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Twogood v. State (11/21/2008) ap-2194

Twogood v. State (11/21/2008) ap-2194

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOSHUA S. TWOGOOD, )
) Court of Appeals No. A-9881
Appellant, ) Trial Court No. 4FA-99-1370 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2194 November 21, 2008
)
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,
          Judge.

          Appearances:  Ward Merdes, Merdes  &  Merdes,
          Fairbanks,  for  the Appellant.   Marilyn  J.
          Kamm,  Assistant Attorney General, and  Talis
          J. Colberg, Attorney General, Juneau, for the
          Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Joshua S. Twogood appeals the superior courts denial of
his  request for a clarification of his sentence.  The underlying
issue  in  this appeal involves the question of how to  calculate
the  date  on  which a defendant becomes eligible  to  apply  for
discretionary  parole  when (1) the defendant  is  simultaneously
sentenced for two or more crimes, and (2) the defendants terms of
imprisonment are either wholly or partially consecutive.
          The  precise  issue  is whether the  defendants  parole
eligibility  date varies depending on which term of  imprisonment
is designated the initial or primary sentence  i.e., the sentence
to  be served first, and which serves as the base for calculating
the remaining wholly or partially consecutive sentences.
          As  we  explain  in  this opinion, a defendants  parole
eligibility  date does indeed hinge on which term of imprisonment
is considered the initial or primary sentence.
          Alaskas  current  law  on this  subject   specifically,
AS  33.16.090(b)(7)  contains explicit rules for identifying  the
primary  sentence when a defendant is sentenced for two  or  more
crimes.  But this law was enacted in 2005,1 and Twogoods offenses
pre-date this law.
          Alaskas  pre-2005  law  did  not  contain  a  rule  for
identifying  the  initial or primary sentence in situations  like
Twogoods.   And  (as we explain below), when the  superior  court
sentenced Twogood, the court refused to identify which of his two
terms  of  imprisonment was the primary one.  This  leads  us  to
conclude  that there is a flaw in Twogoods sentence  a flaw  that
makes  it  impossible to ascertain the date  of  Twogoods  parole
eligibility.    Thus,  Twogood  is  entitled  to   the   sentence
clarification he seeks.

Underlying facts

          In   2000,  Twogood  was  convicted  of   two
felonies:   attempted  murder and  first-degree  sexual
assault.   For  the  attempted murder,  Superior  Court
Judge  Mary  E. Greene sentenced Twogood  to  20  years
imprisonment  with  5  years  suspended  (15  years  to
serve).  For the sexual assault, Judge Greene sentenced
Twogood to 14 years imprisonment with 4 years suspended
(10 years to serve).
          Judge  Greene declared that the time to serve
components  of these two sentences would  be  partially
consecutive,  so that Twogood would serve  a  total  of
20   years  in  prison  (with  an  additional  9  years
suspended).   However, even though both the  prosecutor
and  the defense attorney asked Judge Greene to be more
specific  about how Twogoods sentences were  structured
i.e.,  whether Twogood was to serve 10 years for sexual
assault   followed  by  a  consecutive  10  years   for
attempted murder or, conversely, 15 years for attempted
murder  followed  by a consecutive 5 years  for  sexual
assault   Judge Greene refused to specify  the  precise
way  in  which Twogoods two sentences added up  to  the
composite  20  years to serve.  Judge Greene  concluded
that  this kind of specificity was not required because
it  made  no difference to Twogoods total penalty.   In
particular,  Judge  Greene  stated  that  the   precise
relationship  of  the  two  sentences  did  not  affect
Twogoods parole eligibility.
          After  Twogood began serving these sentences,
the  Department  of Corrections notified  him  that  he
would  be  required to serve 11 years of his  composite
20-year  term  before he became eligible to  apply  for
          discretionary parole  and that his parole eligibility
date was therefore June 14, 2010.
          (Twogood  was  arrested  in  connection  with
these  offenses  on June 13, 1999, and he  remained  in
custody  through his conviction and sentencing.   Thus,
he  effectively began serving his sentence on the  date
of his arrest  June 13, 1999.  See AS 12.55.025(c).)
          Twogood questioned whether he was required to
serve so much time before he was eligible to apply  for
discretionary parole, but in October 2003 the Board  of
Parole sent Twogood a letter confirming this June  2010
parole eligibility date.
          Approximately  two  and a half  years  later,
Twogood  hired an attorney, and this attorney  filed  a
motion  in  the superior court asking for clarification
of   Twogoods  sentence.   In  this  motion,   Twogoods
attorney argued that the order or structure of Twogoods
two  sentences did, in fact, affect the calculation  of
Twogoods  parole  eligibility  date   and,  thus,   the
superior court was required to clarify exactly how  the
two sentences were structured.
          In  response, the State argued that there was
no ambiguity in Twogoods sentence  and that [m]oreover,
the  decision  about  how  to calculate  [a  prisoners]
eligibility  for discretionary parole is ...  one  that
the  legislature has entrusted to the [Alaska] [P]arole
[B]oard and/or [the] Department of Corrections.
          Because  Judge  Greene had retired,  Twogoods
case  was  assigned to Superior Court  Judge  Randy  M.
Olsen.  Judge Olsen agreed with the State that Twogoods
sentence  needed  no  clarification.   Here   are   the
concluding paragraphs of his decision:
     
