Wharton v. State

590 P.2d 427, 1979 Alas. LEXIS 479
CourtAlaska Supreme Court
DecidedFebruary 16, 1979
Docket3380
StatusPublished
Cited by23 cases

This text of 590 P.2d 427 (Wharton 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
Wharton v. State, 590 P.2d 427, 1979 Alas. LEXIS 479 (Ala. 1979).

Opinions

OPINION

BOOCHEVER, Chief Justice.

In this sentence appeal, appellant Wharton challenges the superior court’s imposition of sentence as being excessive.1 Wharton entered a plea of guilty to one count of possession of cocaine, a violation of AS 17.-10.010,2 and was sentenced to one year imprisonment with no time suspended. We hold that Wharton’s sentence is excessive.

The events leading to the appellant’s arrest are not in dispute. On October 8,1976, at Bushy Bob’s in Alyeska’s Glennallen pipeline camp, two Alaska State Trooper investigators met an individual named Wynn3 who stated he would sell them cocaine at $150.00 per gram. The next evening the investigators arrived at the camp to meet Wynn. After finding him, the investigators were introduced to Wharton. The investigators stated that they were still interested in buying some cocaine. When Wynn left the room to get the cocaine, Wharton continued conversing with the investigators about the cocaine to be purchased and produced a small quantity. Wynn returned to the room with two packets of cocaine and the officers paid for it with three marked one hundred dollar bills. Two backup officers then entered the room and placed Wynn and Wharton under arrest.

Before we consider whether Wharton’s sentence is excessive, we address an issue not raised by the parties on appeal: whether this court has jurisdiction to review a sentence of one year or less.

In Bear v. State, 439 P.2d 432 (Alaska 1968), Alaska’s then three-justice supreme court held, over a dissent by Justice Rabi-nowitz, that we had no jurisdiction to review criminal sentences absent statutory authorization. Justice Rabinowitz concluded that in the past, the court had reviewed sentences, and that the constitutional grant to this court of “final appellate jurisdiction,” Alaska Constitution art. IV, § 2, included the power to review criminal sentences. Id. at 437 — 41. The basic point of the dissent was that “[sentencing is a discretionary judicial function and the judiciary itself should have the power to correct abuses of discretion.” Id. at 440 [footnote omitted].

After the Bear decision, the Alaska legislature in 1969 recognized jurisdiction of the court to entertain sentence appeals. AS 22.05.010(b) states:

The supreme court has jurisdiction to hear appeals of sentences of imprisonment lawfully imposed by the superior courts on the grounds that the sentence is excessive or too lenient and, in the exercise of this jurisdiction, may modify the sentence as provided by law and by the constitution of this state. For the pur[429]*429pose of considering appeals of sentences on these grounds, the supreme court may sit in divisions.

It is to be noted that the sentence appeal jurisdiction was not limited in any way by this provision.

At the same time, the legislature conferred on defendants a limited a right to appeal sentences of imprisonment exceeding one year.4 In 1976, we promulgated Appellate Rule 21(a) which provides:

At the time of imposition of any sentence of imprisonment of 45 days or more, the judge shall inform the defendant . [t]hat the sentence may be appealed to the supreme court on the ground that it is excessive, [emphasis added]

Wharton received a sentence of one year imprisonment. If AS 12.55.120 were the only source of our authority for sentence review, Wharton would be unable to appeal because his sentence does not exceed one year. Appellant Rule 21, however, clearly permits Wharton’s appeal. In promulgating Rule 21, this court accepted Justice Ra-binowitz’s position in Bear that review of criminal sentences is inherent in our power as the court of “final appellate jurisdiction,” Alaska Constitution, art. IV, § 2-5

Nevertheless, our action is not in conflict with the statute. By AS 22.05.-010(b), the legislature statutorily recognized the jurisdiction of this court to hear appeals of sentences without qualification. It conferred on convicted defendants a limited right of appeal of sentences. In the exercise of this court’s inherent and statutory jurisdiction to entertain appeals, we have expanded that right by means of Appellate Rule 21.

We now turn to whether Wharton’s sentence of one year imprisonment was excessive.

At the time of the offense, Wharton was eighteen years old. He had no prior criminal record. His employment history was good. He had been in Alaska only a few months prior to this offense, working' at his first full-time job since graduating from high school. Contact with authorities in Louisiana, where Wharton had previously lived, revealed Wharton’s high school record. He was an average student who was not a “trouble maker” and had no serious problems. Moreover, the Louisiana probation and parole department stated that the department would be willing to supervise him if he were placed on probation.

With respect to Wharton’s use of cocaine, the record indicates that it was very limited. Wharton told the author of the pre-sentence report, T. K. Purbush, that he had used cocaine on three or four occasions. Elliott — Wynn, in the transaction that led to the arrest — told Furbush that, to his knowledge, Wharton had never sold any drugs. The state did not dispute the fact that Wharton was a relative newcomer to the drug world. At the time of his arrest, Wharton had in his possession less than two-thirds of a gram of cocaine.

Purbush’s pre-sentence report concluded:

Overall, the defendant was viewed as honest and cooperative.
Mr. Wharton appears to be an individual who has maintained an acceptable lifestyle until just recently; and, he may, with supervision and direction, be dissuaded from further incidents of this nature. Possibly, he may well be discouraged from the use of drugs altogether.

[430]*430Furbush recommended that Wharton be granted full probation. Wharton’s counsel asked for a suspended imposition of sentence pursuant to AS 12.55.085.6 The state’s attorney agreed with Wharton’s attorney. Nevertheless, the sentencing court rejected a suspended imposition of sentence or full probation and imposed a sentence of one year.7 The standard for sentence review is whether the sentencing court was “clearly mistaken.” 8 We conclude that the imposition of a one-year sentence of imprisonment on Wharton was clearly mistaken.

In Davis v. State, 577 P.2d 690, 693 (Alaska 1978), we reiterated the four classifications of drug offenders whose crimes are in descending order of seriousness:

1. Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.

2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.

3. Possession of narcotics without intent to sell.

4. Marijuana offenses.

Wharton fits within category three and is at the least serious end of that category. He possessed less than two-thirds of a gram of cocaine. Furthermore, although in State v.

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Wharton v. State
590 P.2d 427 (Alaska Supreme Court, 1979)

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Bluebook (online)
590 P.2d 427, 1979 Alas. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wharton-v-state-alaska-1979.