Strachan v. State
615 P.2d 611
Alaska
1980
Check Treatment

*1 court does basically factual. This tion ordinarily reverse a factual determina- Alaska unless it is erroneous.

tion 52(a). an

Rule of Civil Procedure Such to exist where we have

error is said a mistake firm conviction that

definite and My been made.1 examination of the not left me with such

record in this case has

a conviction. STRACHAN, Appellant,

Gerald Alaska, Appellee.

STATE of

No. 4901.

Supreme of Alaska.

Aug. See, City e.g., Anchorage, Steward v. P.2d *2 of in operation sales out their house

cocaine period a of Anchorage over substantial on time.2 Strachan was convicted two was sentenced counts in the indictment and years’ imprisonment to for sale of seven Grebe, Luce, Gregory Kelly J. & Anchor- years’ imprisonment for cocaine and three age, appellant. for run possession.3 The sentences were to con- currently, appealed the and Strachan Scukanec, A. Atty., John Asst. Dist. Lar- seven-year term. ry Weeks, Atty., R. Dist. Anchorage, and Gross, Gen., Juneau, Avrum M. Atty. for arguments sup- in Strachan makes three appellee. is port of his that the sentence exces- claim RABINOWITZ, J., C. and CON- Before First, argues sive. his conduct was he that BOOCHEVER,* BURKE, and NOR, MAT within sufficiently serious the class of THEWS, JJ. Second, argues he that his offenses. personal do not warrant characteristics the OPINION Third, argues severe he that the BOOCHEVER, Justice. proportion compared sentence is of to so out Gerald arrested Anchorage officers police unjustifia- as to by that received wife selling charges of wife on and his Strachan ble.4 arrests The cocaine. possessing and for a purchases of a series stemmed from *3 perjury State, at trial.” Fox v. State, (Alaska Whitton v. 533 P.2d 266 1335, 1338(Alaska 1977). But the sentence 1975); State, (Alaska Tarnef v. 492 P.2d 109 which is imposed underly must be 1971). the na argument Strachan’s that ing offense, for perjury. not To automati imposes ture of the offense itself an cally enhance a sentence as a sanction be upper misconcep limit on the sentence is a cause of the judge’s perjury belief that fact, tion. In in Waters itself we affirmed improper. committed is In United States v. ten-year single sentence for a sale of a 41, 98 2610, 2617, 438 U.S. S.Ct. 57 appel small quantity of cocaine because the (1978), L.Ed.2d 582 the court refers to “the robbery. lant was also 483 P.2d at guilty impermissible sentencing practice of incar that, only things Waters means other cerating for the purpose saving being equal, drug gravity of a offense government bringing the burden of sepa length, should affect sentence but we are rate and subsequent perjury prosecution.” unable to from conclude consideration of 53, 98 438 at at U.S. S.Ct. 57 L.Ed.2d at 591. the nature of the offense alone that Stra- case, however, The chan’s sentence is excessive. We have of ten indicated that the unauthorized sale for authority sentenc- reaffirm[s]

