OPINION
BURKE, Justice.
James Mangold was charged by grand jury indictment with two counts of selling cocaine in violation of AS 17.10.010. The sales allegedly occurred on July 25 and September 1, 1978; the buyer in each case paid $100 for a gram of cocaine.
The sales were made to undercover police officers, who stated in attachments to the presentence report that they bought one more gram on September 6 and set up a buy of one-half pound of cocaine for September 13, 1978. On that day, Mangold supplied only one-fourth pound of the drug which he admitted selling to the officers for approximately $8,000. He was immediately arrested.
The charge arising out of the one gram sale on July 25 was dismissed at sentencing, after Mangold entered a plea of guilty to the September 1 sale of one gram. An additional charge, for the quarter pound sale on September 13, was also dismissed at that time.
The superior court sentenced Mangold to a five year term of imprisonment, suspending the execution of a two year portion thereof. Mangold appeals claiming that the sentence is excessive, that it was based on unverified and prejudicial information in the presentence report, and that the sentencing judge improperly categorized him as being within the worst class of drug offenders.
A.
Characterization as Worst Type of Drug Offender
In
Waters v. State,
483 P.2d 199, 201 (Alaska 1971), we established the following categories for use in the sentencing of drug offenders:
1. Smuggling, sale, or possession for sale of large quantities of narcotics;
2. Smuggling, sale, or possession for sale of small quantities of narcotics;
3. Possession of narcotics without intent to sell;
4. Marijuana offenses.
Mangold claims he fell into category 2. The superior court, relying on Mangold’s admission at the time of sentencing, found that he had made the quarter pound sale. The court then concluded that he fell into category 1, the most serious of the four categories in
Waters.
Relying on
Galaktionoff v. State,
486 P.2d 919 (Alaska 1971), Mangold claims that the court’s consideration of the one-fourth pound transaction, for which the charge was dismissed, was error.
In
Galaktionoff
we reviewed a decision rendered in an appeal to the superior court, wherein the superior court affirmed a district court sentence of one year for the crime of petty larceny. The record revealed that a major factor in the superior court’s decision to affirm the sentence was its “belief that Galaktionoff was probably guilty of more serious offenses than the one charged.” 486 P.2d at 923-24. We reversed, stating:
We recognize, of course, that in the circumstances of this case the petty larceny which was committed would support a charge of larceny in a building or burglary not in a dwelling. Nevertheless we feel that such possible greater offenses should not be considered by the reviewing court.
Id.
at 924.
Galaktionoff,
however, was “not intended to restrict the trial court from using verified information concerning additional crimes where the defendant is informed of the information and given an opportunity to explain or admit it.”
Hixon v. State,
508 P.2d 526, 527 n. 1 (Alaska 1973) (citation
omitted). Thus, in
Hixon v. State,
we held that the superior court did not err in sentencing the defendant on charges of robbery and burglary not in a dwelling when it considered additional felony charges that were admitted by the defendant at the time of sentencing even though those additional charges were later dismissed. Unlike the situation in
Galaktionoff,
where an unrepresented defendant’s “explanation of the crime was not solicited or heard.” 486 P.2d at 923, the defendant in
Hixon,
at the time of sentencing, “acknowledged the commission of two [additional] burglaries and the felony of receiving stolen property, all of which were dismissed after a plea of guilty to the charges [upon which he was being sentenced].” 508 P.2d at 527.
Mangold’s reliance upon
Galaktio-noff
is, therefore, misplaced. Since Man-gold admitted making the quarter pound sale, the superior court was entitled, under our holding in
Hixon,
to consider his commission of that additional felony offense in sentencing him on the charge upon which he was convicted.
Given Mangold’s admission that in addition to the sale for which he was convicted, he later sold the officers a quarter pound of cocaine, for approximately $8,000, we believe that the superior court was enti-tied to classify him as coming within the most serious category of drug offenders described in
Waters.
There is nothing in our opinion in
Waters
that requires the sentencing court to classify a drug offender solely on the basis of the facts underlying the particular offense leading to his conviction.
Waters
stresses differentiation among
offenders,
not among the particular facts of a given charge. 483 P.2d at 201.
B.
Use of Unverified Information in the Presentence Report
Mangold next contends that he is entitled to a reduction in his sentence, or resentencing by the superior court, because of the inclusion of improper material in the presentence report prepared by the probation officer prior to sentencing. Specifically, Mangold complains of the following:
1. A statement prepared by one of the undercover officers, Dennis Hubble, “contains accounts of police contacts prior to the offense for which appellant was being sentenced.”
