Strachan v. State , 1980 Alas. LEXIS 719 ( 1980 )

BURKE, Justice,

dissenting.

I respectfully dissent.

Citing United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978), the majority deems it necessary to vacate and remand for resentencing, because “the remarks of the sentencing judge and the size of the additional penalty indicate that the sentence was enhanced as punishment for the alleged perjury, and not because the alleged perjury might have been used as an indication of Strachan’s potential for rehabilitation.” This, I believe, amounts to an erroneous reading of Grayson and a misinterpretation of the superior court’s sentencing remarks.

Unquestionably, Strachan’s sentence on the drug charge was increased because the sentencing judge believed he had committed perjury at his trial. But that is exactly the practice approved of by the United States Supreme Court in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).¹ Moreover, the sen-fence was increased only after the sentencing judge carefully considered Strachan’s history and his failure to learn from his past mistakes.² In other words, I think the superior court did consider Strachan’s perjury “as an indication of [his] potential for rehabilitation.”

Since I am not convinced that the court was otherwise clearly mistaken in imposing a term of seven years, I would affirm Stra-chan’s sentence. McClain v. State, 519 P.2d 811, 813 (Alaska 1974).

1 . In Grayson, the United States Court of Appeals, Third Circuit, ordered the defendant’s sentence vacated, after the sentencing judge added an increment to the sentence he might not otherwise have imposed because he believed the defendant had committed perjury at his trial. Citing Poteet v. Fauver, 517 F.2d 393 (3rd Cir. 1975), the Court of Appeals stated: “Poteet mandates that no additional penalty may be imposed upon a defendant because the trial judge believes that the defendant lied while testifying. Here, Grayson’s sentence was unquestionably increased for just this reason. His sentence, therefore, cannot stand.” United States v. Grayson, 550 F.2d 103, 108 (3rd Cir. 1976). On certiorari, the United States Supreme Court reversed. Significantly, I think, the Supreme Court, “remand[ed] for reinstatement of the sentence of the District Court.” 438 U.S. at 55, 98 S.Ct. at 2618, 57 L.Ed.2d at 593 (emphasis added).

2 . In his sentencing remarks, the trial judge stated:

I want to make it clear you’re being sentenced for nothing else but what you were convicted of. [T]he only things you’re being sentenced for are the sale and possession of cocaine. . . . [I]t is apparent that you didn’t learn from the mistakes you made in your youth and from the fact that you’d been previously convicted of 2 serious crimes plus several others. That lesson is that crime is wrong and that we learn from what we’ve done in the past and don’t do it in the future. Further, while on bail you committed carrying a concealed weapon. Therefore, because you’re older, you’re not in need of vocational rehabilitation, you appear to respect the law very little, it is necessary to impose a significant sentence in order to deter you from unlawful conduct in the future. And because you lied on the witness stand in the course of your trial I believe that it’s appropriate that the sentence be enhanced to some degree. ■. . . For the record, the fact you lied on the witness stand is taken into account to increase the sentence from what would have been a 5 year sentence to a 7 year sentence. [Emphasis added.]