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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM H. DAWSON, )
) Court of Appeals No. A-6945
Appellant, ) Trial Court No. 4FA-97-117 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1628 - March 19, 1999]
______________________________)
Appeal from the Superior Court, Fourth Judi-
cial District, Fairbanks, Ralph R. Beistline,
Judge.
Appearances: Lori M. Bodwell, Fairbanks, for
Appellant. Scott L. Mattern, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In early 1997, William H. Dawson was indicted on eight
counts of selling cocaine1 during the months of October through
December, 1996, as well as one additional count of maintaining a
"crack house"2 during those months. Dawson ultimately pleaded no
contest to three of the sale counts; in return, the State dismissed
the other charges and also dismissed another case that was pending
against Dawson, a sale of cocaine charge in case number 4FA-96-3487
Cr.
Dawson's offenses are class B felonies.3 Dawson had one
prior felony conviction for assault with a dangerous weapon under
section 11.15.220 of the former criminal code, but this conviction
was from 1976 - old enough that it no longer counted for
presumptive sentencing purposes.4 Dawson was therefore a "first
felony offender" for sentencing purposes.
In sentencing Dawson for the three deliveries of cocaine,
Superior Court Judge Ralph R. Beistline found that Dawson was
"running a crack house in Fairbanks and ... got caught". Judge
Beistline also noted that, although Dawson was a first felony
offender, he had a long history of criminal offenses dating back to
1964. The judge sentenced Dawson to a composite term of 6 years
with 2 years suspended (4 years to serve).
Dawson first argues that he should not be treated as a
repetitive cocaine seller. Dawson concedes that he pleaded no
contest to three separate sales of cocaine, and he admits that the
evidence at sentencing showed that he made several more sales of
the drug during the three months mentioned in the indictment. But
Dawson blames the police for his repeated violations of the law.
Dawson points out that the police had the opportunity to arrest
him after the first sale of cocaine in October 1996. He argues
that his later sales of cocaine occurred only because the police
refrained from arresting him, choosing instead to send their
undercover agent back to Dawson's residence to buy more cocaine
from him.
Dawson's argument may be creative, but it is unavailing.
Dawson does not dispute that he was ready and willing to trade
cocaine for money. On each occasion charged, the police did no
more than give Dawson the opportunity to sell his goods. Even
though the police sent purchasers to Dawson's door, Dawson's
voluntary conduct (selling the cocaine) was a "substantial factor"
in causing each delivery of cocaine, and he is therefore criminally
responsible for these offenses.5
Dawson next argues that his sentence is excessive. State
v. Jackson6 establishes a benchmark range of 1 to 4 years to serve
for first felony offenders who commit a typical to moderately
aggravated class B felony.7 Dawson's sentence is at the top of
this range. On appeal, Dawson contends that he should have
received a sentence more toward the middle of the range; he argues
that his offense should have been viewed as "typical" rather than
"moderately aggravated".
Jackson provides the general benchmark sentencing ranges
for first felony offenders convicted of class B felonies. But in
our prior sentencing decisions involving defendants convicted of
selling cocaine, we have established a more precise series of
benchmarks for this particular offense.
We have routinely approved sentences of up to 2 years to
serve for defendants convicted of small-scale retail sales of
cocaine. See, for example, Sirilo v. State8, Blakesley v. State9,
and Dana v. State10. For defendants convicted of selling wholesale
or borderline-wholesale quantities of cocaine, we have upheld
sentences of 4 years to serve. See, for example, Lewis v. State11,
Staats v. State12, Rivas v. State13, and Lausterer v. State14. We
have also approved severe sentences for defendants who, although
convicted of only retail-quantity sales, continued to sell cocaine
while on bail release. See, for instance, Johnson v. State15, Bush
v. State16, and Rosa v. State17.
Dawson's case lies in the middle of this range. The
record supports Judge Beistline's finding that Dawson was "running
a crack house". Dawson (either personally or through associates)
made numerous sales of cocaine during a ten-week period. However,
all of these sales were of strictly retail quantity: with one
exception (a $250 sale), the amounts of money involved never
exceeded $110. Judge Beistline correctly noted that Dawson had a
lengthy involvement with the justice system. However, with one
exception (a misdemeanor assault conviction in 1996, for which
Dawson was sentenced to serve 4 days in jail), all of Dawson's
convictions were more than 10 years old and none of them involved
sale or possession of drugs. Under these circumstances, we
conclude that Dawson's sentencing is governed by our decision in
Major v. State.18
The defendant in Major was convicted of five counts of
third-degree controlled substance misconduct (sale of cocaine), and
she was initially sentenced to 8 years' imprisonment with 4 years
suspended (4 years to serve).19 Although Major was convicted of
only five sales, the record showed that she was extensively
involved in commercial sales of cocaine over a lengthy period.20
Indeed, she was "the center of activity for several other persons
who sometimes acted as [her] courier".21 Major also had "somewhat
worse than average prospects for rehabilitation".22 However,
Major's sales of cocaine involved small retail quantities - one-
eighth and one-sixteenth of an ounce.23 Weighing these factors in
combination, this court concluded that Major should not be placed
in the same category as those offenders who sold cocaine in
wholesale or borderline-wholesale quantities. We reversed her
sentence of 4 years to serve, and we directed the superior court to
sentence Major to no more than 6 years with 3 years suspended.24
The facts of Dawson's case are quite similar to the facts
presented in Major. Dawson, like Major, engaged extensively in the
cocaine trade; Judge Beistline found that Dawson was the center of
activity - that he ran the crack house. Nevertheless, Dawson sold
cocaine in small retail quantities, not wholesale quantities.
Dawson's criminal history is lengthy, but this history is
old and does not include any drug offenses. Judge Beistline did
not find that Dawson's prior offenses had any particular relevance
to the current charges.
We conclude, as we did in Major, that a sentence of
4 years to serve is clearly mistaken.25 Dawson's sentence is
REVERSED, and the superior court is directed to sentence Dawson to
no more than 6 years' imprisonment with 3 years suspended.
Footnotes
1 Third-degree misconduct involving a controlled substance,
AS 11.71.030(a)(1)(A).
2 Fourth-degree misconduct involving a controlled substance,
AS 11.71.040(a)(5).
3 See AS 11.71.030(c).
4 See AS 12.55.145(a)(1)(A).
5 See State v. Malone, 819 P.2d 34, 36 (Alaska App. 1991)
(quoting R. Perkins & R. Boyce, Criminal Law (3rd ed. 1982), § 9,
pp. 779-780).
6 776 P.2d 320 (Alaska App. 1989).
7 See id. at 326-27.
8 840 P.2d 277, 278-79 (Alaska App. 1992).
9 715 P.2d 269, 271-72 (Alaska App. 1986).
10 623 P.2d 348, 356 (Alaska App. 1981).
11 769 P.2d 450, 451-52 (Alaska App. 1989).
12 717 P.2d 413, 422 (Alaska App. 1986).
13 706 P.2d 1202, 1205 (Alaska App. 1985).
14 693 P.2d 887, 891-92 (Alaska App. 1985).
15 919 P.2d 767, 773-74 (Alaska App. 1996).
16 678 P.2d 423, 426 (Alaska App. 1984).
17 627 P.2d 658, 659-660 (Alaska App. 1981).
18 798 P.2d 341 (Alaska App. 1990).
19 See id. at 341.
20 See id. at 344-45.
21 Id. at 345.
22 Id.
23 See id. at 344.
24 See id. at 346.
25 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court will affirm a sentencing decision
unless it is clearly mistaken).
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