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THE COURT OF APPEALS OF THE STATE OF ALASKA
STEPHEN A. KNIGHT, )
) Court of Appeals No. A-4613
Appellant, ) Trial Court No. 4FA-S92-77CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1302 - July 23, 1993]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: James H. Cannon, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Daniel R. Cooper, Jr., Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Stephen Knight was caught in possession of thirty-one
paper slips containing cocaine, which he was attempting to sell
to raise money for past-due child support payments; the aggregate
weight of the cocaine was about ten and one-half grams --
slightly more than one-third of an ounce.
Knight subsequently entered a plea of no contest to a
charge of misconduct involving a controlled substance in the
third degree in violation of AS 11.71.030(a)(1) (possession of
cocaine with intent to deliver). Because he had previously been
convicted of a felony, Knight was subject to a presumptive term
of four years for the offense. AS 11.71.030(c); AS
12.55.125(d)(1). Prior to sentencing, Knight alleged that the
mitigating factor specified in AS 12.55.155(d)(14) applied to his
case: that his "offense involved small quantities of a controlled
substance."
Superior Court Judge Mary E. Greene rejected the
proposed mitigating factor, stating that, "[m]y cutoff point [for
the `small quantities' mitigating factor] has always been a
quarter ounce . . . ." Although Judge Greene acknowledged that
this limit was to some extent "admittedly arbitrary," the judge
indicated that it was "based on the cases that I see" involving
dealers who do not "deal any kind of large quantities."
Upon rejecting Knight's proposed mitigating factor and
after finding one applicable aggravating factor (which is not in
dispute here), Judge Greene sentenced Knight to a term of four
and one-half years with six months suspended. Knight appeals,
chal-lenging Judge Greene's rejection of his proposed mitigating
factor.
On appeal, Knight argues that defining the meaning of
"small quantities" is an issue of law as to which we should
exercise de novo review. Knight urges us to hold, as a matter of
law, that ten and one-half grams of cocaine amounts to a small
quantity for purposes of AS 12.55.155(d)(14). He relies chiefly
on cases that discuss the issue of "small quantities" and "large
quantities" of drugs in the context of the guidelines established
by the Alaska Supreme Court in Waters v. State, 483 P.2d 199
(Alaska 1971).
In Waters, the supreme court grouped drug offenses into
a four-tier hierarchy for sentencing purposes: sale or possession
for sale of "large quantities"; sale or possession for sale of
"small quantities"; simple possession; and marijuana offenses.
Waters, 483 P.2d at 201. Later, in Elliott v. State, 590 P.2d
881 (Alaska 1979), the supreme court described an offender who
sold two grams of cocaine and possessed ten more as one who dealt
with "small quantities" for purposes of Waters. Elliott, 590
P.2d at 881-82.
Knight cites Elliott to support his claim that the
disputed mitigating factor, AS 12.55.155(d)(14), should have
applied in his own case. Knight similarly points to Major v.
State, 798 P.2d 341, 344 (Alaska App. 1990), as further
supporting his position. There, we characterized a case
involving a series of nine cocaine transactions, each consisting
of between one-eighth and one-sixteenth of an ounce, as one that
qualified under the "small quantities" rubric of Waters.
In our view, however, cases discussing "small
quantities" with reference to the Waters approach have little if
any bearing on the interpretation of "small quantities" for
purposes of the mitigating factor in this case. The Waters
approach -- adopted prior to the advent of presumptive sentencing
and meant as an aid for non-presumptive sentencing purposes --
establishes only two categories for cases involving sale or
possession for sale of drugs other than marijuana: small quantity
cases and large-quantity cases. Because Waters establishes no
middle ground, it necessarily results in broad large-quantity and
small-quantity categories, with little if anything falling in
between; at most this approach leaves room in the middle for a
narrow, "borderline" category of doubtful cases. See, e.g.,
Lausterer v. State, 693 P.2d 887, 891 (Alaska App. 1985) (one to
eight ounces of cocaine comprise the middle ground).
In sharp contrast to the Waters approach, Alaska's
presumptive sentencing scheme takes a decidedly more center-
oriented view of sentencing. The presumptive term for any given
class of case represents the appropriate sentence for typical
cases in that class, a relatively broad category into which most
cases will fall; statutory aggravating and mitigating factors
define the peripheries of this category, identifying relatively
narrow circumstances that tend to make a given case atypical and
place it outside the relatively broad presumptive middle ground.
See Juneby v. State, 641 P.2d 823, 833 (Alaska App. 1982),
modified on other grounds, 665 P.2d 30 (Alaska App. 1983).1
Given the difference in emphasis between the Waters
approach and the approach followed by the presumptive sentencing
statutes, it is apparent that the meaning of the terms "small
quantities" and "large quantities" will depend on the context in
which those terms are used. On the one hand, for Waters
purposes, a "small quantity" is anything less than a "large
quantity"; conversely, a "large quantity" is anything that is not
"small." On the other hand, for presumptive sentencing purposes
-- and, more specifically, for purposes of applying AS
12.55.155(d)(14) and its corresponding "large quantities"
aggravating factor, AS 12.55.155-(c)(25) -- a "small quantity" is
a quantity that is uncharacter-istically small in comparison to
the broad-middle ground covered by a typical drug case;
conversely, a "large quantity" is one at the other extreme of the
norm for the offense.
