*1 level. rior court Such right no Halligan afforded challenge.
peremptory AFFIRMED. Justice, concurring. Chief my
For the stated in dissent reasons Entry Commission v. Fisheries Commercial Polushkin, 2300, (Alaska, Op.No. Feb.
1981), I would apply general rule that any party requested permission where submit additional evidence on appeal, or superior where the court has decided sponte any aspect sua to review of the case novo, any appeal de then party to has a challenge, to a peremptory unless party has previously exercised that particular
and thus exhausted it for that proceeding.
Here, there is indication the record no permission to sub- any party requested evidence, mit additional intention to review expressed any Thus, I aspect of the case de novo. that no with the court’s conclusion challenge attached here. peremptory Polushkin, However, would extend any party on remand if does request additional evi- make a to submit dence. LAW, Appellant,
Jay Lowell Alaska, Appellee. STATE of No. 4552. *2 Cook, Larry
William D. Atty., Asst. Dist. Weeks, Av- Atty., R. Dist. Anchorage and Gen., Juneau, Gross, appellee. for Atty. rum J., C. MATTHEWS, JJ., and DI- BURKE and MOND, J., Justice. [BOOCHEVER, Senior participating.] not
OPINION
PER CURIAM. One Jay Law problems. had financial to sole his tried day January checks,1 and found problem by kiting money legal problem with a in the form of himself a five-count indictment. nolo contendere to five pled He was five concur- larceny.2 sentenced to appeals rent terms.3 He tences.
At lengthy raised which presented testimony the state had, while strong inference sentencing, forgery.4 awaiting committed pending were Charges on incident on the sentencing, the time attorney, no statement advice of his made forgery. deny explain evidence less testimony raised a somewhat Other attempt inference of a further compelling a bad check fraudulently pass Law to interim between his arrest during the Defender, Heller, Asst. Bruce Public explanation for conviction. Law offered no Shortell, Defender, Anchorage, Brian Public admitted illegality. appearance appellant. he had submitted false unsuccessfully trying check-kiting very to cash a check 1.Law’s suc- scheme was opened checking cessful. He account accounts. one of these A(l) $100 Bank with a on a closed check checking account at went to writing Bank B. He then AS 11.20.230 or at- 2. Former defined C(l) deposited existing Bank tempting in an account cash a to defraud check with intent A(l) writing larceny. two checks one on the account new Bank Law was convicted for checks, separate passing and one on the closed B account. Bank with a face Bank five each C(l) gave $250. check which over cashier’s amount D, opening took to Bank new account another receiving C(2) $50.00 Bank cash. At former checks, deposited existing in an account three is one to ten a violation of drawn on the closed and the Bank B account . face of the check .. “if the amount newly opened A(l) accounts and D. at Banks $250.” exceeds D(2) gave Bank him a check in an cashier’s mistakenly printed amount which it as zero testimony implication 4. The A(2) accidentally dollars. Law next went Bank and de- payroll checks four had checks, posited Anchorage post two on the closed one drawn mailed to in or C(l) Bank B account and one on the new Bank that he them to himself office box and endorsed day deposited account. same arrested that them in own bank account. length the had criteria he loan on which he bank to obtain a in order he had made. subsequently defaulted.5 the choice that, the sen- argues first because hold under Criminal Rule We him his inform tencing judge must be afford the sentence must *3 un ed when he testifies a defendant even The state the case remanded. vacated and As we stated der counsel. by examination at the extensively *4 are we that the sentences believe is more than years mistaken. Three clearly TRAD, Appellee. Dimitri N. equal twice the median term and out ten sentences meted longest term of the No. and 1976.9 for this offense between 1974 code, Law’s criminal Under the current maximum would have resulted in a crimes likely would have been years of two
reduced.10 the sentence and remand for
We reverse impris- resentencing. The total sentence Wheth- years. onment shall not exceed two should any period er or not of incarceration probation suspended and Law suspension is within during period such sentencing court. the discretion of the and REMANDED. REVERSED BOOCHEVER, J., participating.
