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State v. Eskridge (8/23/2002) ap-1820
State v. Eskridge (8/23/2002) ap-1820
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No.
A-8228
Appellant, ) Trial
Court No. 4FA-S01-1260 CR
)
v. )
) O P I N I
O N
SHAVONNE L. ESKRIDGE, )
)
Appellee. )
[No. 1820 - August 23, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Scott L. Mattern, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant.
Shavonne L. Eskridge, pro se, Fairbanks.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Shavonne L. Eskridge pleaded no contest to misconduct
involving a controlled substance in the third degree, a class B
felony,1 for selling the drug ecstasy to a police agent.
Superior Court Judge Niesje J. Steinkruger sentenced Eskridge, a
first felony offender, to a suspended imposition of sentence of
one year. As a condition of probation, she ordered Eskridge to
be incarcerated from the day of sentencing, December 21, 2001, to
January 11, 2002 - approximately thirty days. The state appeals
the sentence, arguing it is too lenient.
On February 16, 2001, Eskridge sold five tablets of
ecstasy to a police agent for $175. On March 9, 2001, Eskridge
sold an additional four tablets to the police agent for $120.
Eskridge was arrested immediately following this sale. On being
questioned by the police, Eskridge admitted her involvement and
agreed to assist the investigators in obtaining more ecstasy from
her source. But apparently the word of her arrest got out, and
she was unable to obtain more ecstasy to assist the police in
making other drug arrests.
A grand jury indicted Eskridge on two counts of
misconduct involving a controlled substance in the third degree.
The state entered into a plea agreement with Eskridge; the state
dismissed one of the counts for Eskridge's plea of no contest to
the other count. As part of the plea agreement, the state agreed
that Eskridge's sentence would not exceed ninety days of
imprisonment.
Eskridge was nineteen years old at the time of
sentencing. She had no prior criminal record. She was a
sophomore at the University of Alaska and is a single parent of a
fifteen-month-old son. In sentencing Eskridge, Judge Steinkruger
found that her offense was not mitigated; it was a "typical
street sale offense." She found that Eskridge was "a typical to
slightly mitigated offender" with "a very good record" and that
the "likelihood of [her] successful rehabilitation [was] very
good." Judge Steinkruger reasoned that a suspended imposition of
sentence would be appropriate in this case. She emphasized that
if Eskridge successfully completed her probation, her felony
conviction could be removed from her record. But if Eskridge
reoffended, the court could impose severe penalties, up to the
maximum sentence for her offense. Judge Steinkruger emphasized
the importance of allowing Eskridge to have the opportunity to
complete her education. The sentence of imprisonment was
designed to begin immediately and to end just in time for
Eskridge to attend the second semester at the University of
Alaska. Judge Steinkruger pointed out that this sentence would
be the equivalent of a thirty-day sentence if good time were
deducted.
On appeal, the state relies on State v. Jackson,2 where
we discussed the appropriate sentencing ranges for first
offenders convicted of class B felonies.3 We stated in Jackson
that "a probationary sentence - a term involving less than ninety
days of unsuspended incarceration - should be reserved for cases
that are sufficiently mitigated in terms of both the offender and
the offense."4 We went on to state that "a probationary sentence
will be appropriate only when an offender's conduct is
significantly less serious than typical conduct for the offense
and only when the offender's prospects for rehabilitation are
shown to be significantly better than the typical first
offender's conduct."5 The state points out that although Judge
Steinkruger found that Eskridge had good prospects for
rehabilitation, Judge Steinkruger did not find Eskridge's offense
to be mitigated. The state therefore argues that Judge
Steinkruger erred in giving a sentence of less than ninety days
of imprisonment.
The Jackson guidelines are of questionable validity in
drug offenses. The reason for the development of somewhat
different guidelines for drug offenses appears to be rooted in
the fact that drug offenses are easier to compare than other
offenses. Other offenses, such as burglary, can comprise a wide
variety of criminal behavior. But drug offenses can be
categorized more easily in terms of seriousness. And, in fact,
in 1971, the supreme court categorized drug offenses in Waters
v. State.6 We relied on the Waters's categories and subsequent
case law in developing sentencing guidelines in drug cases.7
Most of the sentences we have reviewed of class B
felony drug offenses involve cocaine trafficking. But we would
expect these guidelines to apply to other felony class B felony
drug offenses unless we can articulate a good reason to depart
from these guidelines. The guidelines for first felony offenders
convicted of class B felony drug offenses can be stated as
follows: One, for cases where the defendant has engaged in the
on-going commercial sale of smaller quantities of cocaine, "we
have routinely approved first-offense sentences of up to two
years of unsuspended time[.]"8 Two, for cases where the
defendant has engaged in "a highly lucrative commercial pattern
of cocaine trafficking - one involving large quantities of
cocaine and large amounts of money," we established a guideline
of up to six years with two years suspended.9 Three, for cases
where the defendant engaged in on-going commercial sales and
whose activity fell in between the other two categories, we
approved sentences of up to three years of imprisonment.10
The fact that the sentencing guidelines for first
felony offenders convicted of drug offenses are more lenient than
the Jackson guidelines suggests that the sentencing guidelines
for mitigated drug offenses and offenders might also have greater
flexibility and be more lenient than the Jackson guidelines.
In the present case, Judge Steinkruger chose to
emphasize Eskridge's rehabilitation. She concluded that imposing
a sentence that allowed Eskridge to continue her education
uninterrupted by her term of imprisonment would further this
goal. Although this was certainly a very favorable result for
Eskridge, Judge Steinkruger made it clear that a failure on
probation would have severe consequences. We accordingly
conclude Eskridge's sentence was not clearly mistaken.11
_______________________________
1 AS 11.71.030(a), (c).
2 776 P.2d 320 (Alaska App. 1989).
3 Id. at 326-27.
4 Id. at 327.
5 Id. (footnote omitted).
6 483 P.2d 199 (Alaska 1971).
7 See Kelly v. State, 622 P.2d 432, 440 (Alaska 1981);
LeDuff v. State, 618 P.2d 557, 558 (Alaska 1980); Major v. State,
798 P.2d 341, 344 (Alaska App. 1990), superseded by statute on
other grounds as stated in Knight v. State, 855 P.2d 1347, 1348-
49 (Alaska App. 1993); Bush v. State, 678 P.2d 423, 425-26 & n.1
(Alaska App. 1984); Stuart v. State, 698 P.2d 1218, 1224 (Alaska
App. 1985).
8 Major, 798 P.2d at 344.
9 Id.; see also Stuart v. State, 698 P.2d 1218, 1223-24
(Alaska App. 1985); Lausterer v. State, 693 P.2d 887, 892 (Alaska
App. 1985).
10 See Major, 798 P.2d at 345-46.
11 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974).
