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Whitesides v. State4/2/2004
In this sentence appeal, we are asked to construe AS 12.55.155(c)(1), one of the statutory aggravating factors that authorize a sentencing judge to exceed the presumptive term of imprisonment in cases governed by presumptive sentencing. Subsection (c)(1) states that a defendant's presumptive term can be aggravated if "a person, other than an accomplice, sustained physical injury as a direct result of the defendant's conduct". The question presented in this appeal is whether aggravator (c)(1) applies when a defendant illegally sells drugs and one of the defendant's customers dies from an overdose.
For the reasons explained here, we conclude that aggravator (c)(1) normally will not apply to such cases. However, we also conclude that another aggravator - (c)(10), which applies when the defendant's conduct is among the most serious within the definition of the offense - authorizes a sentencing judge to take the drug purchaser's death into consideration when sentencing the defendant.
Underlying Facts
On July 11, 2000, the Ketchikan police received a report of a drug overdose. When they arrived at the scene, they discovered that the victim, Robert Glenn, was dead. The State Medical Examiner tentatively concluded that Glenn's death was due to a heroin overdose.
Ten days later, the Ketchikan police received information that Shaun M. Whitesides was selling cocaine and was also using methamphetamine. Based on this information, the police obtained a search warrant for Whitesides's apartment.
During the execution of that warrant, the police found a small amount (.6 grams) of methamphetamine. While they were there, the police interrogated Whitesides about the report that she was selling drugs. Whitesides initially denied selling any drugs. But when the police informed Whitesides that Glenn was dead, and that he appeared to have died from a drug overdose, Whitesides began to cry. She then admitted that Glenn had come to her, looking for heroin, and that she had sold him a gram of heroin for $150.
Based on the foregoing, Whitesides was indicted for second-degree controlled substance misconduct (sale of heroin) and fourth-degree controlled substance misconduct (possession of methamphetamine). She pleaded guilty to the methamphetamine possession charge, but she chose to go to trial on the sale of heroin charge. The jury found her guilty.
Second-degree controlled substance misconduct is a class A felony, and Whitesides was a first felony offender for presumptive sentencing purposes. The superior court and the parties agreed that Whitesides faced a 5-year presumptive term of imprisonment under AS 12.55.125(c)(1) for the offense of selling heroin.
The sentencing judge, Superior Court Judge Trevor N. Stephens, found that the defense had proved one mitigating factor: AS 12.55.155(d)(14) - that Whitesides's offense involved only a small amount of heroin. But Judge Stephens also found one aggravating factor: AS 12.55.155(c)(1) - that a person, other than an accomplice, sustained physical injury as a direct result of Whitesides's conduct.
Having found the "small quantity" mitigator and the "physical injury" aggravator, Judge Stephens concluded that "the aggravator far outweigh the mitigator" in Whitesides's case, in large measure because the judge concluded that Whitesides had poor prospects for rehabilitation.
(Even though Whitesides was technically a first felony offender for presumptive sentencing purposes, she had a prior conviction for a drug felony (sale of cocaine) - a conviction that was set aside after she successfully completed her suspended-imposition-of-sentence probation.)
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