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Starkey v. State (10/28/2016) ap-2526

Starkey v. State (10/28/2016) ap-2526


            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 @



                                                                                           Court of Appeals No. A-11514  

                                                Petitioner,                              Trial Court No. 4FA-08-2424 CR  


                                                                                                          O P I N I O N  


                                                Respondent.                                 No. 2526 - October 28, 2016  


                        Petition  for Review from the Superior Court, Fourth Judicial  

                        District, Fairbanks, Paul R. Lyle, Judge.  

                        Appearances:   Robert   John,   Law   Office   of   Robert   John,  


                        Fairbanks, for the Petitioner. J. Michael Gray, District Attorney,  


                        Fairbanks, and Michael C. Geraghty, Attorney General, Juneau,  


                        for the Respondent.  

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


                        District Court Judge. *  

                        Judge ALLARD.  

                        In this petition for interlocutory review, we are asked to decide whether the                                                   

superior court violated due process and the prohibition against double jeopardy when it                                                                    

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

Constitution and Administrative Rule 24(d).  

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

rescinded a prior court order erroneously discharging a defendant from probation and                                                                                                 

setting aside his conviction.                                 For the reasons explained here, we conclude that the court                                                          

had the authority to rescind its plainly erroneous discharge and set-aside order.                                                                               

              Factual background and prior proceedings                             

                             Following a bench trial, Dale G. Starkey was convicted of fourth-degree                                                           

misconduct   involving  a   controlled   substance   for   possessing   25   or   more   marijuana  



                   At sentencing, the superior court granted Starkey a suspended imposition of  



sentence (SIS) and placed him on supervised probation for two years. 


                             Starkey subsequently appealed his conviction, which automatically stayed  



his probation under Alaska Appellate Rule 206(a)(3).                                                                   This appellate rule provides that  


"[a]n order placing the defendant on probation shall be stayed if an appeal is taken and  



the defendant received a suspended imposition of sentence."                                                                           Under this rule, the court  


can order the probation to commence notwithstanding the pendency of the appeal but  



only at the defendant's request. 

        1      AS 11.71.040(a)(3)(G).  

       2       See AS 12.55.085(a) (authorizing a court to suspend imposition of sentence for certain                                                 

offenses "if it appears that there are circumstances in mitigation of the punishment, or that  

the ends of justice will be served").  

       3       See  Alaska R. App. P. 206(a)(3) (providing for automatic stay of probation for a  


defendant  who  receives  a  suspended  imposition  of  sentence  or  "a  composite  term  of  


imprisonment that is suspended in its entirety");  see also Wickham v. State, 770 P.2d 757,  

760  (Alaska  App.  1989)  ("There  appears  to  be  a  widespread  lack  of  awareness  of  the  


automatic stay of probation provided for under Appellate Rule 206.").  

       4       Alaska R. App. P. 206(a)(3) (emphasis added).  

       5      Id.   ("The  defendant  may  move  the  sentencing  court  to  commence  probation  



                                                                                         - 2 -                                                                                   2526

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

                             Starkey did not request that his probation begin during the pendency of his                                                                               

appeal and his probation therefore remained stayed as a matter of law until his appeal                                                                                        

became final.                   

                             (Notwithstanding   this   stay,   Starkey   apparently   served   five   months   on  

supervised felony probation because the probation department did not initially realize                                                                                        

that   Starkey   had   appealed   his  conviction   and   that   his   probation   was   therefore  

automatically stayed.                           Once the probation department recognized its mistake, however,                                                           

Starkey's time on supervised probation ended and the stay continued - leaving the                                                                                   

majority of Starkey's probation time still unserved.                                                            6)  


                             Twoyears into thependency ofStarkey's appeal,whileStarkey'sprobation  


remained stayed under Appellate Rule 206(a)(3), the superior court issued a notice to the  


parties under the mistaken belief that Starkey had continued to serve his probation during  



the pendency of his appeal and his probationary term was therefore close to expiring. 


