IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HERBERT D. JOHNSON, Sr., )
) Court of Appeals No. A-3790
Appellant, ) Trial Court No. 3PA-S89-1679
Cr
)
v. )
) O
P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1156 - September 6,
1991]
________________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: John C. Pharr, Law Offices of
John C. Pharr, Palmer, for Appellant. Eugene
B. Cyrus, Assistant District Attorney, Palmer,
and Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
COATS, Judge, dissenting.
Herbert D. Johnson, Sr. was convicted, based upon his
plea of no contest, of misconduct involving a controlled substance
in the fourth degree, a class C felony. AS 11.71.040(a)(3)(F).
Superior Court Judge Beverly W. Cutler suspended imposition of
sentence for three years, conditioned on Johnson's payment of $500
court costs and his performance of 240 hours' community work
service.
Johnson now appeals his sentence, contending that it is
excessive. The State of Alaska responds that Johnson has no right
to appeal his sentence because he did not receive a sentence of at
least 45 days' imprisonment. See Appellate Rule 215(a).
Appellate review of sentences has a tortuous history in
Alaska. In Bear v. State, 439 P.2d 432, 436 (Alaska 1968), the
Alaska Supreme Court held that it lacked the authority to review a
criminal sentence when the defendant claimed no illegality of the
sentence but only that the sentence was excessive. Following the
decision in Bear, the legislature enacted AS 12.55.120, a law
giving the supreme court the authority to hear sentence appeals.
However, under the terms of the statute, the court's authority
extended only to cases in which the defendant had received one
year or more of imprisonment.
Seven years later, the supreme court enacted former
Appellate Rule 21(a). This rule extended the right of sentence
appeal to any defendant receiving a term of imprisonment of 45
days or more. The language of former Appellate Rule 21(a) has
survived, with no pertinent changes, in current Appellate Rule
215(a):
At the time of imposition of any sentence of
imprisonment of 45 days or more, the [sentenc
ing] judge shall inform the defendant ...
[t]hat the sentence may be appealed on the
ground that it is excessive[.]
In Wharton v. State, 590 P.2d 427, 429 (Alaska 1979), the supreme
court interpreted this language from former Appellate Rule 21(a)
as allowing a sentence appeal to any criminal defendant who had
received a "sentence of imprisonment of 45 days or more".
The scope of this court's jurisdiction to entertain
sentence appeals is clouded because, in 1980, the Alaska legisla
ture responded to the Wharton decision by passing chapter 12 SLA
1980. Sections 8, 15, 29, and 31 of this law enacted new versions
of AS 22.10.020, AS 22.15.240, and AS 12.55.120 that limited
sentence appeals to district court cases in which the defendant
had received a sentence of imprisonment of at least 90 days and to
superior court cases in which the defendant had received a
sentence of imprisonment of at least one year. Sections 37 and 38
of the new law expressly stated that the legislature intended to
amend Appellate Rule 21(a), and the legislature passed chapter 12
SLA 1980 by the two-thirds' majority required by Article IV,
Section 15 of the Alaska Constitution. See 1980 House Journal 540
and 1980 Senate Journal 467.
Matters are further complicated by the supreme court's
adoption, three months later, of a revised version of the
Appellate Rules. The rules were reorganized and renumbered; as
noted above, former Appellate Rule 21(a) became current Appellate
Rule 215(a). According to the revisor's commentary to proposed
Rule 215, the new rule was intended to re-enact former Rule 21 in
all pertinent aspects. The revisor then discussed the recent
action of the legislature:
The legislature changed the introductory
provisions of this rule by sections 8, 15, 29,
31, 37, and 38 of Chapter 12, SLA 1980, to
provide that certain sentences of short dura
tion cannot be appealed as excessive. Wharton
v. State, 590 P.2d 427 (Alaska 1979),
indicates that the legislature does not have
the authority to do so.
