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THE COURT OF APPEALS OF THE STATE OF ALASKA
ERIC SIRILO, )
) Court of Appeals No. A-4042
Appellant, ) Trial Court No. 4BE-S88-83CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1258 - October 30, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Dale Curda, Judge.
Appearances: Andrew Haas, Assistant Public
Defender, Bethel, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Stephen
B. Wallace, Assistant District Attorney, Ben
M. Herren, District Attorney, Bethel, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Eric Sirilo was convicted, based upon his plea of
nolo contendere, of misconduct involving a controlled substance
in the third degree, a class B felony, and misconduct involving a
controlled substance in the fourth degree, a class C felony. AS
11.71.030(a)(1), AS 11.71.040(a)(2). Sirilo's convictions were
for selling two one-half gram slips of cocaine for a total of
$100 and selling two ounces of marijuana for a total $560.
Superior Court Judge Gail Fraties sentenced Sirilo to a five-year
suspended imposition of sentence. As a condition of probation,
Judge Fraties required Sirilo to serve eighteen months of
imprisonment.
Following his release from confinement, Sirilo violated
his probation numerous times. In essence, Sirilo was either
unwilling or unable to stop from smoking marijuana in spite of
the fact that the probation authorities made vigorous attempts to
require Sirilo to abide by this condition of his probation and to
obtain treatment for his drug use. Superior Court Judge Dale O.
Curda revoked Sirilo's probation and sentenced him to a total of
four years of imprisonment. Sirilo appeals this sentence,
arguing that it is excessive. We agree with Sirilo and reverse.
In evaluating Sirilo's sentence, we start our inquiry
by analyzing sentencing bench marks which this court and the
supreme court have established. Sirilo was a twenty-year-old
first felony offender at the time of his first sentencing. He
had no prior criminal record.1 Since Sirilo was a first felony
offender whose most serious offense was a class B felony, Judge
Curda should have imposed a sentence more favorable than the four-
year presumptive sentence which the legislature provides for a
second felony offender unless he found that the case was
exceptional. Austin v. State, 627 P.2d 657, 657-58 (Alaska App.
1981). In sentencing Sirilo, Judge Curda specifically found that
the case was not exceptional, but imposed a sentence of four
years of imprisonment, a sentence which was eqivalent to the
presumptive sentence for a second felony offender. In general,
this court and the supreme court have found not clearly mistaken
sentences of up to two years of actual imprisonment where a first
offender engages in small commercial sales of cocaine. LeDuff v.
State, 618 P.2d 557, 558 (Alaska 1980); Bush v. State, 678 P.2d
423, 426 (Alaska App. 1984); Dana v. State, 623 P.2d 348, 356
(Alaska App. 1981). On the other hand, we have found sentences
in excess of six years with two years suspended clearly mistaken
for first offenders who engage in relatively large transactions
involving cocaine. Stuart v. State, 698 P.2d 1218 (Alaska App.
1985); Lausterer v. State, 693 P.2d 887 (Alaska App. 1985).
In Kriner v. State, 798 P.2d 359, 361 (Alaska App.
1990), we pointed out that:
In imposing sentence upon revocation of
probation, however, the sentencing court must
consider not only the seriousness of the
original offense, but also the nature of the
defendant's conduct while on probation and
the seriousness of the violation that led to
that revocation.
See also Chrisman v. State, 789 P.2d 370, 371 (Alaska App. 1990).
In the instant case, Sirilo was a young first offender who was
convicted for selling small quantities of cocaine and marijuana.
At the time of Sirilo's first sentencing, before he had served
any time in jail or been on probation, it would be difficult to
justify a sentence in excess of four years with two years
suspended. This would have been a substantial sentence in light
of the prior appellate decisions for similar offenses.
We must then look at what additional time the court
could impose given Sirilo's subsequent violations of probation
and his poor performance on probation. In imposing sentence,
Judge Curda found that Sirilo was addicted to marijuana, but that
there was no evidence that Sirilo continued to sell any drugs.
He found that Sirilo had totally failed on probation. We believe
that these findings justified Judge Curda in imposing up to an
additional year of imprisonment in addition to the two years of
imprisonment which would have been justified at Sirilo's original
sentencing. We do not believe that it is appropriate, when we
consider Sirilo's prior record, age, offense, and conduct on
probation, to authorize a sentence of four years of imprisonment
which would place him in the same sentencing category as first
offenders such as Stuart and Lausterer who sold substantial
quantities of cocaine. Accordingly, we conclude that the
sentence which Judge Curda imposed of four years of imprisonment
is clearly mistaken. We remand to the trial court to impose a
sentence not to exceed three years of imprisonment.
The sentence is REVERSED.
_______________________________
1. Sirilo had what appears to be a minor record of
juvenile offenses. However, these offenses were adjusted
informally, and neither Judge Fraties nor Judge Curda gave any
weight to Sirilo's prior juvenile record.