In the present case, the pertinent question is whether
one-third ounce of cocaine amounts to an unusually or uncharacter-
istically small quantity in comparison to a typical case in which
cocaine is possessed by one who intends to sell it. Cases
discuss-ing "small quantities" in the Waters context are of
little utility in resolving this question.
Moreover, contrary to Knight's assertion on appeal,
this question, we think, is primarily one of fact, not one of
law. Within any class of controlled substance, what constitutes
an unusually small or large quantity may vary from case to case,
depending on variables such as the precise nature of the
substance and the form in which it is possessed, the relative
purity of the substance, its commercial value at the time of the
offense, and the relative availability or scarcity of the
substance in the community where the crime is committed.
Variations may also occur over time: what amounted to a typical
controlled substance transaction ten years age might be an
exceptional one today.
These variables do not lend themselves to an inflexible
rule of general application, and they render it both undesirable
and wholly impractical to treat the question of what constitutes
a "large" or "small" quantity for purposes of AS 12.55.155(c)(25)
and (d)(14) as an abstract question of law. The question must
instead be resolved by the sentencing court as a factual matter,
based on the totality of the evidence in the case and on the
court's discretion, as informed by the totality of its
experience.2 We recognize that sentencing judges will
inevitably differ from time to time in deciding whether a
particular quantity of a controlled substance is large or small
for purposes of AS 12.55.155(c)(25) or (d)(14). To the extent
such differences are not explained by the peculiar facts of the
cases under considera-tion, conflicts can be resolved at the
appellate level on a case-by-case basis. At this juncture, we
see no need to adopt hard-and-fast definitions as a preemptive
measure against potential conflicts.
In the present case, the sentencing court properly
considered the totality of the circumstances in Knight's case in
determining that his offense did not involve small quantities of
cocaine for purposes of AS 12.55.155(d)(14). Those circumstances
included not only the total weight of the cocaine -- more than
one-third ounce -- but also the clearly commercial context of
Knight's
possession: the cocaine was wrapped in thirty-one separate
packets, and Knight admitted his intent to sell it for
substantial monetary gain. The court also properly evaluated
these circumstances in light of its own experience handling
similar cases, which indicated that quantities of one-quarter
ounce or more could not be considered unusually small.
There is nothing in the sentencing record to indicate
that the sentencing court was inaccurate in its assessment of
what could realistically be deemed the lower limit for a typical
case involving possession of cocaine with intent to distribute.
Nor do this court's prior decisions indicate that the sentencing
court erred in its judgment; all of our prior cases finding the
disputed mitigating factor applicable have involved less than
four grams of cocaine.3
We conclude that the sentencing court was not clearly
erroneous in rejecting the proposed mitigating factor. Lepley v.
State, 807 P.2d 1095, 1099 (Alaska App. 1991) (holding the
clearly erroneous standard of review applicable to decisions
concerning the existence of aggravating and mitigating factors).
The sentence is AFFIRMED.
_______________________________
1. As we said in Juneby, 641 P.2d at 833:
Under the view espoused by the legislature, a
presumptive term represents the appropriate
sentence for cases that fall within the
middle-ground between the opposing extremes
of the most and least serious conduct for a
given crime. It is to be expected, then,
that sentences equalling or varying only
slightly from the presumptive terms will
generally be suitable when presumptive
sentencing applies. Minor adjustments for
aggravating or mitigating circumstances might
be appropriate in a significant number of
cases; only in unusual cases, however, can it
be anticipated that substantial deviation
from the presumptive term will be called for.
2. In this regard, we note that the legislature has placed
the burden of proving an aggravating or mitigating factor on the
factor's proponent, who must prove it by clear and convincing
evidence. AS 12.55.155(f). To the extent that a sentencing
judge's experience with cases involving controlled substances
does provide a ready answer to the question of whether a given
quantity of a substance is unusually small or large under the
particular circumstances of the case at hand, the proponent of
the factor is responsible for adducing proof, not only as to what
quantity is involved in the specific case, but also as to what
quantity is typical -- that is, what constitutes the norm for the
offense at a particular time and place. If the sentencing court
remains unconvinced on the issue after weighing the totality of
the evidence, its doubt signifies a failure of proof.
3. See McPherson v. State, 800 P.2d 928, 931 (Alaska App.
1990), rev'd on other grounds, State v. McPherson, _____ P.2d
_____, Op. No. 3970 (Alaska, July 2, 1993) (two grams); Jones v.
State, 771 P.2d 462, 463 (Alaska App. 1989) (2.97 grams of crack
and .80 grams of cocaine); Smith v. State, 745 P.2d 1375, 1376-77
(Alaska App. 1987) (approximately one-fifth gram).