BURKE, Justice, whom with Justice, joins, dissenting part. me that the persuade fails to
The record mistaken in im- clearly court was thus, terms posing year concurrent three the court’s am unable misdemeanors, respectively. pre- long- B The college, sporadically but his attended offender, range goals sumptive and uncertain. a second are confused sentence for such, years. is two See AS 12.55.- if Law was Council, Felony Alaska 9. See Alaska Judicial 125(e), aggravating None of the AS 12.55.135. Patterns, Sentencing A Multivariate Statistical apply, mitigating but two factors factors would Analysis (1974-1976), p. Table I at 12.55.155(c); applicable. See are —.55(d)(3), (9). criminal Under the current code, is- the new criminal code, then, offense would Law’s most serious suance of these five checks would have been charged of two resulted in a maximum as one theft in the third de- therefore have count of misdemeanor, gree, likely B reduced. a Class and five would check, issuing clearly a bad three of the counts would sentences Consecutive being A Class C felonies and two Class kiting inappropriate, was a scheme since .140(1) misdemeanors. See involving multiple episode, although single of- — —.280(c)(3), (d)(2) (3). maximum fenses. felonies, terms would be five for the three year ninety days A and one on the Class notes Law testified that 399, State, 402 in v. 554 P.2d Nattress hearing that the admit- sentencing says and v. (Alaska 1976), in Mohn and reiterated a right ted to inform him of to failure 1978): State, 40, (Alaska 584 P.2d 44 imposi- to the immediately prior to In order ensure [of tion of is harmless. sentence therefore sentencing the implemented, is allocution] by examination his counsel Under direct comply requirements court must with the spoke at the at 32(a) unequivocally of and Criminal Rule problems, some on his his length personal he has bring home to the defendant that law, the the having remorse for violated his own statement in the to make a hopes experienced, frustrations he had his in information present any and to behalf strengths his and weak- expectations, punishment. of mitigation nesses, intelligence, plans his for the his be Despite the fact that repre- counsel by future. The examination counsel, at ing by examined his testified response Law and the to the senting latter’s ex under the length, we believe that to questions put appear to him the Mohn case plicit requirements of the designed encompass things might to the comply with the failure of the court to had he the of said been afforded Rule was requirements of Criminal required by Criminal Rule be re error. The case must harmless 32(a).6 superior court resentenc- manded to the But to make state- “opportunity the ing court is to afford “at which time the ment present in his own behalf and to infor- opportunity the to make a state appellant gen- mitigation punishment”7 mation in of present any own and to ment in his behalf erally different from the significantly is mitigation have in may information that he opportunity respond questions to to the State, v. 584 P.2d punishment.” Mohn In this afford- counsel. 40, (Alaska 1978). 45 asking ed Without opportunity at all. light speak next reviews the sentences prior Law whether he wished to to crime, sentence, the defendant’s mere- of the nature imposition character,8 pub- explained protect the need to ly sentenced and then 32(a) provides part: concerning Rule 5. We Criminal note that the information by properly these other events was the district established imposing af- sentence the court shall attorney through testimony at the opportunity ford the defendant an to make a sentencing hearing, subject to cross-examina present in his behalf to statement own by given opportunity tion respond Law. was an to mitigation punishment. information in allegations to the and his failure to do following If the defendant is sentenced against so not violate his self-incrimi plea guilty nolo contendere the State, 952, Morgan See 598 P.2d 953 nation. v. question shall the defendant ascertain State, (Alaska 1979); Nukapigak v. 576 P.2d meaning plea he understood the (Alaska State, 1976); Layland 982 v. 549 P.2d voluntarily freely it was entered. 1182, (Alaska 1976). The 1183-84 was court as the lower it related Id. im the crime before the court. term posed at the of the not a for these al was 20 old time other been, leged crime, years ago. crimes. Had im more than two He has a it posed improper juvenile property crimes for which would have and reversal record of facility required Pyrdol juvenile at a detention would be that reason. See served time State, 513, employed (Alaska 1980); v. he has been 617 P.2d Stra 1973. In recent 515 State, entry (Alaska variety jobs operate chan 615 v. 613-14 level tried to P.2d 1980). limited He order business with success. mail 287 State, 91 was excessive. v. 519 State, P.2d tenee McClain v. lic. Benefield See Chaney, (Alaska 1974). 477 P.2d 1977); P.2d 811 (Alaska State 1970). concludes the (Alaska concur, Otherwise I imposed. the term justify factors do not property nonviolent This was a loss to a resulted in a minimal crime which Law has demon victim. While corporate irresponsible course socially strated a conduct, pose a threat appear he does not view of the nature safety. In public offense, of the offend of the the character er, public protecting and the need for ABADOU, Appellant, Jean-Marc