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Jeter v. State (2/17/2017) ap-2541

Jeter v. State (2/17/2017) ap-2541

                                                                                                                     NOTICE
  

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                    errors to the attention of the Clerk of the Appellate Courts:    



                                                                            303 K Street, Anchorage, Alaska  99501  

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                                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                                                    



                                                                                                                                                       Court of Appeals No. A-11892
  

DARIEN LAMAR JETER,                                                                                                                                                                                                  

                                                                                                                                                Trial Court Nos. 3AN-11-12939 CR
  

                                                                                                                                                                                                                                             

                                                                                                                                                                      & 3AN-12-1443 CR
  

                                                                                Appellant,                                                                                                                             



                                                            v.                                                                                                             O  P  I  N  I  O  N  

                                                                                                                                                                                                                     

                                                                                                                                                                               on Rehearing   

STATE OF ALASKA,                

                                                                                                                                                      No. 2541 - February 17, 2017                                               

                                                                                Appellee.  



                                        Appeal    from    the    Superior    Court,    Third    Judicial    District,  

                                        Anchorage, Michael L. Wolverton, Judge.                                                            



                                        Appearances:                                    Jim             Corrigan,                       Assistant                      Public                  Advocate,  

                                        Criminal Defense Section, and Richard Allen, Public Advocate,                                                                                          

                                        Anchorage, for the Appellant.                                                        Ann B. Black, Assistant Attorney                                     

                                        General, Office of Criminal Appeals, Anchorage, and Craig W.                                                                                                              

                                        Richards, Attorney General, Juneau, for the Appellee.                                                                                                        Tracey  

                                        Wollenberg,   Assistant   Public   Defender,   and Quinlan Steiner,                                                                                        

                                        Public Defender, Anchorage, for                                                                  the   Alaska Public Defender                          

                                        Agency, appearing as                                       amicus curiae                             .    



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

                                        District Court Judge.                                       *  

                                                                                                       



                                                          

                                        Judge MANNHEIMER.  



          *  

                    Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                                               


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

                                                                                      This case involves a defendant who committed a new crime while he was                                                                                                                                                                                                                                                                                                                                                                                     



 on probation in two previous criminal cases.                                                                                                                                                                                                                                                      The defendant ultimately received                                                                                                                                                                                                         one  



 sentence in the new criminal case and separate sentences in the probation revocation                                                                                                                                                                                                                                                                                                                                                                                                               



proceedings held in the earlier criminal cases.                                                                                                                                                                                                                                                        The question is whether the defendant                                                                                                                                                            



may appeal some of these sentences without appealing all of them.                                                                                                                                                                                                                                                                                                                                                                           



                                                                                      In our initial opinion in this case,                                                                                                                                                                                        Jeter v. State                                                                             , unpublished, 2015 WL                                                                                                           



2453715 (Alaska App. 2015), we declared that, in these situations, we would not review                                                                                                                                                                                                                                                                                                                                                                                                                                       



the defendant's individual sentences in isolation.                                                                                                                                                                                                                                                             Id.  at *3.                                                     Rather, we would review the                                                                                                                                          



 defendant's total sentence (the direct sentence for the new crime plus the probation                                                                                                                                                                                                                                                                                                                                                                                                                     



revocation   sentences)   as   one   combined   whole   -   and   that,   when   we   resolved   the  



 defendant's sentence appeal, we would assess                                                                                                                                                                                                                                                                   that combined sentence in light of the                                                                                                                                                                                             



 entirety of the defendant's conduct and criminal history.                                                                                                                                                                                                                                                                                                              Ibid.   



                                                                                      We therefore "caution[ed] the defense bar that, in future cases, we [might]                                                                                                                                                                                                                                                                                                                                                          



 decline to hear sentence appeals if the defense does not provide us with the record of                                                                                                                                                                                                                                                                                                                                                                                                                                                                all  



the pertinent court proceedings."                                                                                                                                                                                  Id.  at *2 (emphasis in the original).                                                                                                                                                                                                 



