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Pocock v. State (2/24/2012) ap-2347

Pocock v. State (2/24/2012) ap-2347

                                               NOTICE
 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



RICHARD POCOCK, 

                                                             Court of Appeals No. A-10574 

                                Appellant,                  Trial Court No. 3PA-08-2824 Cr 



                        v. 

                                                                    O    P  I  N  I  O  N 

STATE OF ALASKA, 



                                Appellee.                  No. 2347     -   February 24, 2012 



                Appeal from the Superior Court, Third Judicial District, Palmer, 

                Eric Smith, Judge. 



                Appearances:       Brooke     Berens,   Assistant   Public   Advocate, 

                Appeals & Statewide Defense Section, and Rachel Levitt and 

                Richard     K.  Allen,   Public    Advocates,    Anchorage,     for  the 

                Appellant.    Douglas   H.   Kossler,   Assistant   Attorney   General, 

                Office   of   Special   Prosecutions   and   Appeals,   Anchorage,   and 

                John J. Burns, Attorney General, Juneau, for the Appellee. 



                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 

                Judges. 



                MANNHEIMER, Judge. 



                Richard Pocock was convicted of three counts of second-degree controlled 



substance misconduct for three sales of heroin.  Two of these sales involved 0.03 grams 


----------------------- Page 2-----------------------

of heroin, and the third sale involved 0.06 grams.   The selling price for each of the three 



sales was $50. 



               (One ounce equals 28.35 grams.          Thus, two of Pocock's sales involved 



slightly more than one-thousandth of an ounce, and the third sale involved slightly more 



than two-thousandths of an ounce.) 

               Second-degree   controlled   substance   misconduct   is   a   class   A   felony. 1 



Because Pocock was a third felony offender, he faced a presumptive sentencing range 

of 15 to 20 years' imprisonment for this offense. 2 



               During the sentencing proceedings, Pocock proposed two mitigating factors 



under AS 12.55.155(d): (d)(9) - that his offenses were based on conduct that was 



among the   least serious within the definition of the offense, and (d)(13) - that his 



offenses involved small quantities of the controlled substance.          Proof of either of these 



mitigators would have authorized the superior court to impose a sentence of as little as 



7 years to serve (i.e., one-half of the minimum sentence specified in the applicable 

presumptive sentencing range). 3 



               The superior court rejected both of the proposed mitigators and sentenced 



Pocock to a 15-year term of imprisonment - the bottom of the applicable presumptive 



sentencing range.     In this appeal, Pocock asserts that the superior court should have 



found his two proposed mitigating factors, and that the superior court should therefore 



be directed to consider whether Pocock should receive a sentence of less than 15 years' 



imprisonment. 



    1   AS 11.71.020(d). 



    2   See AS 12.55.125(c)(4). 



    3   AS 12.55.155(a)(2). 



                                              - 2 -                                           2347 


----------------------- Page 3-----------------------

                For    the  reasons   explained     here,  we   conclude     that  the  superior   court 



committed error when it rejected mitigator (d)(13) - the "small quantities" mitigator. 



Accordingly, we vacate Pocock's sentence and we remand his case to the superior court 



for re-sentencing. 



        Why   we   conclude   that   the   facts   of   Pocock's   case   establish   the   "small 

        quantities" mitigator, AS 12.55.155(d)(13) 



                As we have explained, Pocock engaged in three sales of heroin, each for 



$50.  Two of these sales involved three-hundredths of a gram (0.03 grams), and the third 



sale involved six-hundredths of a gram (0.06 grams).                These quantities were literally 



microscopic.     (By comparison, a typical four-inch-high jar of a powdery spice such as 



ground mustard normally contains 45 to 50 grams.) 



                At the sentencing hearing, the judge agreed with Pocock that these "were 



certainly small amounts".         However, the judge rejected mitigator (d)(13) because he 



concluded that these amounts of heroin "were not small in the context of what was sold, 



or the purposes for which [the drug was] possessed". 



                In Knight v. State , 855 P.2d 1347, 1349 (Alaska App. 1993), this Court 



stated   that   a   "small   quantity"   of   a   controlled   substance   (for   purposes   of   the   "small 



quantity" mitigator) is a quantity that is uncharacteristically small when compared to the 



broad middle ground of conduct encompassed by the statute defining the offense. Citing 



Knight , the sentencing judge rejected Pocock's proposed "small quantities" mitigator 



because the judge concluded that the amounts of heroin at issue in Pocock's case were 



"typical" single-use amounts of heroin. 



                                                 - 3 -                                             2347
 


----------------------- Page 4-----------------------

                 The sentencing judge's analysis of this question was improper as a matter 



of law.  As this Court explained in Dollison v. State , 5 P.3d 244, 247-48 (Alaska App. 



2000): 



                 The "typical drug case" referred to in Knight is a drug case 

                 where   the   quantity   involved   in   the   case   falls   in   the   broad 

                 middle ground penalized by the statute when considering the 

                 nature of the substance, its form, its purity, its commercial 

                 value, and its relative availability or scarcity.          The "typical 

                 drug   case"   does   not   refer   to   the   amount   that   is   typically 

                 prosecuted   or   the   typical   case   that   appears   on   a   judge's 

                 docket. 



