Elliott v. State

OPINION

RABINOWITZ, Justice.

Winthrop Elliott brings this sentence appeal from a sentence of three years imprisonment which was imposed by the superior court upon his plea of guilty to the crime of selling cocaine in violation of AS 17.1Q.010.¹ We affirm.

The events leading to Elliott’s arrest are detailed in Wharton v. State, Op.No.1797 (Alaska 1979) 590 P.2d 427, and will only briefly be summarized here. In October 1976, at Glennallen, two Alaska State Trooper investigators met Elliott, who stated that he could sell them cocaine for $150 per gram. The following evening the investigators met Elliott at Alyeska’s Glennallen pipeline camp. Eventually Elliott produced two packets of cocaine which the troopers paid for with three marked one hundred dollar bills. Two backup officers then entered the room and placed Elliott and Wharton (an involved party) under arrest. Subsequently, Elliott voluntarily produced eleven additional packets of cocaine, weighing a total of approximately ten grams.²

Elliott was 20 years old at the time he sold the cocaine to the undercover officers. Until this time, Elliott’s only previous offense was that of shoplifting, committed in December 1975. As a result of that charge, Elliott was placed on probation and apparently had successfully completed his term of probation. The presentence report indicates that Elliott has worked steadily since January 1975, and that he has been supporting himself. Elliott graduated from high school in June 1974, and has completed one semester of college. The record also discloses that Elliott’s family has taken a strong interest in his case.

As to the circumstances of the sale of cocaine to the troopers, the presentence report indicates that while Elliott was in Anchorage he purchased ½ ounce of cocaine for $1,300, that he divided this amount into “smaller portions,” and that he intended to sell half of the total amount and keep half for his own use. Elliott also told the author of the presentence report that the sale of cocaine to the undercover officers was his first attempt at selling this drug.³ The author of the presentence report recommended that Elliott be denied probation.⁴ His recommendation was based in part on the following evaluation:

It is likely that much of . [Elliott’s] present situation can be linked, in some way, to his years of experimenting with a host of drugs. It appears as if his continual use was not done through ignorance. . . . It is evident that Mr. Elliott was well aware of the laws and cognizant of the penalties prior to his attempts at selling this drug.

In Davis v. State, 577 P.2d 690, 693 (Alaska 1978), this court reiterated four classifications of drug offenders, in descending order of seriousness, which we had previously recognized:

1.Smuggling or sale of large quantities of narcotics or possession of large quantities for sale.

2. Smuggling or sale of small quantities of narcotics, or possession of small quantities for sale.

3. Possession of narcotics without intent to sell.

4. Marijuana offenses.

Elliott fits within category 2, for here the record shows that he both sold small quantities of cocaine and possessed small quantities of cocaine for sale.

On the basis of the foregoing and our review of the entire record, we cannot conclude, under the clearly mistaken standard for review of sentences, that the superior court’s sentence was excessive.⁵

Affirmed.

1 . AS 17.10.010 provides:

Acts Prohibited. It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, give, barter, supply or distribute in any manner, or compound any narcotic drug except as authorized in this chapter.

2 . These packets of cocaine were beneath Elliott’s bed wrapped in a plastic bag. Additionally, Elliott had one other gram of cocaine in his possession at the time of his arrest.

3 . The state’s attorney acknowledged that Elliott had “recently acquired” a reputation as a cocaine seller.

4 . Elliott’s attorney asked the superior court to suspend imposition of sentence and the state’s attorney agreed, with certain conditions, namely: that he serve a period of time, more than a matter of months but not amounting to years; that following incarceration he be placed on probation; that he be required to continue his education; and that he pay a substantial fine. The superior court disagreed.

5 . Although anyone convicted of unlawful sale of a drug may be subjected to a jail sentence, we do not agree with the sentencing court’s generalized statement that “it’s necessary that jail time be imposed upon people who sell cocaine.” Such a statement is overbroad and fails to give adequate consideration to the specific characteristics of individual offenders and offenses.