2. A statement prepared by another officer, Charles Adams, contained “statements concerning the arrest and indictment of Wayne Fulton, who is termed ‘closely associated’ with appellant, for threatening a state’s witness.”
3. In addition, such statements contained “unsubstantiated allegations which would not have been sufficient for obtaining a mere search warrant.”
4. The probation officer’s report “contained unfounded assumptions of the length and depth of appellant’s involvement in the drug scene, alleging that it has been continuous since defendant’s . . . conviction [for possession of a small quantity of marijuana in 1972].”
5. The presentence report contained “material factual mistakes and omissions,” relating to Mangold’s employment history and educational background.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BURKE, Justice.
James Mangold was charged by grand jury indictment with two counts of selling cocaine in violation of AS 17.10.010. The sales allegedly occurred on July 25 and September 1, 1978; the buyer in each case paid $100 for a gram of cocaine.
The sales were made to undercover police officers, who stated in attachments to the presentence report that they bought one more gram on September 6 and set up a buy of one-half pound of cocaine for September 13, 1978. On that day, Mangold supplied only one-fourth pound of the drug which he admitted selling to the officers for approximately $8,000. He was immediately arrested.
The charge arising out of the one gram sale on July 25 was dismissed at sentencing, after Mangold entered a plea of guilty to the September 1 sale of one gram. An additional charge, for the quarter pound sale on September 13, was also dismissed at that time.
The superior court sentenced Mangold to a five year term of imprisonment, suspending the execution of a two year portion thereof. Mangold appeals claiming that the sentence is excessive, that it was based on unverified and prejudicial information in the presentence report, and that the sentencing judge improperly categorized him as being within the worst class of drug offenders.
A.
Characterization as Worst Type of Drug Offender
In
Waters v. State,
483 P.2d 199, 201 (Alaska 1971), we established the following categories for use in the sentencing of drug offenders:
1. Smuggling, sale, or possession for sale of large quantities of narcotics;
2. Smuggling, sale, or possession for sale of small quantities of narcotics;
3. Possession of narcotics without intent to sell;
4. Marijuana offenses.
Mangold claims he fell into category 2. The superior court, relying on Mangold’s admission at the time of sentencing, found that he had made the quarter pound sale. The court then concluded that he fell into category 1, the most serious of the four categories in
Waters.
Relying on
Galaktionoff v. State,
486 P.2d 919 (Alaska 1971), Mangold claims that the court’s consideration of the one-fourth pound transaction, for which the charge was dismissed, was error.
In
Galaktionoff
we reviewed a decision rendered in an appeal to the superior court, wherein the superior court affirmed a district court sentence of one year for the crime of petty larceny. The record revealed that a major factor in the superior court’s decision to affirm the sentence was its “belief that Galaktionoff was probably guilty of more serious offenses than the one charged.” 486 P.2d at 923-24. We reversed, stating:
We recognize, of course, that in the circumstances of this case the petty larceny which was committed would support a charge of larceny in a building or burglary not in a dwelling. Nevertheless we feel that such possible greater offenses should not be considered by the reviewing court.
Id.
at 924.
Galaktionoff,
however, was “not intended to restrict the trial court from using verified information concerning additional crimes where the defendant is informed of the information and given an opportunity to explain or admit it.”
Hixon v. State,
508 P.2d 526, 527 n. 1 (Alaska 1973) (citation
omitted). Thus, in
Hixon v. State,
we held that the superior court did not err in sentencing the defendant on charges of robbery and burglary not in a dwelling when it considered additional felony charges that were admitted by the defendant at the time of sentencing even though those additional charges were later dismissed. Unlike the situation in
Galaktionoff,
where an unrepresented defendant’s “explanation of the crime was not solicited or heard.” 486 P.2d at 923, the defendant in
Hixon,
at the time of sentencing, “acknowledged the commission of two [additional] burglaries and the felony of receiving stolen property, all of which were dismissed after a plea of guilty to the charges [upon which he was being sentenced].” 508 P.2d at 527.
Mangold’s reliance upon
Galaktio-noff
is, therefore, misplaced. Since Man-gold admitted making the quarter pound sale, the superior court was entitled, under our holding in
Hixon,
to consider his commission of that additional felony offense in sentencing him on the charge upon which he was convicted.
Given Mangold’s admission that in addition to the sale for which he was convicted, he later sold the officers a quarter pound of cocaine, for approximately $8,000, we believe that the superior court was enti-tied to classify him as coming within the most serious category of drug offenders described in
Waters.
There is nothing in our opinion in
Waters
that requires the sentencing court to classify a drug offender solely on the basis of the facts underlying the particular offense leading to his conviction.