The court's notice incorrectly stated that Starkey's probation "was about to expire," and  


alsospecificallywarnedtheDistrict Attorney's Officeand theDepartment ofCorrections  


that,  30  days  after  Starkey's  probation  expired,  the  court  would  issue  an  order  


discharging Starkey from probation and setting aside his conviction - unless the State  

       5       (...continued)  

immediately.  If the defendant's motion is granted, the sentencing court shall issue an order  


specifying when the defendant's probation will commence.").  

       6       We note that Starkey may be entitled to credit for the time spent on supervised felony  


probation provided that he was in compliance with his probation during that time.  See, e.g.,  


 Wickham,  770  P.2d  at  760  (granting  credit  for  defendant  who  successfully  completed  


supervised  felony  probation,  even  though  his  probation  was  technically  stayed  under  


Appellate Rule 206(a)(3)).  

       7       See Alaska R. Crim. P. 35.2(b) ("The court shall notify the state at least 20 days prior  


to the expiration of defendant's probationary term that the court will consider whether to  


discharge the defendant from probation and to set aside the defendant's conviction.").  


                                                                                         -  3 -                                                                                  2526

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

"show[ed] cause why the discharge date should be postponed or unless a petition to                                                         

revoke probation is filed."                     8  


                        Neither the District Attorney's Office nor the Department of Corrections  


responded to the court's erroneous notice.  


                         In  March  2012,  this  Court  issued  its  decision  affirming  Starkey's  



                          Following  our  decision,  Starkey  petitioned  for  hearing  to  the  Alaska  



Supreme Court, which denied the petition on July 9, 2012. 


                        At this point, Starkey's appeal wasfinal, theautomaticstayunder Appellate  


Rule 206(a)(3) was lifted, and Starkey's probation should have begun.  But this is not  


what  happened.                   Instead,  based  on  its  mistaken  belief  that  Starkey  had  long  since  


successfully  served  his  full  term  of  probation,  the  superior  court  issued  an  order  


mistakenly discharging Starkey from his probation and setting aside his conviction.  


                         The court's order stated (erroneously):  


                         The  period  of  probation  has  expired  without  the  court  


                         imposing sentence and defendant is entitled to be discharged  


                        under the provisions of AS 12.55.085(d) and Criminal Rule  



                         IT IS ORDERED that the case is closed and the defendant is  


                         discharged by the court without imposition of sentence.  

      8     Id. ;  see  also  State  v.  Mekiana,  726   P.2d   189,   193   (Alaska   1986)  (holding   that  

defendants who have been granted suspended imposition of sentences and successfully                                                       

complete their probationary terms are entitled to have their convictions set aside absent a                                                      

showing of good cause by the State).   

      9     This Court issued its decision affirming Starkey's conviction on March 9, 2012. See  

Starkey v. State, 272 P.3d 347 (Alaska App. 2012).  Starkey filed a petition for re-hearing to  


this Court, which was denied.   Starkey then filed a petition for hearing with the Alaska  


Supreme Court, which was denied on July 9, 2012.  

      10    See Alaska R. App. P. 512(a)(2)[a].  

                                                                           - 4 -                                                                      2526

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

                                                                                    . . . .  

                                                        IT IS FURTHER ORDERED that Judgment of conviction is                                                                                                                                                                                              

                                                        hereby set aside, and that a copy of this Order shall serve as                                                                                                                                                                                 

                                                        defendant's certificate pursuant to AS 12.55.085(e).                                                                                                            

The order was distributed to the parties on August 7, 2012.                                                                                                                                                                                                     The State did not timely                                                     

object to the order as erroneous; nor did the State appeal the order.                                                                                                                                                                                                                    

                                                        About a month later, on September 11, 2012, Starkey was arrested for an                                                                                                                                                                                                                               

unrelated misdemeanor assault charge.                                                                                                                                   Following Starkey's arrest, the State filed a                                                                                                                                             

petition to revoke Starkey's probation, arguing that the court's discharge and set-aside                                                                                                                                                                                                                                           

order was issued erroneously and was therefore without any legal effect.                                                                                                                                                                                                                                             The State's   

petition further alleged that Starkey had violated his probation by(1) committing the new                                                                                                                                                                                                                                                              

misdemeanor assault; and (2) failing to report tohis probation from"March to September                                                                                                                                                                                                                                      


