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Pitka v. State3/16/2001
d AS 12.55.125(k). We need not decide this issue because the record supports the superior court's finding of aggravator (c)(10).
As explained above, Judge Greene actually found two aggravating factors: (c)(10) and (c)(21). On appeal, Pitka does not challenge the finding of aggravator (c)(21), but Pitka argues that Judge Greene erred in finding aggravator (c)(10).
When Judge Greene found that the State had proved aggravator (c)(10), she relied primarily on two factors: the amount of cocaine found in Pitka's possession, and Pitka's statement in the pre-sentence report about his personal drug use.
As noted above, Pitka had 21.1 grams of cocaine in his pocket. According to the testimony presented at grand jury, this amount of cocaine had a "street value" of approximately $2000. Pitka told the pre-sentence investigator that he used cocaine "mostly on weekends, when he might consume up to a gram." The pre-sentence investigator noted that, given Pitka's self-declared rate of consumption, the amount in his vest pocket represented "a 21-week supply". Judge Greene concluded that Pitka would not carry such a large amount unless he intended to sell it.
When a defendant challenges a sentencing judge's findings concerning the existence of aggravating and mitigating factors, we are to uphold the judge's findings unless they are shown to be clearly erroneous. Having examined the record, we conclude that it supports Judge Greene's finding of aggravator (c)(10).
(As explained above, Judge Greene found that the State had proved two aggravators: (c)(10) and (c)(21). Because we conclude that the record supports Judge Greene's finding of aggravator (c)(10), we need not resolve whether the other aggravator, (c)(21), would independently support Pitka's sentence of 2 years to serve.)
Pitka's claim that his sentence is excessive
Pitka contends that, even if his 2-year sentence was lawfully imposed, the sentence is excessive. Because Pitka's term of imprisonment does not exceed 2 years, this court has no jurisdiction to decide Pitka's claim. Pursuant to Appellate Rule 215(k), we refer Pitka's excessive sentence claim to the supreme court.
Conclusion
Pitka's excessive sentence claim is referred to the supreme court. In all other respects, the judgment of the superior court is AFFIRMED.
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