Judge ordered to re-examine heroin sentence

PALMER — A state appeals court has ruled a man’s 15-year sentence for selling .12 grams of heroin was excessive.

Richard Pocock, 43, was on his third felony drug offense when he was charged with selling heroin in 2008. The Legislature had set the minimum sentence for a third felony at 15 years, but judges can dip below that threshold, going down as far as 7.5 years if there are mitigating circumstances. Pocock argued the miniscule amount of drugs he was selling qualifies as a mitigating factor.

Superior Court Judge Eric Smith — listed in court records as the judge who handled the sentencing — disagreed, saying the three sales of .03 grams, .03 grams and .06 grams respectively, were typical for single-use heroin sales.

But the appeals court sided with Pocock.

“These quantities were literally microscopic. (By comparison, a typical 4-inch-high jar of a powdery spice such as ground mustard normally contains 45 to 50 grams),” Judge David Mannheimer wrote in the opinion released Friday.

Mannheimer wrote that Alaska doesn’t draw clear lines in the law for what judges should consider to be a small or large amount of drugs. Alaska law on heroin sales was based on federal law, and the feds do make such distinctions.

There are actually 14 tiers of sentencing in the federal system. The highest applies to people convicted of selling 30 kilograms or more.

“The lowest and least severe sentencing range for sales of heroin under federal law applies to sales or deliveries of less than 5 grams of heroin,” Mannheimer wrote. “Even when Pocock’s three sales are considered in combination, they total only .12 grams — 40 times less than the 5-gram ceiling of the lowest federal sentencing range.”

Mannheimer dismissed Smith’s contention that the amounts weren’t small because they were typical for street sales. Judges aren’t supposed to consider what’s typical for their docket or the amount typically prosecuted, the appeals court ruled.

The rule, Mannheimer wrote, is that judges are to consider an amount small if it falls on the lower end of the spectrum of drug offenses that fall under that particular charge.

And since the charge refers to “any amount” of heroin, the charge could be brought against someone who sold dozens of pounds of the stuff. Thus, the .12 grams is clearly on the lower end of that spectrum, Mannheimer wrote.

The appeals court sent the case back to Smith for re-sentencing. As of Monday morning, a new sentencing hearing was not scheduled.

Pocock has a checkered history, with drug convictions stretching as far back as 1997 as well as assault and burglary cases in Palmer and Anchorage. In the current case, Mannheimer wrote, Pocock sold the heroin for $50 a pop to a friend.

Contact reporter Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.