                                                                                      After we issued this initial decision, both the                                                                                                                                                                                                                                                   Office of Public Advocacy                                                                                      



 and the Public Defender Agency asked this Court to reconsider, or at least further clarify,                                                                                                                                                                                                                                                                                                                                                                                                                                



what we said about (1) treating a defendant's direct sentence for a new crime and any                                                                                                                                                                                                                                                                                                                                                                                                                                                            



related probation revocation sentences as a combined whole, and about (2) declining to                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



 consider a defendant's appeal of any of these individual sentences unless the defendant                                                                                                                                                                                                                                                                                                                                                                                                                 



 furnished this Court with the pertinent record in all of the related cases.                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                      We granted rehearing, we allowed the Public Defender Agency to enter this                                                                                                                                                                                                                                                                                                                                                                                     



 case as an                                                       amicus curiae                                                                                    , and we solicited supplemental briefing from the two defense                                                                                                                                                                                                                                                                                       



 agencies and from the State.                                                                                                                                                           Based on our consideration of that supplemental briefing,                                                                                                                                                                                                                                                                  



we now issue this decision amending and clarifying our position on these matters.                                                                                                                                                                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                                       -  2 -                                                                                                                                                                                                                                                                 2541
  


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

                     We disavow our earlier suggestion that,                                                                                    when a defendant                                         receives a   

                    sentence for a new crime and also receives one or more related probation                                                                                                                

                    revocation sentences, these sentences must be evaluated as a unified whole                                                                                                                           

                  for purposes of sentence review                                            



                                       This Court has long recognized that when judges sentence defendants for                                                                                                                                       



two or more crimes in a single sentencing proceeding, judges "generally do not select                                                                                                                                                       



particular individual sentences for the defendant's individual crimes.                                                                                                                                          Rather,   judges  



select a composite total, and then they impose individual sentences that add up to that                                                                                                                                                           



total, often in a fortuitous way."                                                               Richards v. State                                      , 249 P.3d 303, 307 (Alaska App.                                                      

2011). 1  



                                       For this reason, when a defendant is sentenced for two or more crimes in  

                                                                                                                                                                                                                                                        



a single proceeding, this Court does not allow the defendant to appeal their sentences for  

                                                                                                                                                                                                                                                     



individual crimes  as  if  those  sentences  had  been  imposed  in  isolation.                                                                                                                                             Rather,  we  

                                                                                                                                                                                                                                                   



evaluate the defendant's composite sentence - the combined amount of active and  

                                                                                                                                                                                                                                                  



suspended  imprisonment  the  defendant  received  -  in  light  of  the  entirety  of  the  

                                                                                                                                                                                                                                                   



                                                                                                               2  

defendant's conduct and background.  

                                                                                                                       



                                       But as the parties and the amicus curiae point out in their supplemental  

                                                                                                                                                                                                                      



briefs, there are significant problems in applying this "composite" sentence analysis to  

                                                                                                                                                                                                                                                       



situations where a probationer commits a new crime and then receives a sentence for the  

                                                                                                                                                                                                                                                    



new crime plus one or more probation revocation sentences (based on their commission  

                                                                                                                                                                                                                          



of the new crime).  

                                                         



          1  

                    See also Waters v. State                                           , 483 P.2d 199, 202 (Alaska 1971);                                                               Moore v. State                            , 123 P.3d     

 1081, 1094 (Alaska App. 2005);                                                             Allain v. State                           , 810 P.2d 1019, 1022 (Alaska App. 1991);                                                            

Comegys v. State                                 , 747 P.2d 554, 558-59 (Alaska App. 1987).                                                                                 



          2  

                   Richards , 249 P.3d at 307, and the cases cited in footnote 1.  

                                                                                                                                                                                             



                                                                                                                        - 3 -                                                                                                                   2541
  

                                                                                                                                   


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

                             Admittedly,   there will be times when the same judge imposes both the                                                                               



 sentence for the new crime and any related probation revocation sentences, and thus a                                                                                                 



 "composite sentence" approach to sentence review may make sense.                                                                                 But often this will            



not be the case.                     



                             Under Alaska law, a probation revocation proceeding is a continuation of                                                                                

                                                               3  and the revocation proceeding should normally be heard  

the underlying criminal case,                                                                                                                                                

by  the same judge who originally sentenced the defendant. 4                                                                          Thus, if the defendant  

                                                                                                                                                                 



 commits a new crime, and if the defendant's new criminal case is assigned to a different  

                                                                                                                                                                      



judge,  no  single  judge  will evaluate  the  defendant's  composite  sentence.                                                                                       Instead,  

                                                                                                                                                                       



 different  judges  will evaluate  the  defendant's  behavior  and  background  in  different  

                                                                                                                                                                      



 contexts.              One judge will perform this analysis  for  the defendant's new crime,  and  

                                                                                                                                                                                 



 another  judge  (or  judges)  will  perform  this  analysis  for  the  probation  revocation  

                                                                                                                                                                  



proceeding.  