                 Here, the sentencing judge gave no consideration to the form or purity of 



the heroin that Pocock sold.   Nor did the judge consider the relatively small commercial 



value of the heroin ($50 for each of three sales).            Instead, the judge focused on the fact 



that the amount of heroin, although small, was typical for a single "hit" of the drug. 



                 But as Dollison states, the question is not whether 0.03 grams of heroin (or 



0.06 grams of heroin) is an amount "that is typically prosecuted".                 Rather, the question 



is whether the sale of this amount of heroin falls within the broad middle ground of the 



conduct prohibited by the statute. 



                 The statute that Pocock was convicted of violating, AS 11.71.020(a)(1), 



prohibits     the  unauthorized      sale   or  delivery    of  any   amount,     large   or  small,   of  a 

Schedule   IA   controlled   substance   (such   as   heroin). 4      This   statute   covers   the   entire 



spectrum of heroin sales, from sales of microscopic amounts to sales of fifty pounds or 



more. 



    4   See AS 11.71.140 (classifying heroin as a Schedule IA controlled substance). 



                                                   - 4 -                                                2347 


----------------------- Page 5-----------------------

                When the Alaska legislature created the "small quantities" mitigator as part 



of   its   1982   revision   of   Alaska's   drug   laws,   the   legislature   did   not   enact   a   statutory 

definition of "small quantity". 5      However, in the preface to that legislation (section 1 of 



the session law), the legislature declared that one of its primary goals was to pattern 



Alaska's     drug   laws   after  the  Uniform     Controlled     Substances     Act   and   the  federal 

Controlled Substances Act of 1970. 6 



                Federal law, like Alaska law, prohibits the unauthorized sale or delivery of 



any amount of heroin.   But unlike Alaska law, the federal sentencing guidelines provide 



a statutory indication of what quantities of heroin are considered "small". 



                Under these guidelines, the most severe sentencing range for sales of heroin 



(base offense level 38) applies to sales of 30 kilograms or more (i.e., 66 pounds or 

more). 7   There are twelve intermediate sentencing ranges with cut-offs of 10 kilograms 



(22 pounds), 3 kilograms (6.6 pounds), 1 kilogram (2.2 pounds), 700 grams, 400 grams, 



100 grams, 80 grams, 60 grams, 40 grams, 20 grams, 10 grams, and 5 grams. 



                The fourteenth and least severe sentencing range for sales of heroin under 



federal law (base offense level 12) applies to sales or deliveries of less than 5 grams of 

heroin. 8   In comparison, Pocock's largest sale was 0.06 grams of heroin.                 Even when 



Pocock's three sales are considered in combination, they total only 0.12 grams - 40 



times less than the 5-gram ceiling of the lowest federal sentencing range. 



    5   SLA 1982, ch. 45. 



    6   SLA 1982, ch. 45,  1.  See also  1981 House Journal, Supplement No. 60 (June 19) 



(discussing and analyzing Senate Bill 190, the bill that became SLA 1982, ch. 45). 



    7   United States Sentencing Guidelines Manual (2011 edition), Section 2D1.1(c). 



    8   Ibid. 



                                                  - 5 -                                             2347
 


----------------------- Page 6-----------------------

                 Based on the foregoing, we conclude that Pocock's three offenses involved 



"small quantities" of heroin, and thus the superior court should have found mitigator 



(d)(13).    We   reach   this   conclusion   regardless   of   whether   we   owe   deference   to   the 



superior court's ruling. 



                 In  Knight ,   this   Court   declared   that   the   issue   of   "small   quantities"   was 



primarily an issue of fact rather than an issue of law.               855 P.2d at 1349.       But as we 



pointed out in  Hoekzema v. State , 193   P.3d 765 (Alaska App. 2008), this aspect of 



Knight is now questionable: 



                         [T]he Alaska Supreme Court's decision in Michael v. 

                 State,   115   P.3d    517   (Alaska    2005),    casts  doubt    on   our 

                 assertion   in Knight  that   this   issue   is   primarily   one   of   fact 

                 rather than law.    In Michael , the supreme court held that the 

                 decision as to whether a defendant's conduct is among the 

                 least   serious   within   the   definition   of   an   offense   (i.e.,   the 

                 decision as to whether mitigator (d)(8) is proved) is a mixed 

                 question of fact and law - and that, once the facts have been 

                 determined, the issue of whether those facts constitute "least 

                 serious" conduct is purely  a question of law.           Michael , 115 

                 P.3d at 519.    The supreme court declared that the answer to 

                 these questions "should not vary from case to case or judge 

                 to judge".  Id. at 520. 



Hoekzema , 193 P.3d at 772. 



                 If, as suggested by Michael , it is a question of law whether a particular 



quantity of a controlled substance is a "small" quantity, then we (as an appellate court) 



owe no deference to the sentencing judge's view of this matter. 



