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THE COURT OF APPEALS OF THE STATE OF ALASKA
ALEX FOX, )
) Court of Appeals No. A-3092
Appellant, ) Trial Court No. 3AN-S88-1313CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1206 - February 21, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Alex Fox was convicted by a jury of two counts of
selling cocaine (misconduct involving a controlled substance in
the third degree). He appeals, contending that the evidence
against him should have been suppressed because it resulted from
unlawful electronic monitoring. Fox also contends that his
sentence is excessive. We affirm.
In January of 1988, Anchorage police received a tip
that Alex Fox and his brother, John, were engaged in cocaine
trafficking and that John was actively looking for new customers.
The police made arrangements for an undercover officer to buy
cocaine at the Fox residence. The transaction occurred as
scheduled. John Fox made a sale of cocaine to undercover officer
David Koch. Alex Fox was not present.
On February 17, 1988, following the initial purchase,
the police secured a warrant authorizing them to monitor and
record a further undercover buy from John Fox. The police
arranged another transaction for February 25. On that date, at
the appointed time, undercover officer Koch arrived at the Fox
residence with his recorder running. However, upon asking for
John Fox, Koch was told that he was not present. Alex Fox --
whom Koch had never met --then came to the door and asked Koch
what he wanted. When Koch told Alex Fox that he had come to buy
cocaine from John, Alex said that he would "take care of" Koch.
Alex proceeded to sell Koch a gram of cocaine. The sale was
recorded by Koch.
Based on this transaction, the police arranged another
buy with Alex Fox, obtained a second warrant, and, on February
29, 1988, made another purchase of cocaine from Alex Fox at his
residence.
As a result of the February 25 and 29 sales, Alex Fox
was charged with two counts of misconduct involving a controlled
substance in the third degree. Fox moved to suppress the
evidence, arguing that the initial warrant was invalid because it
did not authorize the police to record a conversation with him,
but, instead, only allowed the recording of a transaction
involving John Fox. Fox further claimed that the evidence
obtained during the February 29 transaction was the fruit of the
initial invalid warrant.
After an evidentiary hearing, Superior Court Judge
Peter A. Michalski denied Fox's motion to suppress. Although
Judge Michalski concluded that the initial warrant did not permit
the police to record the transaction with Alex Fox, the judge
nevertheless found that recording the transaction was justified
by exigent circumstances, given the unanticipated absence of John
Fox and the unexpected intervention of Alex Fox.
The trial court's findings concerning the validity of
the warrantless search are reversible only for clear error.
State v. Bianchi, 761 P.2d 127, 129 (Alaska App. 1988). In the
present case, there is substantial evidence in the record to
support Judge Michalski's finding of exigent circumstances; we
are satisfied that Judge Michalski was not clearly erroneous in
denying Fox's motion to suppress.
Fox separately argues that his sentence is excessive.
Misconduct involving a controlled substance in the third degree
is a class B felony. By virtue of a prior conviction for first-
degree sexual assault, Fox was a second felony offender and was
subject to a presumptive term of four years for each count. In
the present case, Judge Michalski imposed mitigated presumptive
terms of four years with two years suspended for each of Fox's
convictions. Judge Michalski made the two counts concurrent to
each other but consecutive to a four-year term previously imposed
on Fox by Superior Court Judge Karl S. Johnstone for a separate
conviction of misconduct involving a controlled substance in the
third degree, which occurred while the current charges against
Fox were pending. In imposing the four-year presumptive term on
the prior charge, Judge Johnstone had provided that it be
consecutive to any future sentence Fox might receive in other
pending cases. The sentences imposed by Judge Michalski in the
present case were also made consecutive to a two-year sentence
imposed by Superior Court Judge Mark C. Rowland upon revocation
of Fox's probation on his original felony conviction for sexual
assault. The revocation was prompted by Fox's current drug
offenses.
Fox's composite sentence is thus ten years with two
years suspended. On appeal, Fox does not challenge the
appropriateness of the individual sentences he received for the
two counts in this case. He argues only that imposition of these
sentences consecutively to the sentences imposed by Judges
Rowland and Johnstone -- for a total of ten years with two years
suspended -- is clearly mistaken.
Given the serious nature of Fox's prior conviction,
however, as well as his probationary status and the repetitive
and commercial nature of his current criminal activity, the three
superior court judges who imposed the sentences that make up
Fox's composite term all had good cause to conclude that
consecutive sentencing would be appropriate. Farmer v. State,
746 P.2d 1300, 1301-02 (Alaska App. 1987). After independently
reviewing the entire sentencing record, we are persuaded that
Fox's composite sentence of ten years with two years suspended is
not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14
(Alaska 1974).
The conviction and sentence are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