                           



                             The judge who sentences the defendant for the new crime will be assessing  

                                                                                                                                                                      



the  defendant's  conduct  and  the  defendant's  background  within  the  context  of  the  

                                                                                                                                                                                 



 sentencing range that applies to the defendant's new crime.  

                                                                                                                                 



                             But in the probation  revocation proceeding, the judge will be evaluating  

                                                                                                                                                                    



how much (if any) of the defendant's previously suspended jail time to impose in the  

                                                                                                                                                                                  



 earlier  case.                In  making that  determination,  the  revocation  judge  will consider  the  

                                                                                                                                                                                  



 defendant's  new  criminal  conduct  -  but  only  in  the  context  of  evaluating  the  

                                                                                                                                                                                 



 seriousness of the defendant's original offense, the defendant's background, the nature  

                                                                                                                                                                            



        3  

              McKinnon v. State                     , 526 P.2d           18, 25 (Alaska1974);                       State v.Galbraith                   ,199 P.3d 1216,       

 1218 (Alaska App. 2009).                              



        4  

                                                                                                                                                                              

               Kvasnikoff v. State , 535 P.2d 464, 466 (Alaska 1975); McRae v.State ,909 P.2d1079,  

                                                      

 1083 (Alaska App. 1996).  



                                                                                                

                                                                                        - 4 -                                                                                  2541
  


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

 of   the   defendant's   entire   conduct   while   on   probation,   and   the   seriousness   of   the  



                                                                                                                  5  

violations that led the court to revoke the defendant's probation.                                                    



                        Because  these  sentencing  evaluations  will  typically  be  performed  at  

                                                                                                                                                      



different times, the first judge will often have little idea what kind of sentence the other  

                                                                                                                                                 



judge(s) will impose later.  Indeed, the judge who is conducting one sentencing hearing  

                                                                                                                                             



may be unaware that the defendant will face another sentencing in front of a different  

                                                                                                                                          



judge.  For example, the agency that prosecuted the defendant for the earlier crime (the  

                                                                                                                                                   



 crime for which the defendant is on  probation) may be waiting to see what kind of  

                                                                                                                                                      



 sentence the defendant receives for the new crime before that agency decides whether  

                                                                                                                                            



to seek revocation of the defendant's probation.  

                                                                                       



                        For these reasons, we disavow the portion of our initial opinion (Jeter, 2015  

                                                                                                                                                 



WL 2453715 at *1-2) where we declared that Jeter's sentence for his new crime and his  

                                                                                                                                                     



two  probation  revocation  sentences  should  be  viewed  as  one  composite  whole  for  

                                                                                                                                                    



purposes of any sentence appeal.  And we disavow our decisions in Moya v. State, 769  

                                                                                                                                                   



P.2d 447, 449 (Alaska App. 1989), and Steve v. State, 875 P.2d 110, 125-26 (Alaska  

                                                                                                                                            



App. 1994), to the extent that they are inconsistent with the rule we adopt here.  

                                                                                                                                              



                        We also modify the portion of our initial opinion (Jeter, 2015 WL 2453715  

                                                                                                                                           



 at *2) where we suggested that defendants in this situation -  i.e.,  defendants who  

                                                                                                                                                  



receive  a  direct  sentence  for  a  new  crime  plus  one  or  more  probation  revocation  

                                                                                                                                       



 sentences based on the new crime - must appeal all of their sentences if they wish to  

                                                                                                                                                      



 challenge any one of them.  

                                                   



                        As the parties  and the amicus curiae point out, it will often be true that  

                                                                                                                                                   



 some of the defendant's sentences are not appealable - either because the term of  

                                                                                                                                                      



imprisonment was specified in a plea agreement, or because the term of imprisonment  

                                                                                                                                  



      5  

            See Toney v. State              , 785 P.2d 902, 903 (Alaska App. 1990).                              



                                                                         -  5 -                                                                  2541
  


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

imposed at the discretion of the sentencing judge does not exceed 2 years to serve (for                                                                 



                                                                                                6  

a felony) or 120 days to serve (for a misdemeanor).                                                 



                         In addition, there will be times when one of the defendant's sentences is  

                                                                                                                                                             



imposed significantly later than the others - meaning that the time for appealing the  

                                                                                                                                                          



                                                                                                                                                         7  

earlier sentences may have expired by the time the last related sentence is imposed.  

