McCombs v. State

SINGLETON, Judge,

concurring and dissenting.

McCombs was convicted in federal court of sale of a substantial quantity of cocaine and received an eight-year sentence. He was also sentenced in state court for two separate sales of lesser amounts of cocaine and received two consecutive four-year sentences with the second four-year sentence suspended. The difficulty in this case is that the state-imposed eight-year sentence was made consecutive to McCombs’ federal sentence; therefore, he faces a total sentence of sixteen years with four years suspended. The majority assumes that the total sentence, including both state and federal increments, must be evaluated under Alaska sentencing criteria, as if the total sentence were imposed in an Alaska court. See Neal v. State, 628 P.2d 19, 21 n. 7 (Alaska 1981) (“[wjhere, as here, the consecutive term is to be added to a sentence imposed by a court of another jurisdiction, the combined sentences should not exceed any limitations which would be in effect had both sentences been imposed under Alaska law”). The majority’s assumption seems to be a correct reading of Neal.

Under Alaska law, McCombs’ most serious offense was a class B felony with a maximum ten-year penalty. Presumptive terms were, respectively, four years for a second felony offender, and six years for a third felony offender. McCombs, with the apparent consent of the state, was treated as a second felony offender subject to a four-year presumptive term. If we look at each offense separately, the court’s power to increase the sentence was contingent upon a finding of aggravating factors or extraordinary circumstances. See McManners v. State, 650 P.2d 414, 416 (Alaska App.1982). The trial court made no such finding: In this case, McCombs was convicted of two separate offenses and was subject to consecutive sentences. Nevertheless, we have stated that the trial court’s power to impose consecutive sentences does not permit a total sentence in excess of the presumptive sentence for the most serious offense in the absence of compelling need. Farmer v. State, 746 P.2d 1300 (Alaska App.1987). Compelling need must, of course, be determined in light of the criteria set out in State v. Chaney, 477 P.2d 441, 447 (Alaska 1970) (rehabilitation, deterrence of self and others, affirmation of community norms, and isolation)..

In determining whether a sentence composed of consecutive increments in excess *1133of the presumptive term for the most serious offense is warranted, the court should be governed by the principle of parsimony. See, e.g., Pears v. State, 698 P.2d 1198, 1204-06 (Alaska 1985) (court should impose the least severe sentence capable of satisfying the Chaney criteria). Sentences in the ten- to fifteen-year range must be reserved for the most serious offenders committing the most serious offenses. See, e.g., Mosier v. State, 747 P.2d 548 (Alaska App.1987); Covington v. State, 747 P.2d 550 (Alaska App.1987); Pruett v. State, 742 P.2d 257, 264 (Alaska App.1987). Furthermore, those convicted of nonviolent offenses should receive more favorable sentences than those convicted of crimes against persons. Leuch v. State, 633 P.2d 1006, 1013 (Alaska 1981). When we examine McCombs’ background and conduct in light of the sentences typically imposed for sale of cocaine, it is clear that a sentence of sixteen years with four years suspended is too severe. See, e.g., Smith v. State, 745 P.2d 1375,1377-79 (Alaska App.1987) (summarizing cases reviewing sentences for cocaine sale and possession). I therefore agree that McCombs’ sentence must be reduced.

I cannot agree, however, with the majority’s conclusion that any sentence imposed by the Alaska court must be concurrent with, and involve no more incarceration than, the federal sentence. A number of factors lead me to this conclusion. First, the supreme court has indicated that our sentence review power is limited to determining whether the sentence imposed by the superior court is clearly mistaken. A sentence is clearly mistaken if it is outside an appropriate range of sentences for the offender and the offense. See, e.g., McClain v. State, 519 P.2d 811, 813 (Alaska 1974). The primary responsibility for structuring a sentence rests on the trial court. State v. Graybill, 695 P.2d 725, 729 (Alaska 1985). Under the majority’s analysis of the facts, the trial court really had no discretion to impose any sentence inasmuch as the federal court had already imposed the maximum sentence that, in the majority’s view, could be imposed upon McCombs for commercial dealing in cocaines The supreme court has suggested, however, that when a person is convicted in both state and federal courts, but sentenced first in the federal court, a part of the state’s sentence should be consecutive to the federal sentence. See, e.g., State v. Wortham, 537 P.2d 1117, 1121 (Alaska 1975).

Considering that McCombs has twice previously been convicted of a felony, has served over sixteen months’ incarceration for cocaine-related offenses, and was engaged in a retail cocaine business at the time of this offense, it appears to me that the superior court would not have been clearly mistaken in imposing up to two years of additional jail time upon McCombs consecutive to his federal sentence. A total sentence, including consecutive increments, of ten years to serve, plus additional suspended time to ensure McCombs’ rehabilitation and deterrence when he is free from prison, would not appear to me to have been clearly mistaken.1

*1134I would vacate the sentence imposed and remand for imposition of a total sentence, including consecutive increments, that when joined to the federal sentence would not exceed ten years plus suspended time.2

. McCombs’ criminal conduct is generally similar to that described in Rivas v. State, 706 P.2d 1202 (Alaska App.1985). In such cases we have approved sentences not to exceed six years with two years suspended for first offenders. Id. at 1204-06. See also Stuart v. State, 698 P.2d 1218 (Alaska App.1985); Lausterer v. State, 693 P.2d 887 (Alaska App.1985). McCombs, however, differs from the offenders in these cases in one significant respect. He has two prior drug-related felony convictions, one of which qualified as a prior felony for purposes of presumptive sentencing, and he served over sixteen months’ imprisonment. Were it not for the fact that he served his term more than five years ago, he would qualify as a "dangerous offender” under the ABA standards. See, e.g., Sundberg v. State, 652 P.2d 113, 116 (Alaska App.1982); Viveros v. State, 633 P.2d 289, 291 (Alaska App.1981). See also Graybill, 695 P.2d at 729-31 (generally_ equating dangerousness with repeated criminality rather than violence).

This conclusion is undermined by the amount of time that has elapsed since McCombs was previously convicted and served his sentence. Nevertheless, even remote convictions may be significant if they involved similar crimes. See, e.g., Moat v. State, 670 P.2d 708, 711 (Alaska App.1983). McCombs’ convictions all involve related conduct.

. The conclusion that McCombs is a second felony offender rather than a third felony offender is problematic. The facts are set out in the majority opinion. Possession of marijuana was a felony in Alaska in 1974 when McCombs was convicted. See former AS 17.12.010 (precluding, inter alia, possession of "depressant, hallucinogenic, or stimulant drugs”) and former AS 17.12.150 (defining "depressant, hallucinogenic, or stimulant drugs” to include all parts of the plant cannabis sativa L (marijuana)). It may be that the parties concluded that Ravin v. State, 537 P.2d 494 (Alaska 1975) and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), precluded relying on a felony conviction for possession of marijuana in another state as a prior felony even though it would have been a felony at the time in Alaska. In Ravin, the supreme court said that the legislature could not constitutionally prohibit private possession of small quantities of marijuana for personal use by adults in the home. 537 P.2d at 511. In Tucker, the United States Supreme Court held that where a defendant, who had been denied his constitutional right to counsel in connection with a prior conviction, could not have that conviction used to enhance a subsequent sentence. Reliance on Ravin and Tucker, which in my opinion are clearly distinguishable, is problematic in this case. The parties, however, have not argued the issue, and it is clear that the majority, in determining that an eight-year sentence is the maximum that McCombs could receive, does not consider his status as a second or third felony offender particularly important. Consequently, I will not further address the issue.