Memorandum of June 13, 1980, from Robert D. Bacon, Clerk of the
Appellate Courts. The revisor's use of the word "indicates"
rather than "holds" appears to have been prudent, since it is
unclear whether the decision in Wharton was premised upon the
supreme court's rule-making power granted by Article IV, Section
15, or whether Wharton was actually a pronouncement that the
Alaska constitution vested the supreme court with exclusive power
to determine the scope of its jurisdiction over sentence appeals,
in spite of any contrary action taken by the Alaska legislature
under Article IV, Section 1.
This court need not enter the thorny thicket lying in
the path of anyone attempting to reconcile the language of
Appellate Rule 215(a), the supreme court's decision in Wharton,
and the legislature's passage of chapter 12 SLA 1980. Even if
this court were to adopt the view of the law most favorable to
Johnson, this appeal must still be dismissed.
As interpreted in Wharton, Appellate Rule 215(a) limits
sentence appeals to defendants who have received a "sentence of
imprisonment of 45 days or more". Johnson has not received such a
sentence.
It is conceivable that the requirement of a 45-day
sentence specified in Appellate Rule 215(a) might be relaxed under
Appellate Rule 521:
These rules are designed to facilitate
business and advance justice. They may be
relaxed or dispensed with by the appellate
courts where a strict adherence to them will
work surprise or injustice.
But Johnson has failed to make a convincing showing that our
adherence to the language of Appellate Rule 215(a) will work
either surprise or injustice in his case.
Johnson argues that, because Appellate Rule 215(a)
speaks only of when a defendant must be notified of his right of
sentence appeal, the right of sentence appeal might actually
extend to any criminal defendant, even the ones who need not be
notified. We reject this interpretation for two reasons. First,
Johnson's interpretation appears to be inconsistent with the way
the supreme court interpreted former Rule 21(a) in Wharton.
Second, it does not make sense that the Alaska Supreme Court, in
promulgating former Rule 21(a) and current Appellate Rule 215(a),
would have proceeded under the assumption that all criminal
defendants had a right to file a sentence appeal but only some of
them should be told about it.
Thus, under the most expansive view that this court
might take of its sentence appeal jurisdiction, Johnson still
fails to qualify for sentence review. This appeal is DISMISSED.
COATS, Judge, Dissenting.
In Bear v. State, 439 P.2d 432, 439 (Alaska 1968),
Justice Rabinowitz concluded that art. IV, 2 of the Alaska
Constitution, which vests the supreme court with "final appellate
jurisdiction," gave the supreme court the inherent power to review
sentences. The Alaska Supreme Court ultimately adopted Justice
Rabinowitz's view in Wharton v. State, 590 P.2d 427, 429 (Alaska
1979). In reaching this conclusion, the supreme court relied in
part on former Appellate Rule 21, which is now the current
Appellate Rule 215. In Wharton, the supreme court said:
In promulgating Rule 21, this court accepted
Justice Rabinowitz'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.
Id. (footnote omitted). The court also relied on art. 1, 12 of
the Alaska Constitution, which provides that: "Penal
administration shall be based on the principle of reformation and
upon the need for protecting the public." Id. at 429 n. 5. The
Wharton court stated: "Sentence review insures that sentencing
courts pay due regard to the goals of reformation and protection
of the public." Id. I therefore read Wharton as a decision that
the supreme court has the inherent power to review all sentences
under the Alaska Constitution, including sentences of less than
forty-five days.
Appellate Rule 215 provides in pertinent part:
(a) Notification of Right to Appeal
Sentence. At the time of imposition of any
sentence of imprisonment of 45 days or more,
the judge shall inform the defendant as
follows:
(1) That the sentence may be appealed on
the ground that it is excessive.
