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Grant v. State (8/19/2016) ap-2512

Grant v. State (8/19/2016) ap-2512

                                                                                             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@ akcourts.us  



                                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                       



TRISTAN  JAMALL  GRANT,  

                                                                                                                         Court of Appeals No. A-12619  

                                                                                                                                                                          

                                                               Petitioner,                                           Trial Court No. 3AN-11-7467 CR  

                                                                                                                                                                                           



                                               v.  

                                                                                                                                        O  P  I  N  I  O  N  

                                                                                                                                                                           

STATE OF ALASKA,  

                          



                                                               Respondent.                                                No. 2512 - August  19, 2016  

                                                                                                                                                                                  



                                Petition for  Review from the  Superior  Court,  Third Judicial  

                                                                                                                                                            

                                District, Anchorage, Paul E. Olson, Judge.  

                                                                                                                



                                Appearances:  Michael T. Schwaiger, Assistant Public Defend- 

                                                                                                                                                            

                                er, and Quinlan Steiner, Public Defender, Anchorage, for the  

                                                                                                                                                                       

                                Petitioner.                 Jenna L.  Gruenstein,  Assistant  District  Attorney,  

                                                                                                                                                        

                                Anchorage,  and  James  E.  Cantor,  Acting  Attorney  General,  

                                                                                                                                                          

                                Juneau, for the Respondent.  

                                                                                                



                                Before:  Mannheimer, Chief Judge, and Allard, Judge.  

                                                                                                                                                         



                                Judge MANNHEIMER.  

                                              



                                While Tristan Jamall Grant was on probation for fourth-degree controlled                                                                              



substance misconduct in this case, he committed a new crime - a federal offense - and                                                                                                                



Grant's state probation officer filed a petition to revoke his probation.                                                                                              


----------------------- Page 2-----------------------

                                                             While that probation revocation petition was pending,                                                                                                                                                                                                        the federal court                                     



 sentenced Grant to serve 6 months' imprisonment for the new federal crime.                                                                                                                                                                                                                                                                                          Several  



weeks later, the superior court revoked Grant's probation in this case and sentenced him                                                                                                                                                                                                                                                                                                 



to serve 2 months of his previously suspended jail time.                                                                                                                                                                                                       



                                                             The   superior   court   initially   made   this   2-month   probation   revocation  



 sentence   concurrent   with   Grant's   federal   sentence.     But   the   superior   court   later  



concluded   that,   under   Alaska   sentencing   law,   these   two   sentences   had   to   run  



consecutively.    The court therefore amended Grant's judgement to make the 2-month                                                                                                                                                                                                                                                                                



probation revocation sentence consecutive to Grant's federal sentence.                                                                                                                                                                                                                                                              



                                                             Grant now petitions this Court to reverse the superior court's decision -                                                                                                                                                                                                                                                        



to order the superior court to again make                                                                                                                                                        the 2-month probation revocation sentence                                                                                                                       



concurrent with Grant's federal sentence.                                                                                                                                                      Grant argues that the superior court violated                                                                                                                          



his rights under the double jeopardy clause when the court amended Grant's probation                                                                                                                                                                                                                                                                           



revocation sentence to make it consecutive to his federal sentence.                                                                                                                                                                                                                                              



                                                             We grant the petition for review - and, for the reasons explained here, we                                                                                                                                                                                                                                                      



affirm the superior court's decision.                                                                                                                                



                               The superior court's interpretation of AS 12.55.127(a) was correct                                                                                                                                                                                                                 



                                                             Normally, once a criminal sentence is meaningfully imposed, any increase                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                                                    1             But  a  sentence  is  not  

in   that   sentence   will   violate   the   double   jeopardy   clause.                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                               2  Thus, if a sentence  

"meaningfully imposed" for these purposes if the sentence is illegal.  

                                                                                                                                                                                                                                                                                                                                                         



                1              Sonnier v.State                                                      ,483 P.2d 1003, 1005 (Alaska 1971);                                                                                                                            Forsterv.State                                                      ,236 P.3d1157,                             



 1172 (Alaska App. 2010);                                                                                       Lapp v. State                                                , 220 P.3d 534, 537 (Alaska App. 2009).                                                                                                                                         



               2  

                                                                                                                                                                                                                                                                                                                                                                                       

                               Smith v. State, 892 P.2d 202, 203 (Alaska App.1995); Dunham v. Juneau , 790 P.2d  

                                                                                                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                                                            - 2 -                                                                                                                                                                                        2512
  


----------------------- Page 3-----------------------

is illegally lenient, the sentencing court                              may adjust it upward - although only to the                                 



                                                                   3  

extent necessary to cure the illegality.                              



