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

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


                    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@  

                                           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


                                                            v.                                                                                                             O  P  I  N  I  O  N  


                                                                                                                                                                               on Rehearing   

STATE OF ALASKA,                

                                                                                                                                                      No. 2541 - February 17, 2017                                               


                                        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  



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).  



                    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).                                                                                 


                   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  




                             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  



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

 1218 (Alaska App. 2009).                              



               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  


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  



            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                                                                 


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  



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  




                         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  



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



            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                                                


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.  



                          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.  



             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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