Mangold v. State

613 P.2d 272, 1980 Alas. LEXIS 582
CourtAlaska Supreme Court
DecidedJune 27, 1980
Docket4678
StatusPublished
Cited by7 cases

This text of 613 P.2d 272 (Mangold v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mangold v. State, 613 P.2d 272, 1980 Alas. LEXIS 582 (Ala. 1980).

Opinion

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 *274 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.” 1

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.” 2

*275 3. In addition, such statements contained “unsubstantiated allegations which would not have been sufficient for obtaining a mere search warrant.” 3

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].” 4

5. The presentence report contained “material factual mistakes and omissions,” relating to Mangold’s employment history and educational background. 5

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Related

State v. Stafford
129 P.3d 927 (Court of Appeals of Alaska, 2006)
Harris v. State
678 P.2d 397 (Court of Appeals of Alaska, 1984)
Qualle v. State
652 P.2d 481 (Court of Appeals of Alaska, 1982)
Zurfluh v. State
620 P.2d 690 (Alaska Supreme Court, 1980)

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Bluebook (online)
613 P.2d 272, 1980 Alas. LEXIS 582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mangold-v-state-alaska-1980.