Dale v. State

626 P.2d 1062, 1980 Alas. LEXIS 663

• Court: Alaska Supreme Court
• Decided: November 7, 1980
• Docket: No. 4506
• Status: Published

Opinions

OPINION

MATTHEWS, Justice.

Walter John Dale was convicted, after pleading guilty, of five counts of sale of cocaine, a violation of AS 17.10.010, and was sentenced to five concurrent five-year terms. He now appeals that sentence.

Dale’s conviction was based on the simultaneous sale of three grams to an informant, Larry Wayne, and one gram to an undercover police officer, Charles Adams, on May 9,1978; a similar simultaneous sale on May 11; and the sale of one ounce, for $2,400, to Adams on May 16. All the sales took place at the Party House in Anchorage, which the state characterizes as “an after-hours gambling and drinking place” run by Dale. Dale explained that he had sold the cocaine, at no personal profit, to Wayne in order to help him through some hard times, and that he sold it to Adams because he was told that Adams was Wayne’s cousin.¹ At sentencing, in December, 1978, the state introduced evidence suggesting that Dale was a long-time cocaine dealer who trafficked in relatively large amounts. The sentencing judge expressed disbelief in Dale’s version of the cocaine sales.

On appeal Dale raises two claims of error. Dale first argues that the court improperly considered certain evidence in determining the sentence. In particular, he objects to the court’s reliance on a previously dismissed indictment for possession of narcotics, which had been based on illegally seized evidence, and on an alleged uncharged cocaine sale. Assuming that consideration of this evidence was error, we find the error to be harmless. The judge explained that he considered the disputed evidence only to test the credibility of Dale’s story that he was simply acting as a middle-man and a good Samaritan in supplying narcotics to Wayne and Adams. In view of the substantial uncontradicted evidence presented by the state suggesting that Dale was a “professional” cocaine dealer, we think that the court would have disbelieved Dale’s account regardless of any consideration of the controverted evidence.

Secondly, Dale claims that the sentence was excessive in that the court did not consider Dale’s nearly certain deportation,² which would serve to effectuate the Chaney sentencing goals of rehabilitation, reinforcement of societal norms, isolation and deterrence³ as well as incarceration would. An examination of the record reveals that Dale’s counsel addressed the likelihood and import of Dale’s deportation immediately preceding the court’s imposition of sentence. It is evident that the judge had the possibility of Dale’s deportation in mind when he imposed sentence, and his failure to articulate the role it played in his thinking is not error.⁴ We find that the sentence imposed was not clearly mistaken.⁵

AFFIRMED.

RABINOWITZ, C. J., concurs in part and dissents in part.

1 . According to Dale, he had met Wayne when Wayne was “down and out.” Wayne told Dale that he was the brother-in-law of an old friend of Dale, and Dale took Wayne into his home for a few days. Wayne explained to Dale that he was despondent over problems with his girlfriend, and was thinking of killing her and himself. When Dale next saw Wayne, Wayne was in high spirits, and said that he and his girlfriend had resolved their differences. Wayne then asked Dale if Dale could get him a gram of cocaine, because his girlfriend liked it. Dale said he was “taken aback” by this request, but, in order to keep Wayne happy, asked around among his customers at the Party House and got the requested gram. After this first sale, Dale continued to sell cocaine to Wayne and his “cousin” Adams in response to “repeated and different excuses” until Dale was finally arrested.

2 . Dale is a British citizen. He was in fact ordered deported on June 12, 1979, and he has agreed not to appeal the order. Under 8 U.S.C. § 1252(h), deportation cannot take place until Dale is released from prison.

3 . See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).

4 . Although under the circumstances of this case we do not find it error for the trial judge not to have articulated considerations pertaining to deportation, we believe that generally a judge should specify the manner in which deportation plays a role in the imposition of sentence.

5 . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).