profit of controlled substances merits a ing judge carefully to evaluate a defend- great deal of concern.6 The size of the sale stand, testimony ant’s on the determine— and the involved must be considered with frailty a consciousnessof the of hu- with other factors.7 judgment man testimony that —whether Strachan next contends personal that his falsehoods, contained willful and material characteristics justify do not the severe sen- and, so, light if assess in of all the other tence. He good employment notes his rec- knowledge gained about the defendant ord, service, military and efforts to care for meaning respect of that conduct with Furthermore, his six says, children.8 he prospects to his for rehabilitation and res- term in excess years justifia- of five is not toration place society. to a useful State, ble under Donlun v. 527 P.2d 472 at at 57 L.Ed.2d (Alaska 1974). Additionally, alleges he Wise, 592. See United States 603 F.2d judge it was erroneous for the (4th 1979). Cir. take into account his belief that Strachan case, In this the remarks of the sentenc- had except lied on the witness stand insofar ing judge and the size of the additional as that conduct is relevant to the likelihood penalty indicate that the sentence was en- that Strachan continue his criminal punishment hanced as Finally, alleged perju- conduct. for the argues judge he that the ry, failed to consider the and not possible alleged perjury need for and because the effects of alcohol might rehabilitation. have been used as an indication of (Alaska 1978); 6. Davis v. 577 P.2d 690 8. Between 1956 and Strachan was con (Alaska twice, 1976); battery Wolfe v. 553 P.2d 472 victed of assault and as well as disorderly conduct, forgery, burglary Thurlkill v. not dwelling. spent jail in a He some time in charge, the last but since then has had no Despite convictions other than a 1973 conviction for substantial sales of the driving time, while In he period intoxicated. recent over a considerable he professional has earned a substantial income as an electri does not seem to be a in that he cian, currently supports and he six primary a wife and did not use his criminal activities as a prior marriages. support. minor children from this and source of imprisonment. We this conclu- years’ reach We potential rehabilitation.9 al- evaluating Strachan’s necessary sion even while deem it to vacate therefore pros- his resentencing. leged might as it relate to perjury and remand for restoration to pects for “rehabilitation and dividing line between Because the place society”12 and the fact a useful sentencing impermissible permissible was found with concealed that Strachan we subjective, so practice respect in this while on bail. weapon that, opinion are of the furthermore judge believes cases where a also contends that Strachan occurred, should state perjury he that of his sentence and disparity between perceived manner in which the unjustifia as to be is so irrational wife relates to his selection of sentence. other sentences can Comparison with ble. remanded, must this case be Since of a sen determinative aspect will comment on one other we two theoretically While de appeal.13 tence ato determination appeal which is relevant *4 backgrounds should identical fendants with is We whether the sentence excessive. of sentences, many are like there too receive ex a sentence in have often observed that sentencing produce entering into to factors in years given only be cess of five should Nevertheless, a mechanical result. such particularly serious of involving cases be minimized sentencing in should disparity fenses, offenders, dangerous profession like offenders possible to the extent where State, 527 at criminals. Donlun v. P.2d al In this charged with crimes. are similar fall particular offense does not 475. This di indication that Strachan case there was drug of category the most serious into wife, which, his the activities of rected in itself and would therefore fenses backgrounds, in with the differences their years’ imprisonm more than five warrant sentencing, pending attitudes and conduct ent.10 in their sen justify disparity could imposition of the Subsequent to the given is tences. When consideration to Stra- however, case, records, sentence this military employment chan’s cases and narcotic sales parent guidelines and the absence for contributions as a Sentencing twenty have been established past record for a criminal by this appointed five the sentence should not exceed Guideline Committee years,11 two-year key sentencing judge’s an inference that the additional remarks in raises 9. The trial alone, Grayson punishment sentence was for the were as follows: merely considering aspect rather than indicated, my prison In view a sentence is with defendant’s overall charac- connection going and impose is to the sentence that potential. ter and rehabilitation Grayson, you, is deter to Mr. similarly Secondly, who are situated. others State, 199, v. 201-02 10. See Waters 483 P.2d my your is com- it view that defense was a 275, (Alaska 1971); v. Moreau slightest plete merit fabrication without the 1978). (Alaska 287 no- One commentator proper I feel it is for me whatsoever. peri- ticed that “incarceration for a substantial od sentencing, and 1 consider that fact in the single laws] violation will for [of so. will do generally inappropriate, offender unless the 2613, 44, L.Ed.2d at 438 at 98 S.Ct. at 57 U.S. (emphasis e.g., squarely category, the worst falls large-scale within added). im- The total sentence 586 posed Erwin, Five Years of wholesaler.” Grayson’s years was two consecutive Alaska, Sentence 5 UCLA—Alaska Review unexpired Grayson sentence. could have 1, (1975). 9 L.Rev. years. period up There sentenced for a to five is thus no indication that number driving while in- 11. Strachan was convicted of imposed Grayson was on 9, 1973, January for which he toxicated on perjury. All that is indicated his perjury suspended a fine and a received as a factor. In con- was considered stated, trast, Judge explicitly “For the Carlson 41, 55, Grayson, 98 12. United v. 438 U.S. States you lied the witness record the fact that stand is taken into account to increase (1978). L.Ed.2d 592 S.Ct. 57 been a five- sentence from what would have seven-year P.2d 1095 v. 600 This 13. Creer sentence to a sentence.”

615 fence Upon only court. remand the trial court was increased after the sentenc- ing give guide- judge carefully those considered wish to consideration to history and his failure to learn from his lines. words, past In other I mistakes.2 think the The sentence is vacated and the case RE- superior per- court did consider Strachan’s resentencing MANDED for in accordance jury potential “as an indication of for [his] opinion. with this rehabilitation.” BURKE, Justice, dissenting. I Since am not convinced that the court imposing otherwise mistaken in I respectfully dissent. years, a term of seven I affirm would Stra- United v. Citing States chan’s sentence. McClain v. (1978), L.Ed.2d majority it necessary deems to vacate and resentencing, remand for because “the re-

marks of sentencing judge and the size additional indicate that punishment was enhanced as

the alleged perjury, and not because the alleged perjury might have been used as an MILLER, Law, Attorneys A. Fred A potential indication of reha- Corporation, Petitioner, Professional This, believe, bilitation.” I amounts to an Grayson reading erroneous and a misin- terpretation superior PAUL, of the court’s Mary sentenc- Representative as Personal *5 ing remarks. Paul, of the Estate of Carl F. Respondent.