                        In  Grant's  case,  the  superior  court  concluded  that,  under  Alaska  law,  

                                                                                                                                                  



Grant's 2-month probation revocation sentence had to be consecutive to the sentence  

                                                                                                                                          



Grant received  for  his new federal crime.                                      Thus,  the court concluded,  it had acted  

                                                                                                                                                



illegally when it made the probation revocation sentence concurrent with Grant's federal  

                                                                                                                                              



sentence.  

                   



                        The superior court based its ruling on subsection (a) of AS 12.55.127, the  

                                                                                                                                                     



statute that governs consecutive sentencing.  Subsection (a) declares:  

                                                                                                           



                          

                                    If   a  defendant   is  required  to  serve   a   term  of  

                                                                                                                             

                        imprisonment under a separate judgment, [then any] term of  

                                                                                                                               

                        imprisonment   imposed   in   a                           later   judgment,               amended  

                                                                                                                

                       judgment, or probation revocation shall be consecutive.  

                                                                                                                           



                        Admittedly, the meaning of this provision might not be immediately clear.  

                                                                                                                                                           



But in Smith v. State, 187 P.3d 511, 515 (Alaska App. 2008), we held that subsection (a)  

                                                                                                                                                     



was intended to re-codify Alaska's  pre-existing rule about consecutive sentencing in  

                                                                                                                                                      



cases where a defendant commits a new crime.  More specifically, we held in Smith that  

                                                                                                                                                   



AS 12.55.127(a) was intended to re-codify the interpretation of former AS 12.55.025(e)  

                                                                                                                                   



that this Court adopted in  Wells v. State, 706 P.2d 711, 714 (Alaska App. 1985).  

                                                                                                                                                  



      2     (...continued)  



                                                                                                                                                   

239, 240-41 (Alaska App. 1990); State v. LaPorte, 672 P.2d 466, 468-69 & n. 6 (Alaska App.  

                                                                                                                                                   

1983);Charles A. Wright, FederalPractice and Procedure: Criminal (2nd ed. 1982),  582,  

                                  

Vol. 3, pp. 380-89.  



      3  

                                                                                                                                                   

            Byford v. State , 352 P.3d 898, 906 (Alaska App. 2015); Smith v. State, 892 P.2d 202,  

                                                                                                                                               

203-04 (Alaska App. 1995); Christensen v. State, 844 P.2d 557, 558 (Alaska App. 1993);  

                                                                                                                                            

Curtis v.State, 831 P.2d 359, 360 (Alaska App. 1992); Love v.State ,799 P.2d1343,1346-47  

                                                                                                                                       

(Alaska App. 1990); Joseph v. State , 712 P.2d 904, 905-06 (Alaska App.1986).  



                                                                         - 3 -                                                                    2512
  


----------------------- Page 4-----------------------

                                                                                                                      

                    Under former AS 12.55.025(e), as interpreted in  Wells, when a defendant  



                                                                                                                              

was sentenced for a probation violation based on the defendant's commission of a new  



                                                                                                                

crime, the court was required to impose the probation revocation sentence consecutively  



                                                                                                                                 

to the defendant's sentence for the new crime.   We clarified this matter in Jackson v.  



                                                                           

State, 31 P.3d 105, 107-08 (Alaska App. 2001):  



                      

                                                                                                 

                    Under  AS  12.55.025(e),  when  a  defendant  is  sentenced  

                                                                                                              

                     for  a  new  crime  and  faces  revocation  of  probation  for  a  

                                                                                                                  

                    previous crime, the sentences must be imposed consecutively.  

                                                                                                   

                    To the extent that [the court] imposed Jackson's sentence  

                                                                      

                     concurrently, that sentence was illegal.  

