dissent">COATS, Judge,

dissenting.

In Bear v. State, 439 P.2d 432, 439 (Alaska 1968), Justice Rabinowitz concluded that art. IV, § 2 of the Alaska Constitution, which vests the supreme court with “final appellate jurisdiction,” gave the supreme court the inherent power to review sentences. The Alaska Supreme Court ultimately adopted Justice Rabinowitz’s view in Wharton v. State, 590 P.2d 427, 429 (Alaska 1979). In reaching this conclusion, the supreme court relied in part on former Appellate Rule 21, which is now the current Appellate Rule 215. In Wharton, the supreme court said:

In promulgating Rule 21, this court accepted Justice Rabinowitz’s position in Bearthat review of criminal sentences is inherent in our power as the court of “final appellate jurisdiction,” Alaska Constitution, art. IV, § 2.

Id. (footnote omitted). The court also relied on art. 1, § 12 of the Alaska Constitution, which provides that: “Penal administration shall be based on the principle of reformation and upon the need for protecting the public.” Id. at 429 n. 5. The Whartoncourt stated: “Sentence review insures that sentencing courts pay due regard to the goals of reformation and protection of the public.” Id.I therefore read Whartonas a decision that the supreme court has the inherent power to review all sentences under the Alaska Constitution, including sentences of less than forty-five days.

Appellate Rule 215 provides in pertinent part:

(a) Notification of Right to Appeal Sentence. At the time of imposition of any sentence of imprisonment of 45 days or more, the judge shall inform the defendant as follows:

(1) That the sentence may be appealed on the ground that it is excessive.

The language of Appellate Rule 215 simply requires a judge to inform a defendant of his right to appeal his sentence on the ground that it is excessive if the judge has sentenced the defendant to a sentence of imprisonment of forty-five days or more; it does not restrict the supreme court’s jurisdiction in sentence appeals to cases which involve sentences of imprisonment of forty-five days or more. I see no reason to conclude from this rule that the supreme court intended to limit sentence appeals to *223sentences of imprisonment in excess of forty-five days.

If the supreme court intended only to exercise sentence appeal jurisdiction in cases which involved sentences of forty-five days or more, the court could have said that directly. In addition, the original logic of Justice Rabinowitz’s position in Bearwas that the supreme court should be able to review any decision of the trial court for an abuse of discretion, and that sentencing should not be the only area where the trial court was exempt from review. It also makes sense to me that the supreme court would require a trial judge to inform a defendant of his right to a sentence appeal only in more serious cases. The supreme court did not want to require a trial judge to inform a defendant of his right to a sentence appeal in every case. Many cases involve only fines or small terms of imprisonment which in all but a few cases would be inappropriate for appellate review. It therefore makes sense for the supreme court to require a trial judge to inform a defendant of his right to appeal his sentence only in cases that involve a sentence of forty-five days or more. However, this is different from the supreme court determining that it did not have jurisdiction of cases involving imprisonment of under forty-five days.

Whether this court has jurisdiction to decide the sentence appeal in this case is more difficult. Unlike the supreme court, the court of appeals is not a constitutional court, but was created by the legislature. Therefore, the legislature has the authority to determine the jurisdiction of this court. What jurisdiction the legislature intended to give this court in sentence appeals is a difficult issue. Alaska Statute 22.07.-020(c)(2) gives this court jurisdiction to review “the final decision of the district court on a sentence imposed by it.” However, there is an argument that the legislature intended to set the sentence appeal jurisdiction of this court in AS 12.55.120, which provides in part that:

(a) A sentence of imprisonment lawfully imposed by the superior court for a term or for aggregate terms of one year or more may be appealed to the court of appeals by the defendant on the ground that the sentence is excessive.

[[Image here]]

(d) A sentence of imprisonment lawfully imposed by the district court for a term or for aggregate terms exceeding 90 days may be appealed to the superior court by the defendant on the ground that the sentence is excessive.

However, AS 12.55.120 is a grant of jurisdiction; it does not directly limit the jurisdiction which the legislature gave this court when it enacted AS 22.07.020.

I am reluctant to conclude that this court does not have jurisdiction over relatively short sentences, but that the supreme court does. I do not believe that the legislature would intend that result, and I think it is unlikely that the supreme court would reach that result on the basis of the current statutes. It seems unnecessary to hold that a defendant who wishes to appeal a sentence of forty-five days or less must appeal to the supreme court, whereas this court would continue to have jurisdiction over more severe sentences. I therefore conclude that this court, like the supreme court, has jurisdiction to hear any sentence appeal. As a practical matter, whether this court has jurisdiction or not, it seems unlikely that a defendant who has a sentence of less than forty-five days will prevail in a sentence appeal. I am unaware of this court or the supreme court finding that a sentence of forty-five days or less was excessive. However, the possibility that such a defendant could show that the sentence was clearly mistaken does exist. The majority’s position might also restrict this court’s jurisdiction to review sentences which involve fines, community service, probation conditions, or the form of the sentence — such as whether the defendant qualifies for a suspended imposition of sentence.

Turning to Herbert Johnson’s case, it appears to me that this court has jurisdiction to hear his sentence appeal. Johnson's burden, therefore, is to show that the trial *224court’s sentence was clearly mistaken, not to “make a convincing showing that our adherence to the language of Appellate Rule 215(a) will work either surprise or injustice in his case.” I would reach the merits of Johnson’s case and apply the clearly mistaken standard. I dissent from the court’s opinion, dismissing the appeal without reaching the merits.

Citation profile

Relationships

How this case has been treated — in progress