Faulkner v. State , 1968 Alas. LEXIS 181 ( 1968 )

OPINION

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

DIMOND, Justice.

Appellant was indicted on seven counts of drawing, checks with insufficient funds with intent to defraud in violation of AS 11.20.230,¹ and one count of issuing a check without funds or credit in violation of AS 11.20.210.² Appellant entered pleas of guilty to all eight counts. The superior court sentenced him to five years imprisonment on each of the seven counts involving a violation of AS 11.20.230 and one year on the count involving a violation of AS 11.20.210. The sentences were ordered to run consecutively — for an aggregate sentence of 36 years. The court also recommended that the parole board not consider appellant for parole until he had served at least five years of his sentence.

Appellant contends on this appeal that the sentence was excessive and constituted cruel and unusual punishment, that the superior court erred in relying on a Youth & Adult Authority pre-sentence report which contained material misrepresentations, and that the court erred in denying appellant’s motion in arrest of judgment and to set aside judgment in that three counts of the indictment failed to state a crime.

In Bear v. State ³ we held that we do not have the authority to review and revise a criminal sentence for abuse of discretion. That case disposes of appellant’s contention that under our general appellate jurisdiction we have the authority to modify a sentence on appeal for an abuse of discretion of the sentencing court.

Appellant also contends, however, that the sentence is so excessive in relation to the crimes committed that it represents the infliction of cruel and unusual punishment contrary to the prohibitions contained in the federal and state constitutions.⁴ We did not rule upon this point in the Bear case. We do so now.

There is some authority for the proposition that it is possible for a sentence within statutory limits to be so disproportionate to the offense committed as to constitute cruel and unusual punishment.⁵ However, a majority of the jurisdictions, federal and state, hold the opposite.⁶ The Supreme Court of Connecticut, for example, has said:

When the objection is to the sentence and not to the statute under which the sentence was imposed, the sentence is not cruel or unusual if it is in conformity with the limit fixed by statute. When the statute does not violate the constitution, any punishment which conforms to it cannot be adjudged excessive since it is within,the power of the legislature and not the judiciary to determine the extent of the punishment which may be imposed on those convicted of crime.⁷

And the Florida Court of Appeals has put the matter this way:

The rationale of this rule is that * * * if the statute does not violate the Constitution, then any punishment set in conformity to it cannot be adjudged excessive for the reason that it is not within judicial but legislative power, controlled only by constitutional provisions, to declare what punishment may be assessed against those convicted of crime.⁸

I have no quarrel with the proposition that it is within the power of the legislature and not the judiciary to determine what punishment may be assessed against those convicted of crime. But such a power is subject to constitutional limitations, and it is this court’s function to determine whether such limitations have been exceeded.⁹ I would adopt what appears to be the minority view that the bare fact that a sentence is within the maximum prescribed by the legislature does not prevent it from violating the constitutional ban against cruel and unusual punishment.¹⁰ I recognize the fact that ordinarily a sentence with statutory limits should not be disturbed. But I also believe that it is conceivable that in extraordinary circumstances a sentence, although within the limits prescribed by law, may be so “disproportionate to the offense committed as to be completely arbitrary and shocking to the sense of justice,”¹¹ and thus would amount to an unconstitutional cruel and unusual punishment.

That, I believe, is the situation here. It is a precept of justice that punishment for crime should be graduated in proportion to the offense.¹² I believe that that precept has not been followed in this case. Appellant wrote eight bad checks totalling $1,384.35. The largest check written and the largest monetary loss suffered by any one person was $375. There is here what in essence amounts to a single spree of passing bad checks which, according to the indictment, took place in a single day. A sentence of 36 years for this activity is in my opinion not proportionate to the offense. The offense is not of sufficient gravity to justify imposing what amounts to a life sentence on appellant.¹³ I am not unaware of appellant’s criminal record.¹⁴ But I believe that even with appellant’s history of criminal activity a sentence of such severity is not justified. I conclude that within the meaning of our statement in Green v. State¹⁵ that the punishment inflicted in this case is so disproportionate to the offenses committed as to be completely arbitrary and shocking to the sense of justice and thus amounts to cruel and unusual punishment prohibited by the federal and state constitutions. The sentences of the court below should be vacated and the case remanded for resentencing.