                                                                                                                                                             



                         Finally,  there will be times  when  the defendant wishes to appeal their  

                                                                                                                                                       



sentence for a new crime but the defendant does not yet know whether they will receive  

                                                                                                                                                  



an additional term of imprisonment in a probation revocation proceeding.  

                                                                                                                                       



                         We  therefore  disavow  our  suggestion  that  defendants  who  receive  a  

                                                                                                                                                             



sentence for a new crime plus one or more probation revocation sentences based on the  

                                                                                                                                                          



new crime must appeal all of their related sentences if they wish to challenge any one of  

                                                                                                                                                            



them.  

            



                         This is not to say, however, that a defendant's other related sentences are  

                                                                                                                                                          



irrelevant.   Although the first judge to sentence the defendant will obviously not know  

                                                                                                                                                     



what sentences  the defendant may receive in other related cases,  a judge who  later  

                                                                                                                                                       



sentences the defendant in a related case will know what sentence(s) the defendant has  

                                                                                                                                                         



previously received.  Those prior sentences may be important to the judge's evaluation  

                                                                                                                                             



of the appropriate sentence in the case pending before them.  

                                                                                                                  



                         Under Alaska law, the sentence that a defendant receives for a new crime  

                                                                                                                                                      



and the sentence that the defendant receives in a related probation revocation proceeding  

                                                                                                                                            



must be consecutive.   See AS 12.55.127(a), as interpreted in Smith v. State, 187 P.3d  

                                                                                                                                                       



511, 515, 519-520 (Alaska App. 2008).   Because of this requirement of consecutive  

                                                                                                                                          



      6  

            See  Alaska Appellate Rule 215(a)(1).                              



      7  

                                                                                                                                                 

            See Alaska Appellate Rule 215(c) (establishing a 30-day deadline for filing a sentence 

                                                                                                                                                             

appeal)  and Appellate  Rule  521  (declaring that  this  Court  has  no  authority to  accept  a  

                                                                                   

sentence appeal that is more than 60 days late).  



                                                                                   

                                                                           - 6 -                                                                       2541
  


----------------------- Page 7-----------------------

sentencing, any sentence that has already been imposed on the defendant in a related case                                                                        



may   well   be   pertinent   to   a   later   judge's   assessment   of   the   appropriate   term   of  



imprisonment,   or the judge's                              assessment   of the sorts of conditions to place on the                                                



                                             8  

defendant's probation.                          



                          Normally,  if a sentencing judge considers the earlier  sentences that the  

                                                                                                                                                                   



defendant received in related cases, or if the attorneys refer to the defendant's earlier  

                                                                                                                                                             



sentences during their arguments to the sentencing judge, this  will create a sufficient  

                                                                                                                                                      



record for any ensuing sentence appeal - a record sufficient to allow this Court to  

                                                                                                                                                                     



evaluate the role of those earlier sentences in the sentencing judge's decision.   But if,  

                                                                                                                                                                     



in these circumstances, the parties conclude that this Court needs a fuller record of the  

                                                                                                                                                                   



earlier sentencing proceedings in order to evaluate the sentence that is the subject of the  

                                                                                                                                                                   



appeal,  the parties may ask this Court to supplement the record on appeal with the  

                                                                                                                                                                  



pertinent portions of the sentencing proceedings in those earlier related cases.  

                                                                                                                                                        



             Conclusion  



                          When a defendant who is on probation commits a new crime and receives  

                                                                                                                                                          



a sentence for their new crime plus probation revocation sentences based on the same  

                                                                                                                                                               



crime, these sentences can be appealed individually.  Defendants in this situation need  

                                                                                                                                                                



not appeal all of their related sentences if they only wish to appeal one or some of them.  

                                                                                                                                                                           



                          Moya v. State, 769 P.2d 447, 449 (Alaska App. 1989), and Steve v. State,  

                                                                                                                                                              



875 P.2d 110, 125-26 (Alaska App. 1994), are disavowed to the extent that they declare  

                                                                                                                                                            



a different rule.  

                                



       8  

             See Neal v. State              , 628 P.2d 19, 21 (Alaska 1981);                            Haught v. State              , unpublished, 2015        

WL 651079, *1-2 (Alaska App. 2015);                                     Benton v. State              , unpublished, 2001 WL 1299051, *2                              

(Alaska App. 2001).                    



                                                                                -  7 -                                                                          2541
  

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