Wharton v. State , 1979 Alas. LEXIS 479 ( 1979 )

BURKE, Justice,

dissenting.

Article IV, section 1 of the Constitution of Alaska states that “[t]he jurisdiction of courts shall be prescribed by law.” As used in that section the phrase “by law” means “by the legislature.” Alaska Const, art. XII, § 11. See Proceedings of the Alaska Constitutional Convention 582, 721-29, 732, 2820-30, 2843-51, 2854-55. Exercising the power given to it by article IV, section 1, the legislature, in 1969, enacted legislation authorizing appellate review of criminal sentences under certain circumstances. Ch. 117, SLA 1969.

Such legislation came after our decision in Bear v. State, 439 P.2d 432 (Alaska 1968), wherein we held that this court “does not have jurisdiction to review and remand or to review and revise a criminal sentence for abuse of discretion.” Id. at 435. Section 1 of the 1969 act amended AS 22.05.010 by adding a new subsection:

(b) The supreme court has jurisdiction to hear appeals of sentences of imprisonment lawfully imposed by the superior courts on the grounds that the sentence is excessive or too lenient and, in the exercise of this jurisdiction, may modify the sentence as provided by law and by the constitution of this state. For the purpose of considering appeals of sentences on these grounds, the supreme court may sit in divisions.

Section 2 amended AS 22.10.020(a) to allow, among other things, “[a]n appeal to the superior court ... on the ground that a [district court] sentence of imprisonment of 180 days or more was excessive . .” Pertaining to appeals from the superior court, section 4 of the act amended AS 12.55 by adding a new section, AS 12.-55.120. Subsection (a) of AS 12.55.120 provides in part: “A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms exceeding one year may be appealed to the supreme court by the defendant upon the ground that the sentence is excessive.”

To me, the language of the 1969 act clearly indicates that the legislature intended that appellate review of criminal sentences for excessiveness be available, but only where the sanction imposed exceeds certain limits, and that this court’s jurisdiction to review sentences of the superior court be limited to cases involving imprisonment “for a term or for aggregate terms exceeding one year.” Since Wharton’s sentence is not for a term exceeding one year, I conclude that this court lacks jurisdiction to review it for excessiveness.

Whatever the situation might have been at the time of the decision in Bear, matters changed when the legislature thereafter saw fit to exercise its power under article IV, section 1. Before that time, there might have been much to recommend the view expressed by Justice Rabinowitz in his scholarly dissent in Bear, namely: that this court has jurisdiction to review criminal sentences under the general grant of “final appellate jurisdiction” contained in article IV, section 2. However, even if we assume that Justice Rabinowitz was correct, neither his dissent in Bear nor the majority opinion in this case explains to my satisfaction how it is now possible to ignore the limitation which the legislature placed on our jurisdiction when it adopted AS 12.55.120(a). If both sections 1 and 2 of article IV are to be given effect, it seems to me that section 1 must be read as empowering the legislature to place such a limitation on the general grant of appellate jurisdiction that the majority says is contained in section 2.