The Chief Justice’s view that the sentence imposed does not constitute cruel and unusual punishment is based mainly on the assumption that at some undesignated time, perhaps in less than one year, appellant will become eligible for and will be released on parole. This is pure assumption and nothing else. It can just as properly be assumed that he will not be paroled. In fact the latter assumption has more basis in probability than the one made in the dissent. Appellant’s “bad” record or proclivity for crime, which the dissent relies upon to justify the imposition of a 36 year sentence, is the very factor that might well convince the parole board that appellant is a bad parole risk and should not be released until he has served his entire sentence.

The dissent states that “The original sentence imposed by the judge was, in effect, a sentence of 0-36 years.” This statement implies that Alaska operates under a system of indeterminate sentencing, which it does not. The sentence imposed was 36 years, and not something less than that. As I have pointed out, whether the time that appellant must actually serve will be 36 years or something less, depending on action by the parole board, is something that cannot be determined by the sentencing court or by this court. The fact that appellant may have to serve the whole 36 year sentence causes the sentence imposed to violate the constitutional ban against cruel and unusual punishment.

Another aspect of the sentence requires our consideration. Judgment was entered and sentence imposed on May 11, 1967. Under AS 33.15.180¹⁶ appellant would have been eligible for parole at any time thereafter, in the discretion of the board of parole. However, on June 29, 1967, the court held a hearing on a motion for reduction of sentence, at the conclusion of which it amended the judgment by providing that the board of parole should not consider parole until appellant “has served at least 5 years of his sentence.”

Under AS 33.15.230(a) (1) the sentencing judge may have placed such a limitation on appellant’s eligibility for parole had he done so at the time judgment was entered.¹⁷ He was not permitted to do so after that time. The effect of the amendment to the judgment was to increase the severity of appellant’s sentence. This may not be done under Criminal Rule 35(a) ¹⁸ because the rule permits only the reduction, and not an increase of sentence. Furthermore, when judgment was entered on May 11, 1967, and appellant then started service of his sentence, he was in jeopardy in the constitutional sense. Thereafter, “the prohibition of the Fifth Amendment against double jeopardy prevented his being recalled for vacation of the legal sentence and the administration of a more severe one.” ¹⁹ The amended sentence .was therefore illegal. Upon remand the provision that the board of parole should not consider parole until appellant had served at least 5 years of his sentence should be stricken from the judgment.

In a pre-sentence report filed by the Youth & Adult Authority’s probation officer it was stated ■ that two unnamed persons had indicated that in their opinion appellant “was going through the motions of attempting to treat himself for an alleged alcoholic program, in an effort to impress the court.” In addition, with respect to the checks which were the subject of the indictments in this case, the report stated: “In addition to these checks, total-ling some $3,000, the defendant wrote an unknown number of bad checks in Washington, Oregon and Idaho during his unlawful flight to avoid prosecution here.” Appellant contends that these statements were material misrepresentations of fact and that the judge erred in relying upon them in deciding what sentence to impose. We pointed out in Thompson v. State²⁰ that it is the aim of a sentencing court to acquire a thorough acquaintance with the character and history of the man before it, and that it was essential to the selection of an appropriate sentence for the judge to have possession of the fullest information possible concerning a defendant’s life and characteristics. Of necessity much of the information gathered by the probation officer and placed in the pre-sentence report will be hearsay and not verified by evidence of the facts stated. But we believe that such information will accordingly be discounted by the judge and we do not presume that he will be prejudiced by such information. As we stated in Egelak v. State:²¹ “Again, we reiterate our belief that the trial judge is equipped to recognize and discount any attempts at unfairness or overreaching in a presentence report.” We find no error here.

In seven of the eight counts of the indictment appellant was charged with violation of AS 11.20.230 which provides as follows:

Drawing of check with insufficient funds.

A person who, with intent to defraud, makes, draws, utters or delivers to another person a check or draft on a bank or other depository for the payment of money, knowing at the time of the drawing or delivery that he does not have sufficient funds or credit with the bank or depository to meet the check or draft in full upon its presentation is guilty of larceny.

Appellant contends that since the instruments attached to counts five, six, and eight of the indictment do not designate a payee, they were not “checks” within the meaning of the foregoing statute, and therefore these counts of the indictment are insufficient in that they fail to state a crime.

AS 45.05.252 (§ 3-104 of the Uniform Commercial Code) states:

Form of negotiable instruments: “draft”; “check”; “certificate of de-

posit”; “note.” (a) A writing to be a negotiable instrument within §§ 246-402 of this chapter, must

(1) he signed by the maker or drawer;

(2) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation, or power given by the maker or drawer except as authorized by §§ 246-402 of this chapter;

(3) be payable on demand or at a definite time; and

(4) be payable to order or to bearer,

(b) A writing which complies with the requirements of this section is

(2) a “check” if it is a draft drawn on a bank and payable on demand * * *.