                                                        Starkey moved to dismiss the State's petition to revoke his probation,                                                                                                                                                                                              

arguing that jeopardy had already attached to the court's discharge and set-aside order.                                                                                                                                                                                                                                                                                    

 Starkey also argued that it would violate due process to allow the petition to revoke                                                                                                                                                                                                                                                    

probation to proceed given the State's failure to timely object to the court's order.                                                                                                                                                                                                                                                                   

                                                        The superior court denied Starkey's motion to dismiss.                                                                                                                                                                                     Relying on this                                      


Court's decision in                                                             Champion v. State                                                              ,                                                                                                                                                                                         

                                                                                                                                                                          the superior court ruled that the discharge and  


 set-aside order was void ab initio (void "from the beginning") because the court lacked  


the statutory authority to grant Starkey a mandatory discharge from his probation before  


he had actually completed his probation.  Based on this reasoning, the court vacated the  

               11           908   P.2d  454,  469  (Alaska  App.  1995)  (holding  that  a  court  order  granting  a  

conviction set-aside to a defendant who was legally ineligible to receive a set-aside was void   

ab initio); see also Richey v. State, 717 P.2d 407, 410-11 (Alaska App. 1986) (same).  

                                                                                                                                                                           -  5 -                                                                                                                                                                  2526

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

prior order, reinstated Starkey's original SIS, and scheduled a hearing to address the                                                                                                                                                                                                                    

underlying merits of the State's petition to revoke Starkey's probation.                                                                                                                                                 

                                                Starkey petitioned this court for interlocutory relief. At the direction of the                                                                                                                                                                             

Alaska Supreme Court, we granted the petition and ordered supplemental briefing.                                                                                                                                                                                          

                        Did the protections against double jeopardy attach to the court's order?                                                                                                                                                                    

                                                Under AS 12.55.085(a), a court may suspend imposition of sentence for                                                                                                                                                                                      

certain crimes when there are circumstances in mitigation or the ends of justice will                                                                                                                                                                                                                  

otherwise be served by the suspension.                                                                                                       When the court imposes an SIS, the court must                                                                                                           

place the defendant on probation "for a period of time, not exceeding the maximum term                                                                                                                                                                                                                

of sentence that may be imposed or a period of one year, whichever is greater."                                                                                                                                                                                                               12  


                                                If the defendant later violates the terms of his probation, the court has the  


discretionary authority under AS 12.55.085(c) to revoke the defendant's probation and  


to impose a regular criminal sentence. If, however, the defendant successfully completes  


his full term of probation without imposition of sentence, the defendant is then entitled  


to a mandatory discharge from probation and the court is required to discharge the  



defendant from probation. 


                                                In addition to the mandatory discharge from probation, the court also has  


the discretionary authority to end the defendant's probation early if the court finds that  

             12         AS 12.55.085(a).  

             13         AS 12.55.085(d) ("if the court has not revoked the order of probation and pronounced                                                                                                                  

sentence, the defendant shall, at the end of the term of probation, be discharged by the                                                                                                                                                                                                                   

court") (emphasis added).  

                                                                                                                                                   -  6 -                                                                                                                                           2526

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

"the ends of justice will be served" and "the good conduct and reform of the person held                                                            

on probation warrant it."                    14  


                        Once a defendant has been validly discharged from probation without  


imposition of sentence, the court has the authority under AS 12.55.085(e) to set aside the  



defendant's conviction. 


                        Here, the record is clear that the superior court discharged Starkey from  


probation and set aside his conviction because the court mistakenly believed that Starkey  


had successfully completed his full term of probation and was therefore entitled, as a  



matter of law, to a mandatory discharge from probation under AS 12.55.085(d).                                                                   When  


the superior court realized its mistake, the court then rescinded its order as void, relying  



on this Court's decision in Champion. 