     In  essence, Mr. Twogood asks this Court
to  do  the  Parole Boards job.   Courts  can
clarify sentences if there is ambiguity,  but
the  Judgment and Order of Commitment  signed
by   Judge   Greene  is  quite   clear.    It
unequivocally  states that  Mr.  Twogood  was
sentenced to a composite sentence of 29 years
with   9   [years]  suspended  ...   .    ...
[Twogood]  must serve the statutory mandatory
minimum periods of incarceration before he is
eligible  for discretionary parole.   Because
the Alaska Legislature has entrusted the task
of  calculating parole eligibility  dates  to
the  Alaska Parole Board, this Court will not
engage in that activity.

     The  sentence  imposed by  Judge  Greene
needs   no   clarification.   The  Defendants
eligibility  for  discretionary   parole   is
controlled   by  statutes.   The   Defendants
Motion to Clarify is DENIED.

          Twogood  now  appeals the  superior
courts decision.  In his brief to this Court,
Twogood  renews  his claim that  there  is  a
crucial  ambiguity in his sentence, and  that
this  ambiguity needs to be clarified because
the  calculation  of  his parole  eligibility
date  hinges  on  the structure  of  his  two
sentences  (i.e., which term of  imprisonment
is to be served first, and which is partially
consecutive).

Our request for the State to clarify its interpretation
of  the pertinent parole eligibility statutes, and
the States response

     After   the  briefing  in  this  appeal   was
complete,  we concluded that Twogoods request  for
sentence clarification was actually analogous to a
request  for  relief  under Alaska  Criminal  Rule
35(a)  the rule that authorizes a sentencing court
to correct an illegal sentence at any time.
          Twogoods sentence is not illegal in the sense
that  it exceeds the scope of sentences authorized  for
his  crimes.   But  when a court fails  to  specify  an
essential  component  of a sentence,  the  sentence  is
legally  incomplete  and it can  be  corrected  on  the
motion of either party.  See Christensen v. State,  844
P.2d  557,  558-59 (Alaska App. 1993), and Figueroa  v.
State,  689  P.2d 512, 514 (Alaska App.  1984).   Here,
Twogood  argues that Judge Greene failed to specify  an
essential   component  of  his  partially   consecutive
sentences:  to wit, which term of imprisonment was  the
initial or primary one, and which was secondary  (i.e.,
the   one  that  is  partially  concurrent  with,   and
partially  consecutive  to,  the  initial  or   primary
sentence).
          To  determine whether Twogoods sentences  are
indeed  missing  an  essential component,  we  have  to
decide  whether  Twogood is correct in  his  underlying
assertion about parole eligibility  i.e., his assertion
that the structure of his terms of imprisonment affects
the calculation of his parole eligibility date.
          If   Twogood  is  correct  that  his   parole
eligibility  date  hinges on  which  of  his  terms  of
imprisonment is to be served in full and which  one  is
partially concurrent, then Twogoods sentence is legally
incomplete.  As we have explained, Judge Greene refused
to clarify this matter  and, if Twogood is correct, the
extent  of  his  criminal liability  remains  unsettled
without  this  clarification.  On the  other  hand,  if
Twogoods parole eligibility date is the same regardless
of how the superior court might have structured his two
sentences, then Twogoods sentence would be complete for
purposes of Criminal Rule 35(a).
          Although  the  parties briefs addressed  this
issue  in  general  terms, neither  brief  contained  a
detailed analysis of the pertinent parole statutes  and
an   explanation  of  why  the  structure  of  Twogoods
sentences  either did or did not make a  difference  to
his   parole  eligibility  date.   We  therefore  began
exploring this legal question on our own.  Our research
indicated  that  the  structure of  Twogoods  sentences
might  indeed  make a difference in the calculation  of
his parole eligibility date.
          The  beginning point of our analysis  is  the
fact  that,  under  Alaska  law,  a  defendant  who  is
sentenced  for  two  or more crimes  and  who  receives
wholly  or  partially consecutive  sentences  does  not
become eligible to apply for discretionary parole until
the  defendant has served a specified portion  of  each
sentence.   Under both Alaskas current parole  law  and
the earlier (pre-2005) version that applies to Twogood,
the  calculation of these requisite portions hinges  on
several   factors.    One  critical   factor   is   the
identification  of one of the defendants  sentences  as
the  initial or primary sentence  because there is  one
method  for  calculating the requisite portion  of  the
defendants  initial  or primary sentence,  and  another
method  for calculating the requisite portions  of  the
defendants other sentences.
          (In  general, defendants who receive  two  or
more  wholly or partially consecutive felony  sentences
do  not  become  eligible  to apply  for  discretionary
parole until they have served (a) the requisite portion
of  their  initial  or  primary term  of  imprisonment,
calculated  as if that sentence had been the  only  one
imposed,  plus  (b) additional (but generally  smaller)
portions   of  their  other  consecutive  or  partially
consecutive terms of imprisonment.  These portions vary
according  to  the  class of the  felony,  whether  the
defendant  was  subject  to a mandatory  minimum  term,
whether the defendants sentence was presumptive or not,
and  whether the sentencing judge imposed a restriction
on parole eligibility under AS 12.55.115.)
          If  Twogood had been sentenced under  Alaskas
current  law, Twogoods eligibility for parole would  be
governed  by  AS  33.16.090(b) as re-written  in  2005.
Subsection (7) of this statute contains the  rules  for
calculating  the parole eligibility of  defendants  who
receive consecutive or partially consecutive sentences.
Under  this subsection, a prisoner whose sentences  are
wholly  or  partially consecutive becomes eligible  for
discretionary parole when the prisoner has  served  the
longest   term   yielded   by   the   following   three
calculations:
     
