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State of Alaska v. McPherson (7/2/93), 855 P 2d 420
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
Petitioner, ) File No. S-4294
v. ) 3AN 99 4201 CR
DONALD J. McPHERSON, ) O P I N I O N
Respondent. ) [No. 3970 - July 2, 1993]
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Anchorage, Karl S. Johnstone,
Appearances: John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions & Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
Rex Lamont Butler, Anchorage, for Respondent.
Before: Moore, Chief Justice, Rabinowitz,
Burke, Matthews, and Compton, Justices.
MATTHEWS, Justice, with whom RABINOWITZ,
Justice, joins dissenting.
The State of Alaska petitions for hearing from the
decision of the court of appeals reversing the trial court's
sentence of twenty years imprisonment for defendant Donald J.
McPherson.1 The State challenges the court of appeals' decision
to remand the case for resentencing not to exceed fifteen years
of imprisonment, including suspended time. We reverse and remand
for resentencing. We do not place a maximum length of term on
the sentence or express a view that 15 years is necessarily an
acceptable term of imprisonment.
II. Facts and Proceedings
In July, 1988, Donald J. McPherson was indicted for
drug dealing at Jack's Arcade. During his first week on the job
at Jack's, McPherson sold drugs to an 18-year-old undercover
informant on five different occasions. Four transactions
involved the sale of marijuana (one gram each time) and the fifth
involved the sale of two grams of cocaine. McPherson was twenty-
five years old when he committed the offenses.
This was not McPherson's first encounter with the law.
McPherson previously served three years probation for two
felonies, burglary in the first degree and theft in the second
degree. During his first year of probation, McPherson was
convicted of another felony, assault in the third degree. For
this offense, he served a two year presumptive term. Although he
completed an alcohol recovery program during his sentence,
McPherson resumed alcohol and drug use shortly after his release.
After submitting a positive urinalysis for cocaine, McPherson was
returned to custody on July 1, 1988. McPherson was on work
release for the third degree assault conviction when he was
charged with the present offenses.
A jury convicted McPherson of one count of misconduct
involving a controlled substance in the first degree (sale of
cocaine to a minor), an unclassified felony. McPherson was also
convicted of four counts of misconduct involving a controlled
substance in the third degree (sale of marijuana to a minor).
Because of his two previous felony convictions, the trial court
considered McPherson a third felony offender for sentencing
The court sentenced McPherson to twenty years
imprisonment for the sale of cocaine to minors. This sentence
was based upon a benchmark of twenty to twenty-five years. Judge
Johnstone established this benchmark after first acknowledging
that he did not "know the benchmark in this type of case."
Additionally, Judge Johnstone sentenced McPherson to concurrent
six-year terms for each count of misconduct involving the sale of
marijuana to minors.
The court of appeals affirmed McPherson's conviction
but reversed his sentence. The court of appeals found that Judge
Johnstone's sentence was "clearly erroneous" and remanded the
case to the trial court with directions to impose a sentence of
not greater than fifteen years imprisonment including suspended
time. McPherson v. State, 800 P.2d 928, 932 (Alaska App. 1990).
The sentence imposed by a trial court should be
affirmed unless it is clearly mistaken. State v. Wentz, 805 P.2d
962, 965 (Alaska 1991). We hold that the trial judge erred in
this case by creating and then relying on a benchmark of twenty
to twenty-five years imprisonment for an unclassified felony.
The trial judge established a benchmark of twenty to twenty-five
years in an arbitrary manner and failed to provide a supporting
rationale in his memorandum decision. While the trial court then
correctly applied the Chaney2 criteria to find the appropriate
sentence, the result is clearly erroneous because it is founded
on the assumption of an arbitrary benchmark.3 AS 12.55.005; State
v. Chaney, 477 P.2d 441 (Alaska 1970).
While we agree with the court of appeals that the case
must be remanded for resentencing, we do not agree that a twenty
year sentence is necessarily excessive. To support its
conclusion that McPherson's sentence could not exceed fifteen
years, the majority below compared the facts of the present case
with prior, dissimilar case law. McPherson, 800 P.2d at 931-32
and n. 1. Here, the court of appeals erred. In reviewing the
reasonableness of a particular sentence, the appropriate
touchstone is not unrelated case law. Rather, the appellate
court should adhere to the "clearly mistaken"test. As we noted
in State v. Bumpus, 820 P.2d 298, 305 (Alaska 1991) (quotation
implies a permissible range of reasonable
sentences which a reviewing court, after an
independent review of the record, will not modify
. . . ." Although `permissible range of
reasonable sentences' has never been precisely
defined, it is obviously a function in any
particular case of such considerations as the
presence of aggravating factors, the psychological
make-up of the defendant, the need for isolation,
and the sentences imposed in comparable cases . .
Further, as we noted in State v. Wentz, 805 P.2d 962, 965 (Alaska
1991), the "particular facts of the individualized case [must be
examined] in light of the total range of sentences authorized by
the legislature for the particular offense."
Using this method, we find that a twenty-year sentence
in this case is not necessarily excessive. The statute regarding
misconduct involving a controlled substance in the first degree
provides a sentencing range of five to ninety-nine years.
AS 11.71.010(c); AS 12.55.125(b). A review of McPherson's acts
in the present case alone support a sentence closer to that of
the statutory minimum. However, McPherson was not a first time
offender. He has two prior felony convictions. In fact, he was
still on work release from his most recent conviction when he
committed the present offense. Further, there is insufficient
prior case law concerning the unclassified felony offense of sale
of cocaine to a minor for a reviewing court to determine, in the
first instance, what the appropriate maximum sentence should be.
In light of these considerations, the trial court's twenty year
sentence is not necessarily excessive.
We agree with dissenting Chief Judge Bryner that, "[a]t
this juncture, . . . it [is] premature to declare either that a
twenty-year sentence would necessarily be excessive or that a
fifteen-year sentence would necessarily be acceptable."
McPherson, 800 P.2d at 935. Rather than dictate a sentence, we
prefer to let the trial court determine the sentence, using the
standard articulated in this opinion. See State v. Graybill, 695
P.2d 725, 729 (Alaska 1985) (trial court has primary
responsibility to determine appropriate sentence); Bumpus, 820
P.2d at 305; Wentz 805 P.2d at 965.
That portion of the court of appeals' opinion which
directs the trial court to impose a sentence of not greater than
fifteen years of imprisonment, including suspended time, is
REVERSED. The case is REMANDED for resentencing without a
limiting direction as to maximum length of sentence.
MATTHEWS, Justice, with whom RABINOWITZ, Justice, joins
The opinion of the court of appeals is in accordance
with the applicable statutes and case law, and, in my view,
correctly resolves this case. I would, therefore, affirm the
court of appeals.
1. We granted the State's petition for hearing, with
Justice Matthews dissenting, on March 12, 1991.
2. In considering the Chaney factors, Judge Johnstone
concluded that McPherson was a "very poor candidate for
rehabilitation," that a substantial sentence was necessary to
deter McPherson and others from selling drugs to minors, and that
a lengthy term was necessary to isolate McPherson to protect the
public. Judge Johnstone also found that McPherson had a
willingness to sell drugs to minors. He found that McPherson,
while working at the arcade, made 50-70 sales of marijuana per
day to juveniles as young as fifteen years old.
3. Benchmarks must be based on "past sentencing decisions
dealing with similarly situated offenders." McPherson at 933
(Bryner, C.J., dissenting).