Unquestionably, sentence on charge was increased No. 5064. because the sentencing judge believed he had commit- Supreme Court of Alaska. ted perjury at his trial. But that is exactly Aug. practice approved the United United States v. Supreme States

Grayson, (1978).1 Moreover,

L.Ed.2d 582 the sen- Grayson, Ap- only things you’re being 1. In the United States Court of of. [T]he Circuit, peals, Third ordered the defendant’s possession sentenced for are the sale and vacated, sentencing judge sentence after the apparent you cocaine. . . . [I]t might added an increment to the sentence he you didn’t learn from the mistakes made imposed not otherwise have lieved the defendant had committed his trial. because he be- your youth you’d and from the fact that previously plus convicted of 2 serious crimes Fauver, Citing Poteet v. 517 F.2d 393 several others. That lesson is that crime is (3rd 1975), Appeals Cir. the Court of stated: wrong and that we learn from what we’ve done “Poteet mandates that no additional past in the and don’t it in do the future. Fur- imposed upon a defendant because the ther, you carrying while on bail committed judge trial believes that the defendant lied Therefore, weapon. you’re concealed because Here, testifying. Grayson’s while sentence was older, you’re not in need of vocational rehabili- unquestionably just increased for this reason. tation, little, you appear respect very the law sentence, therefore, His cannot stand.” United necessary impose significant it is sentence (3rd States v. 550 F.2d Cir. you in order to deter from unlawful conduct in certiorari, On the United States Su- you the future. And lied the wit- preme think, Significantly, Court reversed. I your ness stand in the course of trial I believe Court, Supreme for reinstate- “remand[ed] appropriate that it’s that the sentence be en- ment of the sentence of the District Court.” n . . degree. hanced to some . For the rec- 438 U.S. at 98 S.Ct. at 57 L.Ed.2d at ord, you the fact lied (emphasis added). on the witness stand is taken into account to increase the sentence remarks, judge 2. In his the trial year from what would have been a 5 stated: [Emphasis to a 7 added.] you’re being I want to make it clear sentenced nothing you else but what were convicted notes Strachan the Waters5 classifica $1,400 made approximately of total sum tions of and that the offenses claims a three- agent during police an undercover nature of the involved further affects of 1978. Stra- period in the summer week gravity of offense. See Johnson v. of cocaine possession for was indicted chan (Alaska 1978). 235 n.11 ounce of of the sale one-fourth and for Using guidelines, says these Strachan he is wife was July 13. cocaine on a II Class offender that within and that “retail” in similar charged with four sales grave class his are crimes not so to two plead no contest she quantities and Thus, claims, they involve cocaine. he evidently imposed was, effect, had Both Strachans charges.1 maxi continuing small-scale in a mum for crime. involved been * yéars offense, twenty case was to the court for This submitted ten for a first ten to for a prior resigna- offense, twenty forty years Boochever’s decision to Justice second and to for a tion. 17.10.010; See AS 17.10.- third offense. AS 200(a). prior drug As Gerald Strachan has no buys report, According presentence 1. to the convictions, penalty was to the authorized two ounce) (one $200 on June $550 for were years. ten Gonzales v. 582 P.2d 630 See gram) (two (one grams) on $100 June on ounce) .July July (one-fourth on and $550 allegation grams) July (two of 14. The $200 4. wife two concurrent received $550 for on June 27 incon- sale one-ounce three-year with two of each sentences one-quarter- allegation of' a with the sistent suspended. July price on 13. sale the same One ounce for approximately grams; one- ounce contains 5. Waters grams, quarter seven ounce is therefore following 1971), groups drug into the offenders price that the June structure indicates overall descending classifications order seri- four one-quarter ounce. must have been for 27 sale ousness: approximately Thus the total amount sold _ nineteen large quantities ounces._ Smuggling 1. or sale of large possession quantities the resi- for police searched who narcotics or 2. officers The sundry weighing devices sale. seized dence “cutting” Strachan packaging Smuggling quantities materials. or sale of small engaged having narcotics, quantities cocaine sales possession or of small admitted wife had and his for about friends to for sale. period. during that sold cocaine also without intent to 3. Possession narcotics sell. prescribes penalties 3. Alaska law the same Marijuana offenses. cocaine, possession as for the sale of two prior opinions opinion, Our make it clear In our the trial court’s ac simply Waters criteria are one element tion in augmenting the sentence per many relevant factors was, ceived perjury under the facts of this say decision. Waters does not ease, reversible error. It is true that a ranking cre seriousness of offenses sentencing judge “may take into account ates, facto, de descending order of maxi his belief that the defendant committed See, e.g., mum sentences within each class.