          (A) the composite total of any mandatory
     minimum   sentence   or   sentences[,]    ...
     including   [mandatory   consecutive    terms
     imposed under] AS 12.55.127;
     
          (B)  any  [minimum]  term  set  [by  the
     sentencing judge] under AS 12.55.115; or
     
     (C)  the amount of time [to qualify  for
parole  eligibility] under [subsections]  (1)
(5)  of  [AS  33.16.090(b)] for the  sentence
imposed  for  the [defendants] primary  crime
[as  that  term is defined in AS  12.55.127],
had that been the only sentence imposed, plus
one-quarter  of the composite  total  of  the
active   term  of  imprisonment  imposed   as
consecutive    or    partially    consecutive
sentences  ...  for all [of  the  defendants]
crimes other than the primary crime.

          Under this current scheme, Twogoods
parole  eligibility  would  be  governed   by
subsection  (C),  which  directs  the  Parole
Board  to  identify  Twogoods  primary  crime
under  the  rules specified in AS  12.55.127.
Twogood  would become eligible to  apply  for
parole  after serving the sentence  for  this
identified primary crime, plus one-quarter of
the   consecutive  portion   of   his   other
sentence.
          (Under   AS   12.55.127(d)(4),    a
defendants  primary crime is  the  crime  for
which   the  superior  court  impose[d]   the
longest active [i.e., non-suspended] term  of
imprisonment.  If the defendant received  the
same  amount of unsuspended imprisonment  for
two  or  more crimes, the defendants  primary
crime is the one designated as primary by the
sentencing court.)
          Because   Twogood   committed   his
crimes in 1999, his parole eligibility is not
governed by the current statutes, but  rather
by  the  pre-2005 version of  the  statutes.2
     But    under   the   pre-2005   versions
of   AS   33.16.090  and  AS  33.16.100,   as
supplemented  by  22  AAC  20.055   075,  the
calculation  of  Twogoods  eligibility   date
again  seems  to hinge on which  of  Twogoods
sentences is his initial or primary sentence.
The  problem  is  that the pre-2005  statutes
apparently   do  not  contain  a   rule   for
identifying  which of Twogoods  sentences  is
the initial or primary one.
          In  order  to  give  the  State  an
opportunity to clarify its position on  these
matters   (in   case  we  had  overlooked   a
clarifying statute or regulation, or  we  had
misinterpreted the ones we found),  we  asked
the  State  to  respond to a series  of  five
          questions about how the Department of
Corrections  would, under the  pre-2005  law,
calculate  the parole eligibility date  of  a
prisoner  who  received partially  or  wholly
consecutive  sentences for  attempted  murder
and first-degree sexual assault.
          For present purposes, our Questions
3  and  4  were the most important ones.   In
these  two questions, we asked the  State  to
explain  the  parole eligibility  calculation
for  the two different ways in which Twogoods
sentence might be structured:

     Question  3:   Suppose that Twogood  had
received  the  following two sentences:   (1)
attempted  murder:  15 years  to  serve;  (2)
sexual  assault:  10 years to serve,  with  5
years  of  this sentence consecutive  to  the
attempted murder sentence and 5 years of this
sentence concurrent with the attempted murder
sentence.   How  long would Twogood  have  to
serve before becoming eligible for parole?