The language of Appellate Rule 215 simply requires a judge to
inform a defendant of his right to appeal his sentence on the
ground that it is excessive if the judge has sentenced the
defendant to a sentence of imprisonment of forty-five days or
more; it does not restrict the supreme court's jurisdiction in
sentence appeals to cases which involve sentences of imprisonment
of forty-five days or more. I see no reason to conclude from this
rule that the supreme court intended to limit sentence appeals to
sentences of imprisonment in excess of forty-five days.
If the supreme court intended only to exercise sentence
appeal jurisdiction in cases which involved sentences of forty-
five days or more, the court could have said that directly. In
addition, the original logic of Justice Rabinowitz's position in
Bear was that the supreme court should be able to review any
decision of the trial court for an abuse of discretion, and that
sentencing should not be the only area where the trial court was
exempt from review. It also makes sense to me that the supreme
court would require a trial judge to inform a defendant of his
right to a sentence appeal only in more serious cases. The
supreme court did not want to require a trial judge to inform a
defendant of his right to a sentence appeal in every case. Many
cases involve only fines or small terms of imprisonment which in
all but a few cases would be inappropriate for appellate review.
It therefore makes sense for the supreme court to require a trial
judge to inform a defendant of his right to appeal his sentence
only in cases that involve a sentence of forty-five days or more.
However, this is different from the supreme court determining that
it did not have jurisdiction of cases involving imprisonment of
under forty-five days.
Whether this court has jurisdiction to decide the
sentence appeal in this case is more difficult. Unlike the
supreme court, the court of appeals is not a constitutional court,
but was created by the legislature. Therefore, the legislature
has the authority to determine the jurisdiction of this court.
What jurisdiction the legislature intended to give this court in
sentence appeals is a difficult issue. Alaska Statute
22.07.020(c)(2) gives this court jurisdiction to review "the final
decision of the district court on a sentence imposed by it."
However, there is an argument that the legislature intended to set
the sentence appeal jurisdiction of this court in AS 12.55.120,
which provides in part that:
(a) A sentence of imprisonment lawfully
imposed by the superior court for a term or
for aggregate terms of one year or more may be
appealed to the court of appeals by the
defendant on the ground that the sentence is
excessive.
. . .
(d) A sentence of imprisonment lawfully
imposed by the district court for a term or
for aggregate terms exceeding 90 days may be
appealed to the superior court by the
defendant on the ground that the sentence is
excessive.
However, AS 12.55.120 is a grant of jurisdiction; it does not
directly limit the jurisdiction which the legislature gave this
court when it enacted AS 22.07.020.
I am reluctant to conclude that this court does not have
jurisdiction over relatively short sentences, but that the supreme
court does. I do not believe that the legislature would intend
that result, and I think it is unlikely that the supreme court
would reach that result on the basis of the current statutes. It
seems unnecessary to hold that a defendant who wishes to appeal a
sentence of forty-five days or less must appeal to the supreme
court, whereas this court would continue to have jurisdiction over
more severe sentences. I therefore conclude that this court, like
the supreme court, has jurisdiction to hear any sentence appeal.
As a practical matter, whether this court has jurisdiction or not,
it seems unlikely that a defendant who has a sentence of less than
forty-five days will prevail in a sentence appeal. I am unaware
of this court or the supreme court finding that a sentence of
forty-five days or less was excessive. However, the possibility
that such a defendant could show that the sentence was clearly
mistaken does exist. The majority's position might also restrict
this court's jurisdiction to review sentences which involve fines,
community service, probation conditions, or the form of the
sentence -- such as whether the defendant qualifies for a
suspended imposition of sentence.
Turning to Herbert Johnson's case, it appears to me that
this court has jurisdiction to hear his sentence appeal.
Johnson's burden, therefore, is to show that the trial court's
sentence was clearly mistaken, not to "make a convincing showing
that our adherence to the language of Appellate Rule 215(a) will
work either surprise or injustice in his case." I would reach the
merits of Johnson's case and apply the clearly mistaken standard.
I dissent from the court's opinion, dismissing the appeal without
reaching the merits.