                      

                                                                                                                            

See also Callan v. State, 904 P.2d 856, 857 & n. 3 (Alaska App. 1995); Jennings v. State,  



                                                                       

713 P.2d 1222, 1223-24 (Alaska App. 1986).  



                                                                                                                               

                    Because this was the rule before the enactment of AS 12.55.127(a), and  



                                                                                                                              

because AS 12.55.127(a) was intended to re-codify  this  rule, the superior court was  



                                                                                                                                

correct  when  it  concluded  that  Grant's  probation  revocation  sentence  had  to  be  



                                                                                           

consecutive to the sentence he received for his new crime.  



                                                                                                                 

          Grant's argumentthat AS 12.55.127(a) does not apply to defendants whose  

                                                                  

          new crime is a violation of federal law  



                                                                                                                                  

                     Grant  argues that even if AS 12.55.127(a) calls for this result when  a  



                                                                                                                              

defendant's probation is revoked for the commission of a new crime under Alaska law,  



                                                                                                                               

the statute does not apply when the defendant's new crime is a violation of federal law  



                                                                                      

- or, presumably, a violation of any other state's law.  



                                                                                                                               

                    In making this argument, Grant relies on the rule of lenity -that is, the rule  



                                                                                                                             

that penal statutes should be construed against the government.  Grant argues that since  



                                                                                                                            

AS 12.55.127(a) does not explicitly refer  to crimes defined under the laws of other  



                                                               - 4 -                                                          2512
  


----------------------- Page 5-----------------------

jurisdictions, the statute should be interpreted as not applying when a defendant commits                                                                                               



 a new crime under federal law or under the law of another state.                                                                                        



                                Under the rule of lenity, when a statute establishing a criminal penalty is                                                                                             



reasonably susceptible of more than one meaning, the statute should be construed so as                                                                                                                 

                                                                                    4    But as this Court explained in De Nardo v. State,  

 to provide the most lenient penalty.                                                                                                                                                         



 "this rule of lenity or strict  construction comes into play only when, after employing  

                                                                                                                                                                                   



normal methods of statutory construction, the legislature's intent cannot be ascertained  

                                                                                                                                                                                 



 or remains ambiguous."  819 P.2d 903, 907 (Alaska App. 1991).  

                                                                                                                                                          



                                This Court has also explained that the rule of lenity does not require courts  

                                                                                                                                                                                              



 to minutely probe statutes for any conceivable ambiguity or lack of clarity.  Even though  

                                                                                                                                                                                            



 criminalstatutes are generally construed strictly, "[s]trict construction ... does not require  

                                                                                                                                                                                            



 that statutes be given the narrowest meaning allowed by [their] language".                                                                                                              State v.  

                                                                                                                                                                                                       



Jones, 750 P.2d 828, 831 (Alaska App. 1988).  Rather, criminal statutes should still be  

                                                                                                                                                                                                      



 given "a reasonable or common sense construction, consonant with the objectives of the  

                                                                                                                                                                                                     



 legislature."   Ibid.,  quoting Belarde v.  Anchorage,  634 P.2d 567,  568 (Alaska App.  

                                                                                                                                                                                                



 1981).  



                                The rule of mandatory consecutive sentencing that was formerly codified  

                                                                                                                                                                                         



 in AS 12.55.025(e), and that is currently codified in AS 12.55.127(a), was intended to  

                                                                                                                                                                                                       



 ensure  that  defendants  receive  some  measure  of  additional punishment  when  they  

                                                                                                                                                                                                 



 commit new crimes after being sentenced for earlier crimes.   Grant fails  to offer any  

                                                                                                                                                                                                   



plausible explanation as to why  the  legislature would not want this rule to apply to  

                                                                                                                                                                                                       



 defendants whose new crimes are violations of federal law or the laws of other states.  

                                                                                                                                                                                          



        4        Ward v. Dept. of Public Safety                                      , 288 P.3d 94, 97-98 (Alaska 2012);                                               State v. Parker                    ,  



 147 P.3d 690, 697 (Alaska 2006);                                            State v. Andrews                      , 707 P.2d 900, 907 (Alaska App. 1985).                                                    



                                                                                                 - 5 -                                                                                            2512
  


----------------------- Page 6-----------------------

                                                                     We therefore reject Grant's argument that AS 12.55.127(a) does not apply                                                                                                                                                                                                                                                                                       



when a defendant's new crime is a violation of federal law.                                                                                                                                                                                                                                                         



                                   Conclusion  



                                                                     The decision of the superior court is AFFIRMED.                                                                                                                                                                                                                       



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