AS 45.05.266 (§ 3-111 of the Uniform Commercial Code) provides:

Payable to bearer. An instrument is payable to bearer if by its terms it is payable to

(1) bearer or the order of bearer;

(2) a specified person or bearer; or

(3) “cash” or the order of “cash,” or any other indication which does not purport to designate a specific payee.

The official comment to the Uniform Commercial Code-states that subdivision (3) of the foregoing section of the code was

reworded to remove any possible implication that “Pay to the order of -” makes the instrument payable to bearer. It is an incomplete order instrument, and falls within Section 3 — 115.²²

The appropriate sections of the Uniform Commercial Code must be looked to in order to determine the meaning of the word “check” as used in the larceny statute, AS 11.20.230. Although the instruments in question were drafts drawn on a bank and payable on demand, they named no payees and under AS 45.05.266 were not payable to bearer. Not being payable either to order or to bearer, they do not comply with the requirements of AS 45.05.252(4), and therefore under that section of the code do not constitute checks. Appellant contends that since the instruments in question were not checks within the meaning of AS 45.05.252, they were not the subject of the crime of larceny by check under AS 11.20.230, and therefore the three counts of the indictment with respect to such instruments failed to state a crime.

Another provision of the Uniform Commercial Code must be considered. AS 45.-05.402 (Uniform Commercial Code § 3-805) states:

Sections 246-402 of this chapter apply to an instrument whose terms do not preclude transfer and which is otherwise negotiable within §§ 246-402 of this chapter but which is not payable to order or to bearer, except that there can be no holder in due course of such an instrument.

The official comment explains this section as follows:

This section covers the “non-negotiable instrument.” As it has been used by most courts, this term has been a technical one of art. It does not refer to a writing, such as a note containing an express condition, which is not negotiable and is entirely outside of the scope of this Article and to be treated as a simple contract. It refers to a particular type of instrument which meets all requirements as to form of a negotiable instrument except that it is not payable to order or to bearer. The typical example is the check reading merely “Pay John Doe.”

Such a check is not a negotiable instrument under this Article. At the same time it is still a check, a mercantile specialty which differs in many respects from a simple contract. Commercial and banking practice treats it as a check, and a long line of decisions before and after the original Act have made it clear that it is subject to the law merchant as distinguished from ordinary contract law * *

In short, the “non-negotiable instrument” is treated as a negotiable instrument, so far as its form permits. Since it lacks words of negotiability there can be no holder in due course of such an instrument, and any provision of any section of this Article peculiar to a holder in due course cannot apply to it. With this exception, such instruments are covered in all sections of this Article.²³

The instruments involved here, not being payable to order or to bearer, were non-negotiable in the sense that no one could be a holder in due course of such instruments. But they are treated as negotiable instruments in other respects and are referred to as checks. Being checks within the meaning of the Uniform Commercial Code, such instruments were the subject of the crime of larceny by check under AS 11.20.230, and therefore the three counts of the indictment with respect to these instruments did not fail to state the crime.

The case is remanded to the superior court with instructions to vacate the sentences imposed and to resentence appellant.

1 . A8 11.20.230 provides:

Drawing of check with insufficient funds. A person who, with intent to defraud, makes, draws, utters or delivers to another person a check or draft on a bank or other depository for the payment of money, knowing at the time of the drawing or delivery that he does not have sufficient funds or credit with the bank or depository to meet the check or draft in full upon its presentation is guilty of larceny.

2 . AS 11.20.210 provides in part:

(1) A person is guilty of a misdemeanor * * * if he * ⅜ * makes, draws, utters, or delivers a check, draft or order drawn upon a bank or other depository, for payment of money, knowing at the time of the making, drawing, uttering or delivering that the maker or drawer does not have sufficient funds or credit with the bank or other depository for its payment in full, upon presentation, and without informing the payee or the person to whom it is delivered, at the time of the making, uttering, drawing or delivery of it, that the person making, drawing, uttering or delivering the check, draft, or order does not have sufficient funds or credit with the bank or other depository for its payment in full, upon presentation;

3 . 439 P.2d 432 (Alaska 1908).

4 . The eighth amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Alaska constitution, art. I, § 12 provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Penal administration shall be based on the principle of reformation and upon the need for protecting the public.