     Question  4:   Suppose that Twogood  had
received  the  following two sentences:   (1)
sexual  assault:   10  years  to  serve;  (2)
attempted murder:  15 years to serve, with 10
years  of  this sentence consecutive  to  the
sexual  assault sentence and 5 years of  this
sentence  concurrent with the sexual  assault
sentence.   How  long would Twogood  have  to
serve before becoming eligible for parole?

          The  States answers to Questions  3
and  4  confirmed our preliminary conclusion:
the structure of Twogoods sentence (i.e., the
order  of his terms of imprisonment) makes  a
significant difference in the calculation  of
his parole eligibility date.
          The States response to Question  3:
In  its  response to Question  3,  the  State
explained  that if Twogoods attempted  murder
sentence is considered to be the initial  one
that  is, if Twogood was ordered to serve  15
years  for  attempted murder, followed  by  a
consecutive  5 years for sexual  assault   he
would  have  to  serve 90  months  in  prison
before   becoming  eligible  to   apply   for
discretionary parole.
          According   to  the   State,   this
calculation  has two steps.   First,  Twogood
would  have  to  serve the  5-year  mandatory
minimum  term  of imprisonment for  attempted
murder,3  or one-third of the total 15  years
to  serve  that  he received for  this  crime
          which, in Twogoods case, would be the same 5
years.  Thus, Twogood would have to serve  60
months   of  his  attempted  murder  sentence
before becoming eligible to apply for parole.
          Next,  because Twogood faced an  8-
year presumptive term for first-degree sexual
assault, his 10-year sentence for that  crime
is   divided  into  two  parts:   the  8-year
presumptive  term,  and  a  2-year  increment
based on aggravating factors.
          Because (under our hypothetical)  5
years  of  this sexual assault  sentence  are
concurrent   with   the   attempted    murder
sentence, the State counts the first 5  years
of  Twogoods 8-year presumptive term as being
served  concurrently with Twogoods  attempted
murder sentence.  This means that, of  the  5
consecutive  years that Twogood received  for
the sexual assault, the first 3 years are the
remainder of his 8-year presumptive term  and
the  next  2 years are the increment.   Under
the  statutes, Twogood would be  required  to
serve  two-thirds of the presumptive  portion
(i.e.,  two-thirds of 3 years, or 24  months)
plus one-quarter of the increment (i.e., one-
quarter of 2 years, or 6 months).
          Thus,   all   told,   if   Twogoods
sentences  are structured in this manner,  he
would   not   be   eligible  to   apply   for
discretionary parole until he served a  total
of  90  months:  60 months for the  attempted
murder,  plus  30 months for the  consecutive
portion of the sexual assault sentence.
          The States response to Question  4:
In  its  response to Question  4,  the  State
explained  that  if Twogoods  sexual  assault
sentence is considered to be the initial  one
that  is, if Twogood was ordered to serve  10
years   for   first-degree  sexual   assault,
followed  by  a  consecutive  10  years   for
attempted murder  he would only have to serve
70  months in prison before becoming eligible
to apply for discretionary parole.
          Again, according to the State, this
calculation  has two steps.   First,  because
Twogood faced an 8-year presumptive term  for
first-degree  sexual  assault,  his   10-year
sentence  for that crime is divided into  two
parts:   the 8-year presumptive term,  and  a
2-year   increment   based   on   aggravating
factors.   To  become eligible to  apply  for
parole under this sentence, Twogood would  be
required  to serve two-thirds of  the  8-year
presumptive  portion (i.e., 64  months)  plus
one-quarter  of  the 2-year increment  (i.e.,
6 months)  a total of 70 months.
          With  respect to Twogoods partially
consecutive  sentence for  attempted  murder,
Twogood would have to serve 60 months of this
sentence  before becoming eligible  to  apply
for parole.  Again, the requisite portion  is
60  months because 60 months (i.e., 5  years)
is   both  the  mandatory  minimum  term   of
imprisonment  for attempted murder  and  one-
third  of the total time to serve (15  years)
that Twogood received for this crime.
          However,    because   (under    our
hypothetical), the first 5 years of  Twogoods
attempted murder sentence are concurrent with
his sexual assault sentence, Twogood would be
concurrently serving the requisite 60  months
of  his  attempted murder sentence  while  he
served  the requisite 70 months of his sexual
assault sentence.
           The result, as a practical matter,
is  that  Twogoods  parole  eligibility  date
would not be affected by his attempted murder
sentence.  After serving 70 months in prison,
Twogood  would satisfy the parole eligibility
requirement for both of his sentences.