                        But  Champion  dealt  with  a  different  (albeit  related)  problem.                                                          In  

Champion, the erroneous set-aside was issued to a defendant who had already lost his  



SIS and had  just finished  serving  probation  on  a  regular  criminal sentence. 


defendant in  Champion was therefore no longer eligible under the law to receive a  



conviction set-aside and the court likewise had no authority to grant one.                                                              

      14    AS 12.55.085(d).  

      15    Alaska Statute 12.55.085(e) provides that "[u]pon the discharge by the court without  

imposition of sentence, the court may set aside the conviction and issue to the person a  


certificate to that effect." (emphasis added).  

      16    See AS 12.55.085(d); Alaska R. Crim. P. 35.2; Mekiana , 726 P.2d at 193.  

      17    908 P.2d at 467; see also Richey, 717 P.2d at 410-11.  

      18    Champion, 908 P.2d at 469-70.  

      19    Id.  

                                                                         -  7 -                                                                   2526

----------------------- Page 8-----------------------

                         In contrast, here, the court issued the erroneous order to a defendant who                                                    


 still had his SIS and who was eligible to receive a conviction set-aside.                                                                                

                                                                                                                                     Moreover, the  


 court had the statutory authority (in theory at least) to discharge the defendant from his  


probation early if the court found that "the ends of justice" would be served by the early  


 discharge  and  if  the  court  found  that  the  defendant's  "good  conduct  and  reform"  



warranted the early discharge. 


                         The problem in Starkey's case, however, is that it is clear from the face of  


the order that the superior court was not exercising this discretionary authority here. The  


 order  states  (erroneously)  that  Starkey's  probation  has  expired  and  that  Starkey  is  


therefore entitled to discharge from his probation as a matter of law. The order does not  


 contain any of the necessary findings regarding "the ends of justice" or any findings  


regarding Starkey's "good conduct and reform."  Nor was the court in any position to  


make such findings given its limited (and inaccurate) knowledge of Starkey's probation.  


                         The critical question in Starkey's case, therefore, is whether the superior  


 court nevertheless retained the authority to correct its mistake once it became clear that  


 Starkey  had  not  completed  his  term  of  probation  and  Starkey  was  not  entitled  to  


 discharge from his probation as a matter of law.  


                         The District of Columbia Court of Appeals faced a similar question in  



Lindsay v. United States .                          In Lindsay, the trial court issued an order discharging the  


juvenile defendant from probation - thereby setting aside the juvenile's conviction -  


based on a probation report that mistakenly declared that the juvenile had successfully  

       20    AS 12.55.085(e).  

       21    AS 12.55.085(d).  

       22    520 A.2d 1059 (D.C. 1987).  

                                                                           -  8 -                                                                     2526

----------------------- Page 9-----------------------


completed his term of probation.                                    As in Starkey's case, the erroneous basis for the                                         

court's discharge order was clear on the face of the order.  When the court discovered                                                          

its mistake almost a month later, the court issued a new order vacating the prior discharge                                                        



and   set-aside   order   and   reinstating   the   juvenile's   probation.                                                     The  juvenile  then  


appealed, arguing that the trial court had no authority to vacate its prior order and that  



its actions violated the prohibition against double jeopardy. 


                         The Court of Appeals for the District of Columbia rejected the juvenile's  


claims.  The court found no merit to the juvenile's contention that a set-aside order was  


the functional equivalent of a jury acquittal, reasoning that because a set-aside "does not  


alter the fact of conviction but rather shields it from public view and effect, [it] cannot  


be equated to, and indeed is distinctly different from, the final and unqualified act of an  



acquittal."             The court also found no merit to the juvenile's claim that vacating the prior  


order would put the juvenile twice in jeopardy, noting that "the vacation of the erroneous  


order simply reinstates the original probationary status; no new prosecution or new  



punishment is involved." 