                 But even assuming that Knight continues to be the governing law on this 



point, and that we owe deference to the sentencing judge's decision, we still conclude 



                                                   - 6 -                                              2347
 


----------------------- Page 7-----------------------

that the sentencing judge erred when he ruled that Pocock had failed to prove mitigator 



(d)(13). 



                Pocock's sentencing judge rejected this mitigator primarily on the ground 



that Pocock's sales involved quantities that were typical for single-dose sales of heroin. 



But   this   was   the   wrong   standard.  As   we   explained   in Dollison ,   5   P.3d   at   248,   the 



question of "small quantity" does not hinge on "the amount that is typically prosecuted", 



nor does it hinge on the   amount found in "the typical case ... on a judge's docket". 



Rather, a "small quantity" is a quantity that is small in comparison to "the broad middle 



ground" of the conduct penalized by the statute. 



                In Dollison itself, we concluded that the sentencing judge should have ruled 



that the defendant's possession of 0.05 grams of cocaine, with a commercial value of 



$10.00, constituted a "small quantity".  We reach a similar conclusion in Pocock's case. 



Given the range of heroin sales prohibited by the second-degree controlled substance 



misconduct statute, Pocock's sentencing judge should have found that Pocock's three 



sales - totaling 0.12 grams of heroin, with a total commercial value of $150.00 - 



represented "small quantities".         Even if this issue is a question of fact, the sentencing 



judge's rejection of mitigator (d)(13) was clearly erroneous. 



         Given our decision regarding mitigator (d)(13), we conclude that Pocock's 

        claim regarding the other proposed mitigator, (d)(9), is moot 



                Pocock's remaining claim on appeal is that the sentencing judge should 



have ruled in his favor on another proposed mitigating factor:               (d)(9) - that Pocock's 



conduct   was   among   the   least   serious   conduct   encompassed   by   the   definition   of   the 



offense (unauthorized sale or distribution of heroin). 



                                                  - 7 -                                             2347
 


----------------------- Page 8-----------------------

               Proof of this second mitigating factor would make no difference to the 



superior court's sentencing authority.     As we explained earlier in this opinion, Pocock 



faces   a  presumptive   sentencing   range   of  15  to  20  years'  imprisonment.   Under 



AS 12.55.155(a)(2), when the low end of the applicable presumptive sentencing range 



exceeds 4 years' imprisonment, proof of any single mitigator will give the sentencing 



judge the authority to impose a sentence below the presumptive range, so long as the 



defendant's active term of imprisonment is at least fifty percent of the low end of the 



range.   In Pocock's case, because the facts establish mitigator (d)(13), the superior court 



will have the authority to sentence Pocock to as little as 7 years to serve.     Proof of a 



second mitigating factor will not affect this sentencing authority:  additional mitigators 



do not further increase the range of sentences available to the superior court, nor do they 



create any presumption about what sentence should be imposed within that available 



range. 



               Moreover, in Pocock's case, his claim of "conduct among the least serious" 



is closely related to his claim of the "small quantities" mitigator, (d)(13).      Pocock's 



argument in favor of the "conduct among the least serious" mitigator rests primarily on 



the underlying facts that Pocock engaged in sales of only small quantities of heroin, for 



small amounts of money, to   a friend.       Now   that we have   ruled   that Pocock   proved 



mitigator (d)(13), and that the superior court can sentence Pocock to as little as 7 years 



to serve, the superior court can take these same underlying facts into account when 



formulating Pocock's sentence, even though Pocock might fail to meet the statutory 

requirements for proving mitigator (d)(9). 9 



    9  See Garner v. State, 266 P.3d 1045, 1050-51 (Alaska App. 2011) (Judges Mannheimer 



& Bolger, concurring); Smith v. State, 711 P.2d 561, 572 n. 8 (Alaska App. 1985). 



                                            - 8 -                                        2347 


----------------------- Page 9-----------------------

                 In other words, to the extent that Pocock's sentencing judge believes that 



Pocock's conduct qualifies (or does not qualify) as among the least serious sales of 



heroin,   the   judge   is   authorized   to   take   this   into   account   when   choosing   Pocock's 



sentence   within   the   range   of   available   sentences,   because   this   factor   is   a   relevant 



sentencing consideration under the Chaney sentencing criteria codified in AS 12.55.005. 



                 For these reasons, we believe there is little or no chance that the superior 



court's   sentencing   decision   would   be   altered   by   the   technical   proof   or   disproof   of 



mitigator (d)(9). Accordingly, we conclude that Pocock's argument regarding mitigator 



(d)(9) is moot. 



                 Compare Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007) (holding 



that the issue of a potential mitigator was moot when the sentencing judge already had 



the authority to sentence the defendant to no imprisonment). 



        Conclusion 



                 For the reasons explained in this opinion, we conclude that Pocock proved 



mitigating factor (d)(13), and therefore the superior court had the authority to sentence 



Pocock to as little as 7 years to serve.  Accordingly, we VACATE Pocock's sentence, 



and we remand his case to the superior court for re-sentencing. 



                 (We do not retain jurisdiction of this case.) 



                                                   - 9 -                                              2347
 

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