Why  we  conclude  that  Twogood  is  entitled  to
clarification of his sentence

     Having undertaken these calculations for  us,
the  State  now concedes that Twogood is currently
eligible  to apply for discretionary  parole.   In
fact,  the  State  concedes  that  Twogood  became
eligible to apply for parole almost two years  ago
in mid-December, 2006.
     However, in making this concession, the State
is  taking advantage of the ambiguity in  Twogoods
sentence  and is construing that ambiguity in  the
light most favorable to itself.
     As  we  explained above, Twogood was arrested
in  connection  with these offenses  on  June  13,
1999,  and  he has remained in custody  from  then
until  now.  In other words, Twogood began serving
his sentences on June 13, 1999.
     This  means  that the States conceded  parole
eligibility date  December 13, 2006  hinges on the
implicit  assertion that Twogood was  required  to
serve 90 months (7 years) before becoming eligible
to  apply for parole.  But this would be true only
if  Twogoods sentences are structured as described
in   Question  3.   In  other  words,  the  States
calculation  of  90  months  hinges   on   viewing
Twogoods   15-year   term  of   imprisonment   for
attempted   murder  as  his  initial  or   primary
sentence, and on viewing his 10-year sentence  for
sexual assault as divided into two parts:  5 years
to  be  served  concurrently  with  the  attempted
murder   sentence,  and  5  years  to  be   served
consecutively to the attempted murder sentence.
          But if, on the other hand, Twogoods sentences
are structured as described in Question 4, then  by the
States  own  calculation  Twogood would  only  have  to
serve  70  months (5 years, 10 months) before  becoming
eligible to apply for discretionary parole.  This means
that  his parole eligibility date would have been April
13,  2005  more than a year and a half earlier than the
December  2006  date  offered  by  the  State  in   its
concession.
          In other words, the States concession on this
point simply highlights the underlying problem in  this
case.   Because the superior court refused  to  clarify
the   structure   of  Twogoods  partially   consecutive
sentences,   there   is   an   irresolvable   ambiguity
concerning how to calculate Twogoods parole eligibility
date  under  the  pertinent statutes.  Twogoods  parole
eligibility date can not be calculated without  knowing
which  of  his terms of imprisonment is the initial  or
primary one, and which is the partially concurrent one.
Thus,  the structure of Twogoods sentences must now  be
clarified to resolve this matter.
          Under   Alaska  double  jeopardy  law,   this
ambiguity  must  be  resolved in Twogoods  favor.   See
Christensen  v. State, 844 P.2d 557, 558  (Alaska  App.
1993);  Curtis  v. State, 831 P.2d 359, 360-61  (Alaska
App.  1992);  Love  v. State, 799  P.2d  1343,  1346-47
(Alaska App. 1990); Joseph v. State, 712 P.2d 904,  906
(Alaska  App. 1986)  all holding that when  an  illegal
sentence needs to be corrected, it may not be increased
unless  the increase is absolutely necessary to correct
the illegality.
          To   avoid  an  after-the-fact  increase   in
Twogoods   sentence,  we  must  choose   the   sentence
structure  that  favors Twogood  the  alternative  that
gives  him the earlier parole eligibility date.   Based
on the States responses to our questions, Twogood has a
significantly earlier parole eligibility date if his 20-
year  composite sentence is construed as a 10-year term
of   imprisonment  for  first-degree  sexual   assault,
followed by a 15-year sentence for attempted murder  of
which  5  years  is concurrent with, and  10  years  is
consecutive to, the sexual assault sentence.

Conclusion

          The   decision  of  the  superior  court   is
REVERSED, and the superior court is directed  to  amend
Twogoods  judgement so that it reflects  the  sentences
explained in the preceding paragraph.

_______________________________
  1 See SLA 2005, ch. 2,  28.

2The current version of AS 33.16.090(b) applies only to
defendants  [whose]  offenses [were]  committed  on  or
after March 23, 2005.  SLA 2005, ch. 2,  33.

3Twogood committed the attempted murder in 1999, when the
mandatory  minimum term of imprisonment for this  crime
was only 5 years.

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