5 . Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Barber v. Gladden, 210 Or. 46, 309 P.2d 192, 196 (1957), cert. denied, 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681 (1959); State v. Ross, 55 Or. 450, 104 P. 596, 604-605 (1909), modified, 55 Or. 450, 106 P. 1022 (1910), dismissed, 227 U.S. 150, 33 S.Ct. 220, 57 L.Ed. 458 (1913); State v. Kimbrough, 212 S.C. 348, 46 S.E.2d 273, 277 (1948).

6 . Overstreet v. United States, 367 F.2d 83 (5th Cir. 1966); Lindsey v. United States, 332 F.2d 688-693 (9th Cir. 1964); Martin v. United States, 317 F.2d 753, 755 (9th Cir. 1963); Akers v. United States, 280 F.2d 198, 199 (6th Cir.), cert. denied, 364 U.S. 924, 81 S.Ct. 289, 5 L.Ed. 2d 262 (1960); Smith v. United States, 273 F.2d 462, 467-468 (10th Cir. 1959), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960); State v. McNally, 152 Conn. 598, 211 A.2d 162, 164, cert. denied, McNally v. Connecticut, 382 U.S. 948, 86 S.Ct. 410, 15 L.Ed.2d 356 (1965); Chavigny v. State, 112 So.2d 910, 915 (Fla.App.1959), cert. denied, 362 U.S. 922, 80 S.Ct. 676, 4 L.Ed.2d 742 (1960) ; Curtis v. State, 102 Ga.App. 790, 118 S.E. 2d 264 (1960); King v. State, 91 Idaho 97, 416 P.2d 44, 45 (1966); People v. Calcaterra, 33 U1.2d 541, 213 N.E.2d 270, 274 (1965), dismissed, 385 U.S. 7, 87 S.Ct. 65, 17 L.Ed.2d 8 (1966); Monson v. Commonwealth, 294 S.W.2d 78, 80 (Ky. 1956); Bond v. State, 249 Miss. 352, 162 So.2d 510, 512 (1964); State v. Wishom, 416 S.W.2d 921, 927 (Mo.1967); State v. Thompson, 414 S.W.2d 261, 268 (Mo.1967).

7 .State v. McNally, 152 Conn. 598, 211 A. 2d 162, 164, cert. denied, McNally v. Connecticut, 382 U.S. 948, 86 S.Ct. 410, 15 L.Ed.2d 356 (1965).

8 . Chavigny v. State, 112 So.2d 910, 915 (Fla.App.1959), cert. denied, 362 U.S. 922, 80 S.Ct. 676, 4 B.Ed.2d 742 (1960).

9 . Workman v. Commonwealth, 429 S.W.2d 374 (Ky.Ct.App.1968).

10 . Barber v. Gladden, 210 Or. 46, 309 P. 2d 192, 196 (1957), cert. denied, 359 U.S. 948, 79 S.Ct. 732, 3 L.Ed.2d 681 (1959).

11 . Green v. State, 390 P.2d 433, 435 (Alaska 1964). See also Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793, 798 (1910); Hedrick v. United States, 357 F.2d 121, 124 (10th Cir. 1966).

12 . Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793, 798 (1910).

13 . Appellant was about 46 years of age when he was sentenced. If he served the 36 years imposed ho would be 82 when released.

14 . The probation officer’s pre-sentence report to the court showed that appellant had prior convictions for the offenses of grand larceny, interstate transportation of a stolen vehicle, and concealing and removing mortgaged property.

15 . 390 P.2d 433, 435 (Alaska 1964).

16 . AS 33.15.180 provides:

Persons eligible for parole. A state prisoner, other than a juvenile delinquent, wherever confined and serving a definite term of over 180 days, whose record shows that he has observed the rules of the institution in which he is confined may, in the discretion of the board, be released on parole.

17 .AS 33.15.230(a) (1) provides:

Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced to imprisonment for a term exceeding one year, may

(1) designate in the sentence of imprisonment imj)osed a minimum term at the expiration of which the prisoner is eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court ⅜ * *. [Emphasis added.!

18 .Crim.R. 35(a) provides:

Correction or Reduction of Sentence. The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the supreme court of the stage or of the United States denying an application for relief.

19 . United States v. Adams, 362 F.2d 210, 211 (6th Cir. 1966). See also United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 B.Ed. 354 (1931).

20 . 426 P.2d 995, 1000 (Alaska 1967).

21 . 438 P.2d 712, 718 (Alaska 1968).

22 . AS 45.05.274 (§ 3-115 of the UCC) provides:

(a) If a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in a necessary respect, it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed.

23 . 1 Anderson, Uniform Commercial Code, at 761-62 (1961).