                         Instead, the court analogized the plainly erroneous discharge and set-aside  


order to an illegal sentence that is unauthorized by the law or to an erroneous post- 


verdict  judgment  of  acquittal,  neither  of  which  are  considered  final  judgments  for  

      23    Id. at 1061.  

      24    Id.  

      25    Id.   

      26    Id. at 1063.  




                                                                             -  9 -                                                                       2526

----------------------- Page 10-----------------------


purposes of the double jeopardy clause.                                                                The court therefore concluded that the trial                                                     

 court had the authority to vacate the erroneous order at issue in this case - which the                                                                                                                  

 court characterized as "patently erroneous both in fact and in law" - without violating                                                                                                    


 any vested rights under the double jeopardy clause.                                                                                

                                 Other courts have come to similar conclusions when faced with similarly  


 erroneous conviction set-aside orders.30  


                                                                                                Our case law also recognizes that jeopardy does  



 not attach to a sentence that is otherwise unauthorized by law. 


                                 Applying  these  same  principles  to  Starkey's  case,  we  conclude  that  


jeopardy did not attach to theplainly erroneous discharge and set-aside order issued here.  


 The trial court therefore had the authority to correct its earlier mistake and to reinstate  


 the original terms of Starkey's SIS without violating the constitutional prohibitions  


 against double jeopardy.  

         28     Id.  See also Evans v. Michigan , 133 S. Ct. 1069, 1081 n.9 (2013) ("If a court grants      

 a motion to acquit after the jury has convicted, there is no double jeopardy barrier to an                                                                                         

 appeal  by   the  government  from   the  court's  acquittal,  because  reversal  would  result   in  

 reinstatement of the jury verdict of guilt, not a new trial.") (citing                                                                                   United States v. Wilson,  

 420 U.S. 332 (1975)).  

         29     Lindsay , 520 A.2d at 1063 ("This is not necessarily to say that a set aside, once                                                                                                    

 made,   can   be   vacated   under   any   and   all  circumstances   without   implicating   double  

jeopardy concerns; [o]n the facts here, however, the set aside can have no more protected                                                                                                  

 status than the erroneous order of early discharge upon which it depends."                                                                                                         ).  

         30      See, e.g.,  Newton v. United States, 613 A.2d 332, 335 (D.C. 1992); Pestana v. State,  

 762 S.E.2d 178, 181-82 (Ga. App. 2014); People v. Brock, 2007 WL 2275628, at *1-2 (Mich.   

 App. Aug. 9, 2007) (unpublished); People v. Mueller, 2000 WL 33519527, at *1 (Mich. App.  

 Apr. 21, 2000) (unpublished).  

         31      See Shagloak v. State, 582 P.2d 1034, 1037-38 (Alaska 1978).   

                                                                                                  -  10 -                                                                                            2526

----------------------- Page 11-----------------------

           Starkey's due process arguments       

                      Starkey   separately   contends   that   the   court's   actions   in   reinstating   his  

probation   violated   due   process,   relying   primarily   on   the   Alaska   Supreme   Court's  


decision in       Doe v. State, Dept. of Public Safety                     .      

                     But Doe is inapposite to Starkey's case. In Doe, the Alaska Supreme Court  


held that it would violate due process to impose sex offender registration requirements  


on a defendant whose sex offense conviction had been validly set aside prior to the  


legislature's enactment of these requirements.33  


                                                                                Whether Doe's conviction had been  


validly set aside was not at issue in Doe . Nor was there any dispute that the sex offender  


registration requirements represented additional burdens on the defendant that had not  



been part of his original criminal judgment. 


                     Here, in contrast, the underlying validity of the set-aside order is directly  


at issue.  Moreover, unlike the defendant in Doe, Starkey does not face any additional  


burdens other than the burdens previously imposed as part of his original suspended  


imposition of sentence.  Starkey's reliance on Doe is therefore misplaced.  


                      Starkey also argues that due process has been violated in this case because  


(according to Starkey) the State waived its right to challenge the erroneous order by  


failing to timely object to the order when it was initially issued.  


                     We agree that there may be circumstances where principles of equity and  


fundamental fairness preclude a court from correcting an earlier erroneous order -  


cases, for example, where there has been inexcusable neglect on the part of the State in  


bringing the mistake to the court's attention and a showing of reasonable detrimental  

     32    92 P.3d 398 (Alaska 2004).  

