McCombs v. State ( 1988 )

OPINION

COATS, Judge.

Rodney S. McCombs was convicted, based upon his plea of no contest, of two counts of misconduct involving a controlled substance in the third degree, a class B felony. AS 11.71.030(a)(1). McCombs had formerly been convicted of a felony which qualified as a prior felony conviction under AS 12.55.145. He was therefore subject to sentencing as a second felony offender. A second felony offender convicted of a class B felony is subject to a presumptive sentence of four years. AS 12.55.125(d). Superior Court Judge Peter A. Michalski imposed a composite sentence of eight years with four years suspended on the two counts. Judge Michalski ordered this sentence to be consecutive to a federal sentence of eight years’ imprisonment which McCombs is serving for a separate but contemporaneous cocaine offense. Thus, McCombs’ sentences on both his state and federal charges total sixteen years with four years suspended. McCombs appeals, arguing that his sentence is excessive. We conclude that McCombs sentence should not have exceeded a total of eight years’ imprisonment on both his federal and state offenses. Accordingly, we reverse.

McCombs was thirty-two years of age at the time of sentencing. In 1974, he was convicted of a felony under Oregon law for an offense which arose from a marijuana party which McCombs gave in his home. Police seized two pounds of marijuana. McCombs was placed on probation for three years as a result of this offense. In 1975, also in Oregon, McCombs was convicted of a felony for possession of cocaine. His previous probation was revoked, and he was sentenced to four years’ imprisonment. He served sixteen months in an Oregon institution. McCombs was apparently a model inmate in prison and was paroled. He was satisfactorily discharged from his probation in 1979.

In October 1986, in Alaska, McCombs made two sales of cocaine. These sales, each consisting of one-eighth ounce, were for $320 and $300 respectively, and they constituted the state offenses for which McCombs was sentenced. On January 9, 1987, McCombs sold one pound of cocaine for $23,000. This transaction resulted in a federal conviction and sentence. McCombs was sentenced to eight years’ imprisonment with six years of probation on the federal charge.

In opposing McCombs’ sentence appeal, the state emphasizes McComb’s record of cocaine offenses and points to a legislative preference for consecutive sentences. AS 12.55.025(e) and (g); see also State v. Andrews, 707 P.2d 900, 908-10 (Alaska App.1985), aff'd, 723 P.2d 85 (Alaska 1986). The state appears to argue that we should look at the state sentences in isolation, thus ignoring the fact that the state sentences are consecutive to the federal sentence. It seems clear to us, however, that we should consider both the state and the federal sentences in reviewing McCombs’ sentence. First, strictly as a legal proposition, the Alaska Supreme Court has formerly indicated that when a state sentence is imposed consecutively to a federal sentence, it is appropriate for the reviewing court to consider the overall length of the combined sentences in deciding whether the state sentence is excessive. Neal v. State, 628 P.2d 19, 21 (Alaska 1981). Second, as a matter of common sense, it appears that it would be unfair to consider only McCombs’ state sentence in determining whether his sentence was excessive. Basically, we believe that McCombs’ offenses, both state and federal, must be looked at in context. McCombs should not be disadvantaged in the Alaska courts because he was prosecuted by both state and federal authorities.

McCombs’ current drug convictions, state and federal, tend to show his involvement in commercial drug sales. As we stated in Stuart v. State, 698 P.2d 1218, 1224 (Alaska App.1985) (footnote omitted), “In context, multiple charges serve only to validate the conclusion that the person making the sales is involved in the commercial distribution of cocaine and to establish the scope of the illegal enterprise.” The facts of the federal offense show that McCombs was both willing and able to deal in “large quantities” of cocaine as we have defined that term. Lausterer v. State, 693 P.2d 887, 891 (Alaska App.1985) (it is ordinarily appropriate to regard eight ounces or more of cocaine as indicative of commercial activity at the wholesale level). Although there is a statutory legislative preference for consecutive sentences, the legislative preference for consecutive sentences does not require McCombs to be sentenced to a greater sentence than similarly situated offenders. Thus, in spite of AS 12.55.-025(e) and (g), it seems clear that the overall legislative mandate is to provide more uniform and predictable sentences. Juneby v. State, 641 P.2d 823, 829-30 (Alaska App.1982), modified on other grounds, 665 P.2d 30 (Alaska App.1983).

McCombs’ criminal conduct is generally similar to that described in cases such as Rivas v. State, 706 P.2d 1202 (Alaska App.1985); Marin v. State, 699 P.2d 886 (Alaska App.1985); Stuart, 698 P.2d at 1220-21; and Lausterer, 693 P.2d at 889. In these cases, we approved sentences not to exceed six years with two years suspended for offenders engaging in commercial activity in cocaine at the wholesale level. These former cases, however, involved first offenders. McCombs has two prior drug-related felony convictions, one of which qualified as a prior felony for purposes of presumptive sentencing, and he has previously served over sixteen months in prison. McCombs’ prior record must be taken into account. In Rivas, Marin, Stuart, and Lausterer, we recognized the substantial nature of the offenses and approved sentences which were potentially greater than the four-year presumptive sentence for a second felony offender. Even if McCombs were a third felony offender convicted of a class B felony, however, he would only be subject to a presumptive sentence of six years. We recognize, however, that McCombs sentencing would be subject to aggravating factors if we considered his federal charges. See, e.g., AS 12.55.155(c)(25) (offense involved large quantity of controlled substance).

McCombs is a second felony offender for purposes of presumptive sentencing. A sentence of eight years is twice the presumptive sentence for a second felony offender. Therefore, we conclude that McCombs should not have been sentenced to more than eight years’ imprisonment had all his offenses been state offenses. Moreover, we see no reason why McCombs should receive a total of more than eight years’ imprisonment merely because one of his offenses was prosecuted as a federal offense. In reaching this conclusion, we note specifically that Judge Michalski did not find McCombs to be an offender who was incapable of rehabilitation and whose isolation for a term in excess of eight years was necessary to protect the public. In fact, the sentencing comments indicate that Judge Michalski believed McCombs was amenable to rehabilitation. Accordingly, we find that Judge Michalski was clearly mistaken in imposing the state sentences consecutively to McCombs' eight-year federal term. We conclude that the state sentences should have been imposed concurrently to the federal sentence.¹

The sentence is VACATED and the case is REMANDED for resentencing consistent with this opinion.

SINGLETON, J., concurs and dissents.

1 . Judge Michalski ordered McCombs to pay restitution for the money which McCombs received from undercover agents in connection with the state charges. The state represented that the money spent by state agents totalled $650. The written judgment, however, provides for McCombs to forfeit his 1987 Permanent Fund Dividend check and does not indicate that the total amount of restitution should not exceed $650. The 1987 Permanent Fund Dividend exceeds $650. The state agrees that the judgment should be amended to limit the amount of restitution to $650. The state’s concession is well-founded. Marks v. State, 496 P.2d 66 (Alaska 1972). We therefore order the written judgment to reflect that McCombs is to pay restitution limited to $650.