentencing court was clearly mistaken in imposing the sanction it did.' 6
The presentence report in the case at bar indicates the following: At the time sentence was imposed, appellant was 22 years old, had a high school education, was married, and was the father of two young children. His employment record included experience as a carpenter's apprentice, bricklayer's apprentice, mess attendant, warehouseman, and salesman. According to this same report, appellant freely admitted his addiction to durgs. In 1968, appellant was convicted of the felony offense of larceny in a building. While on probation, he committed the unlawful sale of cocaine and robbery offenses involved in this appeal. The latter offense was committed during the time appellant awaited trial on the drug sale charges. In explanation of his commission of the sale of cocaine, appellant stated in part that he
was strung out on narcotics and had been for approx. 9 months. Wasn't a pusher but knew where to get the narcotics. The undercover agent had asked me several times before for Dope and I flatly turned him down. But on this particular day I was sick myself and didn't have the money for a fix.
Concerning the reasons why he committed robbery, appellant stated in part that:
I was under strain, my wife was pregnant and sick 2,500 miles away in Portland, Oreg. I tried in every way for them to get money by other means honestly.
* * * I really didn't mean to rob the Travel Lodge and haven't made any robberies since. My true reasons for committing this crime are exactly as I've mentioned before; My wife was sick in Portland and I had to see how she was doing and I was sick here from not having any narcotics in two days and needed the money to get dope and see her.
On the basis of our review of the record and sentencing proceeding in accordance with the standards articulated in State v. Chaney, 477 P.2d 441 (Alaska 1970), we cannot say that the sentencing court was clearly mistaken in imposing the maximum 10-year sentence in regard to appellant's conviction of unlawful sale of cocaine. Viewed in isolation, we would be inclined to hold that the imposition of the maximum sentence in regard to the drug offense was unjustified in this case, for the record does not reflect that appellant comes within the category of the most serious type of drug offender. The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 513 (Avon 1968) recommends that judges take account of four groups of drug offenders whose crimes are in descending order of seriousness.
1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.
2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.
3. Possession of naroctics without intent to sell.
4. Marijuana offenses.
We think these categories are relevant in sentencing of drug offenders. From the record it seems that appellant is neither a titan of the narcotics business nor a mere user; he seems to be an occasional retailer. In sentencing, it should be remembered that the maximum sentence for a particular offense expresses a legislative judgment about how the worst offender within a class designated by the legislature should be treated. Here there is an absence of foundation for characterization of appellant as the worst type of drug offender.
Considering the drug conviction alone, we would entertain serious doubts as to the efficacy of a long period of incarceration of appellant for a single violation of our drug laws, particularly where on the record before us it appears that the sale in question was motivated by appellant's own addiction to drugs. Given a single transaction involving small quantity of the drug a short period of incarceration, with greater emphasis on probation, is more lilely to be an appropriate sentence.
On the other hand, the trial court properly considered the fact that appellant was previously convicted of the felony offense of larceny in a building, that while on probation he committed the crime of unlawful sale of cocaine, that while released and awaiting...
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State v. Green
...(App.Ct.1971) and People v. Loomis, 271 N.E.2d 66 (Ill.App.Ct.1971). Defendant also cites two recent Alaska cases, Waters v. State, 483 P.2d 199, 202--203 (Alaska Sup.Ct.1971) and Robinson (George Ronald) v. State, 484 P.2d 686, 690, n. 11 (Alaska Sup.Ct.1971), which follow in substance the......
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Lawson v. State
...Alaska has held that 'courts should be wary f relying on a record of police 'contacts' or an arrest record', Waters v. State, 483 P.2d 199, 203 (Alaska, 1970); and further held that a record of 'police contacts should not be made part of a presentence report.' Robinson v. State, 484 P.2d 68......