     33    See id. at 399, 411-12.  

     34    See id. at 411.  

                                                                 -  11 -                                                           2526

----------------------- Page 12-----------------------

reliance on the part of the defendant.  But, given the record currently before us, we do                                                                                                                                                                                                                                                                                                                                                                                               

not find those circumstances here.                                                                                                                                                                                     The delay in this case was less than a month, and                                                                                                                                                                                                                                                   

 Starkey has not shown (or even argued) any reasonable detrimental reliance on the                                                                                                                                                                                                                                                                                                                                                                                                                                           

 court's erroneous order.                                                                                     

                                                                                  Accordingly, we find no due process violation based on the State's failure                                                                                                                                                                                                                                                                                                                                              

to timely object to the erroneous order.                                                                                                                                                                  

                                                                                  We are nevertheless troubled by the allegations in the State's petition to                                                                                                                                                                                                                                                                                                                                                                          

revoke probation, which rely primarily on conduct that is alleged to have occurred                                                                                                                                                                                                                                                                                                                                                                                                                                   after  

the court issued its erroneous order and                                                                                                                                                                                                        before  the State drew the court's attention to its                                                                                                                                                                                                                                 


                                                                                  The petition alleges that Starkey violated his probation by (1) failing to                                                                                                                                                                                                                                                                                                                                                                         

report to his probation officer from "March to September 2009;" and (2) by committing                                                                                                                                                                                                                                                                                                                                                                                       

 a misdemeanor assault on September 11, 2009.                                                                                                                                                                                                                                                            But the record is clear that Starkey's                                                                                                                                        

probation remained stayed from March to July 9, 2009 under Appellate Rule 206(a)(3).                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

 The record is also clear that the erroneous order was distributed to the parties in early                                                                                                                                                                                                                                                                                                                                                                                                                         

August 2009 and there was no objection to the order as erroneous until after September                                                                                                                                                                                                                                                                                                                                                                                           

  11, 2009 (when Starkey was arrested on the alleged misdemeanor assault).                                                                                                                                                                                                                                                                                                                                             

                                                                                  At oral argument, the State acknowledged that it would violate due process                                                                                                                                                                                                                                                                                                                                        

to revoke a defendant's probation for failing to report to his probation officer when there                                                                                                                                                                                                                                                                                                                                                                                                                         

was no duty to report because the probation was either stayed as a matter of law or                                                                                                                                                                                                                                                                                                                                                                                                                                                

because the probation appeared to have been terminated by court order.                                                                                                                                                                                                                                                                                                                                                                                  The State also                                                   

 conceded   that   a   defendant   must   receive   clear   notice   of   their   duty   to   report,  and   it  

 acknowledged that it did not know what notice, if any, Starkey had received.                                                                                                                                                                                                                                                                                                                                                                                                            35  

                     35                  See, e.g., Marunich v. State , 151 P.3d 510, 522 (Alaska App. 2006) (probationers have  

 a due process right to reasonable notice of their probation and their probation conditions).  

                                                                                                                                                                                                                                                        -  12 -                                                                                                                                                                                                                                                    2526

----------------------- Page 13-----------------------

                    We  also  question  the  fundamental  fairness  of  revoking  a  defendant's  


probation for conduct - even arguably criminal conduct - that occurred during the  


timeperiod thatthedefendantreasonably believed that his probationhad been terminated  


by court order.  


                    We therefore conclude that there are due process considerations that will  


need to be litigated by the parties should the State's petition to revoke probation continue  


to move forward. But we also conclude that it would be premature for us to resolve these  


issues in this forum given the lack of clarity regarding how this case will next proceed  


and given the fact that the superior court is in the better position to determine the relevant  


facts and the underlying equities at issue here.  



                    The  superior  court's  decision  to  vacate  its  prior  order  erroneously  


discharging Starkey fromprobation and settingasidehis convictionis AFFIRMED. This  


case is REMANDED to the superior court for further proceedings on the State's petition  


to revoke probation, as appropriate.  We do not retain jurisdiction.  


                                                              -  13 -                                                       2526

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