Waters
stresses differentiation among
offenders,
not among the particular facts of a given charge. 483 P.2d at 201.
B.
Use of Unverified Information in the Presentence Report
Mangold next contends that he is entitled to a reduction in his sentence, or resentencing by the superior court, because of the inclusion of improper material in the presentence report prepared by the probation officer prior to sentencing. Specifically, Mangold complains of the following:
1. A statement prepared by one of the undercover officers, Dennis Hubble, “contains accounts of police contacts prior to the offense for which appellant was being sentenced.”
2. A statement prepared by another officer, Charles Adams, contained “statements concerning the arrest and indictment of Wayne Fulton, who is termed ‘closely associated’ with appellant, for threatening a state’s witness.”
3. In addition, such statements contained “unsubstantiated allegations which would not have been sufficient for obtaining a mere search warrant.”
4. The probation officer’s report “contained unfounded assumptions of the length and depth of appellant’s involvement in the drug scene, alleging that it has been continuous since defendant’s . . . conviction [for possession of a small quantity of marijuana in 1972].”
5. The presentence report contained “material factual mistakes and omissions,” relating to Mangold’s employment history and educational background.
6. The fact that his 1972 conviction for possession of marijuana resulted in a suspended imposition of sentence was omitted from the report.
A copy of the presentence report was furnished to Mangold prior to sentencing. At the sentencing hearing Mangold testified that his earlier conviction for possession of marijuana had resulted in a $125 fine and that, according to his understanding, he was entitled, after one year, to have the conviction set aside.
In addition, Mangold testified as to the details of his educational background and employment history, thus correcting the “factual mistakes” and supplying the information necessary to cure the “omissions” which he alleges were contained in the presentence report. He further testified that he “had absolutely
no knowledge” of the alleged threatening of a witness. As to these matters, the state presented no contrary evidence, nor did it argue to the contrary in making its sentence recommendation to the court.
In addition, Mangold called three witnesses to the stand who testified, generally, that they had known him for a considerable length of time, that they believed him to be trustworthy, and that, prior to his arrest, they had no knowledge that he was involved in the drug trade or that he ever used drugs. Mangold also testified that he only sold cocaine to help an injured friend, that he did not do so to make a profit for himself, that he was sorry that he had become involved with cocaine, and that he would never again engage in such activities.
Otherwise, Mangold made no effort to challenge the accuracy of any of the statements contained in the presentence report. He failed to object to the contents of the report at the time of sentencing; failed to ask for the opportunity to examine, under oath, the author of the report, or any other person whose statement was included in the report; made no motion to strike any portion of the report; and, except as already noted, failed to offer any evidence to contradict, explain or otherwise rebut the materials contained in the report. Such being the case, “he is now foreclosed from raising such issues.”
Nukapigak v. State,
576 P.2d 982, 984 (Alaska 1978),
quoting People v. Chi Ko Wong,
18 Cal.3d 698, 135 Cal.Rptr. 392, 557 P.2d 976, 993 (1976).
C.
Length of Sentence
Mangold’s final contention is that the sentence imposed is overly severe, in light of the nature of the crime, his past record and character, and society’s need to protect itself. He argues that a substantially lesser sentence would adequately fulfill the goals of sentencing.
In selecting its sentence, the superior court carefully weighed the appropriate sentencing criteria, and gave explicit reasons for its decision.
See State v. Chaney,
477 P.2d 441, 444 (Alaska 1970). On the whole, we are unable to say that the court was clearly mistaken in imposing the sentence that it did. Accordingly, its sentence must be affirmed.
McClain v. State,
519 P.2d 811, 813-14 (Alaska 1974).
We note, however, that in imposing sentence thej trial court emphasized that if the alternative of imprisonment as a condition of suspending the imposition of sentence, pursuant to AS 12.55.085(a),
were available, it would “examine very closely the advisability” of that disposition. But the court correctly determined that that alternative was not available to it under our holding in
Boyne v. State,
586 P.2d 1250 (Alaska 1978).
Subsequent to the sentencing hearing, the state legislature added to the statutory scheme a new provision, AS 12.55.086,
authorizing imprisonment as a condition of
probation granted under a suspended imposition of sentence. The legislation became effective May 2, 1979. Mangold was sentenced on March 8, 1979. Because Man-gold’s attorney specifically requested that his client be given a suspended imposition of sentence and because the trial court indicated it would have a favorable attitude toward that approach, if prison time could be imposed as a condition of probation, we believe that the case should be remanded for the trial court to consider that alternative in light of the subsequent legislative action. Mangold’s case is therefore remanded for that purpose.
REMANDED for the purpose stated. Otherwise, the judgment is AFFIRMED.