State v. Abraham

566 P.2d 267
CourtAlaska Supreme Court
DecidedJune 8, 1977
Docket3171
StatusPublished
Cited by19 cases

This text of 566 P.2d 267 (State v. Abraham) 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
State v. Abraham, 566 P.2d 267 (Ala. 1977).

Opinion

566 P.2d 267 (1977)

STATE of Alaska, Appellant,
v.
Mickey ABRAHAM, Appellee.

No. 3171.

Supreme Court of Alaska.

June 8, 1977.

Victor C. Krumm, Asst. Dist. Atty., Bethel, Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellant.

Myron Angstman, Asst. Public Defender, Bethel, Brian Shortell, Public Defender, Anchorage, for appellee.

Before BOOCHEVER, C.J., RABINOWITZ, CONNOR and BURKE, JJ., and DIMOND, J., Pro Tem.

OPINION

RABINOWITZ, Justice.

The State of Alaska brings this sentence appeal from a judgment and order of probation which was entered by the superior court.[1] Mickey Abraham was indicted for the crime of manslaughter in violation of *268 AS 11.15.040.[2] The indictment alleged, in part, that Mickey Abraham "did unlawfully and feloniously kill one Sophie Abraham by beating and injuring her about the head and body and thereby causing her death." Trial was commenced in Bethel before Judge James A. Hanson but due to difficulties encountered in empaneling a petit jury, venue was changed to Anchorage. Thereafter, Mickey Abraham entered a plea of nolo contendere to the charge of manslaughter before Judge Edward V. Davis. After a presentence investigation was conducted and presentence reports filed, appellee Abraham was sentenced by Judge Hanson to 5 years imprisonment with 4 years suspended. During the 4-year period, Abraham was placed on probation subject to certain conditions, one of which was that he totally refrain from the consumption of alcoholic beverages. The superior court further ordered that Abraham was to be considered ineligible for parole during the entire 1-year period of imprisonment.

In this sentence appeal the state takes the position that the superior court's sentence was too lenient in light of the nature and circumstances surrounding the commission of the homicide, Mickey Abraham's past history of violence and physical harm to others while intoxicated, and the need to give appropriate weight to the sentencing goals of deterrence and maintenance of respect for the law's prohibitions against the taking of a human life. Before explaining our reasons why we believe the sentence in the case at bar is too lenient, we think it appropriate to discuss several aspects of both the sentencing proceedings and the events which formed the prelude to Abraham's decision to enter a guilty plea.[3]

We first address the sentencing proceedings. In Nattrass v. State, 554 P.2d 399, 402 (Alaska 1976), this court stated:

We consider this an appropriate occasion to remind the trial courts of Alaska of the importance of the defendant's right of allocution. In order to ensure that this right is implemented, the sentencing court must comply with the requirements of Criminal Rule 32(a) and unequivocally bring home to the defendant that he has the right to make a statement in his own behalf and to present any information in mitigation of punishment.[4] (footnote omitted)

The record we have in the instant case fails to disclose that the superior court complied with Criminal Rule 32(a) by affording Mickey Abraham the opportunity to make a statement in his own behalf.[5] We therefore consider this an appropriate occasion to remind Alaska's sentencing courts that Criminal Rule 32(a) must be complied with in the course of fulfilling their sentencing functions.

We next turn to the proceedings which preceded the sentencing hearing and the superior court's imposition of sentence. During the sentencing hearing, counsel for Abraham remarked:

This case has been discussed very extensively off the record in chambers and the thoughts of all 3 parties to this sentencing operation have been expressed time and again in chambers and I'm not going to bore the court rehashing many of the things I've suggested in chambers before simply because I know the court is aware *269 of them and I know the court is taking them into consideration... .[6]

In our recent opinion in State v. Buckalew, 561 P.2d 289 (Alaska 1977), this court took note of the grave problems the absence of a record can generate and commented:

We recognize that it is a common practice in the trial courts to conduct informal conferences in chambers. So long as all parties are in attendance or adequately represented, so as to avoid improper ex parte communications, there is nothing wrong with this practice... . Nevertheless, in most cases a record should be made of such conferences.[7]

The fact that extensive unrecorded in-chambers conferences were held in the case at bar could have had potentially serious repercussions. The record discloses that during the early stages of the abortive attempt to empanel a jury, the superior court advised respective counsel in chambers that if the defendant entered a guilty plea he would receive a maximum sentence of 5 years. The record further reflects that the next day the court advised the respective counsel, again in chambers, that Abraham could expect a sentence of no more than one year unless new facts came to the court's attention. At the sentencing hearing the superior court alluded to these discussions.[8] More particularly, the court stated:

I'm afraid this record is going to reflect — and there's not one thing I can do about it — that I was attempting to get Mr. Abraham to plead guilty by reducing whatever thoughts I had from 5 to one. I don't remember having done that. I certainly don't deny it. Both counsel remember it. I do not.

On the very day that the sentencing proceedings were held in the case at bar, this court handed down its decision in State v. Carlson, 555 P.2d 269 (Alaska 1976). There we granted a writ of prohibition barring the superior court from accepting a plea of guilty to the crime of manslaughter. Our decision was based, in part, on the fact that the trial judge had engaged in plea bargaining. In State v. Carlson, we said:

We are also concerned that a judge's involvement as plea negotiator would detract from the judge's neutrality, and would present a danger of unintentional coercion of defendants who could only view with concern the judge's participation as a state agent in the negotiating process.[9] (citation omitted)

*270 More recently in State v. Buckalew, 561 P.2d at 292, we concluded that "henceforth Alaska's trial judges shall be totally barred from engaging in either charge or sentencing bargaining."[10] The instant record affords an apt occasion to reiterate the judicial plea bargaining bar enunciated in State v. Buckalew.[11]

We now turn to the only question in this appeal which has been presented in an adversary fashion, namely, whether the superior court's sentence of 5 years with 4 suspended for the crime of manslaughter was too lenient when measured by our review standard of "clearly mistaken."[12] In regard to the legislature's grant of appellate jurisdiction providing for review of lawful sentences,[13] we said in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970):

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Bluebook (online)
566 P.2d 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abraham-alaska-1977.