Strachan v. State

615 P.2d 611, 1980 Alas. LEXIS 719
CourtAlaska Supreme Court
DecidedAugust 22, 1980
Docket4901
StatusPublished
Cited by26 cases

This text of 615 P.2d 611 (Strachan 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
Strachan v. State, 615 P.2d 611, 1980 Alas. LEXIS 719 (Ala. 1980).

Opinions

OPINION

BOOCHEVER, Justice.

Anchorage police officers arrested Gerald Strachan and his wife on charges of selling and possessing cocaine. The arrests stemmed from a series of purchases for a total sum of approximately $1,400 made by an undercover police agent during a three-week period in the summer of 1978. Stra-chan was indicted for possession of cocaine and for the sale of one-fourth ounce of cocaine on July 13. Strachan’s wife was charged with four sales in similar “retail” quantities and she plead no contest to two charges.1 Both Strachans had evidently been involved in a continuing small-scale cocaine sales operation out of their house in Anchorage over a substantial period of time.2 Strachan was convicted on two counts in the indictment and was sentenced to seven years’ imprisonment for sale of cocaine and three years’ imprisonment for possession.3 The sentences were to run concurrently, and Strachan has appealed the seven-year term.

Strachan makes three arguments in support of his claim that the sentence is excessive. First, he argues that his conduct was not sufficiently serious within the class of drug offenses. Second, he argues that his personal characteristics do not warrant the severe sentence. Third, he argues that the sentence is so out of proportion compared to that received by his wife as to be unjustifiable.4

Strachan notes the Waters5 classifications of drug offenses and claims that the nature of the drug involved further affects the gravity of the offense. See Johnson v. State, 577 P.2d 230, 235 n.11 (Alaska 1978). Using these guidelines, Strachan says he is a Class II offender and that within that class his crimes are not so grave because they involve cocaine. Thus, he claims, the penalty imposed was, in effect, the maximum for the crime.

[613]*613Our prior opinions make it clear that the Waters criteria are simply one element of many factors relevant to a particular sentencing decision. Waters does not say that ranking the seriousness of offenses creates, de facto, a descending order of maximum sentences within each class. See, e.g., Whitton v. State, 533 P.2d 266 (Alaska 1975); Tarnef v. State, 492 P.2d 109 (Alaska 1971). Strachan’s argument that the nature of the offense by itself imposes an upper limit on the sentence is a misconception. In fact, in Waters itself we affirmed a ten-year sentence for a single sale of a small quantity of cocaine because the appellant was also guilty of robbery. 483 P.2d at 202. Waters means only that, other things being equal, the gravity of a drug offense should affect sentence length, but we are unable to conclude from consideration of the nature of the offense alone that Stra-chan’s sentence is excessive. We have often indicated that the unauthorized sale for profit of controlled substances merits a great deal of concern.6 The size of the sale and the drug involved must be considered with other factors.7

Strachan next contends that his personal characteristics do not justify the severe sentence. He notes his good employment record, military service, and efforts to care for his six children.8 Furthermore, he says, a term in excess of five years is not justifiable under Donlun v. State, 527 P.2d 472 (Alaska 1974). Additionally, he alleges that it was clearly erroneous for the judge to take into account his belief that Strachan had lied on the witness stand except insofar as that conduct is relevant to the likelihood that Strachan may continue his criminal conduct. Finally, he argues that the judge failed to consider the need for and possible effects of alcohol and drug rehabilitation.

In our opinion, the trial court’s action in augmenting the sentence for perceived perjury was, under the facts of this ease, reversible error. It is true that a sentencing judge “may take into account his belief that the defendant committed perjury at trial.” Fox v. State, 569 P.2d 1335, 1338 (Alaska 1977). But the sentence which is imposed must be for the underlying offense, not for perjury. To automatically enhance a sentence as a sanction because of the judge’s belief that perjury was committed is improper. In United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582 (1978), the court refers to “the impermissible sentencing practice of incarcerating for the purpose of saving the government the burden of bringing a separate and subsequent perjury prosecution.” 438 U.S. at 53, 98 S.Ct. at 57 L.Ed.2d at 591. The case, however,

reaffirm[s] the authority of the sentencing judge to evaluate carefully a defendant’s testimony on the stand, determine— with a consciousness of the frailty of human judgment — whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society.

438 U.S. at 55, 98 S.Ct. at 2618, 57 L.Ed.2d at 592. See United States v. Wise, 603 F.2d 1101, 1105 (4th Cir. 1979).

In this case, the remarks of the sentencing judge and the size of the additional penalty indicate that the sentence was enhanced as punishment for the alleged perjury, and not because the alleged perjury might have been used as an indication of [614]*614Strachan’s potential for rehabilitation.9 We therefore deem it necessary to vacate the sentence and remand for resentencing.

Because the dividing line between permissible and impermissible sentencing practice in this respect is so subjective, we furthermore are of the opinion that, in cases where a sentencing judge believes that perjury has occurred, he should state the manner in which the perceived perjury relates to his selection of sentence.

Since this case must be remanded, we will comment on one other aspect of the appeal which is relevant to a determination of whether the sentence is excessive. We have often observed that a sentence in excess of five years should be given only in cases involving particularly serious offenses, dangerous offenders, and professional criminals. Donlun v. State, 527 P.2d at 475. This particular offense does not fall into the most serious category of drug offenses and would therefore not in itself warrant more than five years’ imprisonment.10

When consideration is given to Stra-chan’s military and employment records, his contributions as a parent and the absence of a criminal record for the past twenty years,11 the sentence should not exceed five years’ imprisonment.

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Strachan v. State
615 P.2d 611 (Alaska Supreme Court, 1980)

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Bluebook (online)
615 P.2d 611, 1980 Alas. LEXIS 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strachan-v-state-alaska-1980.