Opinion
Court of Appeals No. A-12694 Court of Appeals No. A-12703 Court of Appeals No. A-12704 No. 6734
11-21-2018
TERRANCE MARCEL DAVIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Mary Fleming Burnell, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Betsy Bull, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court Nos. 3AN-03-11503 CR, 3AN-03-3686 CR, & 3AN-08-4019 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge. Appearances: Mary Fleming Burnell, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Betsy Bull, Assistant District Attorney, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Terrance Marcel Davis appeals as excessive his composite sentence for violations of the conditions of his probation in three cases. Because the sentencing judge failed to create a sufficient record to allow for meaningful appellate review of Davis's sentence, we vacate the sentence and remand this case for resentencing.
Background facts and proceedings
In three separate cases, Davis was convicted of fourth-degree misconduct involving a controlled substance, second-degree assault, and fraudulently obtaining an access device. In January 2015, Davis was on felony probation release in each of these cases, as well as in a separate federal case. That month, the police stopped a car in which he was a passenger, and they discovered a stolen handgun at his feet. The State referred the case to federal authorities, and Davis subsequently pleaded guilty to the federal crime of felon in possession of a firearm. He was sentenced to a term of imprisonment of 63 months for that crime, and to an additional 18 consecutive months for violating the terms of his federal probation.
Former AS 11.71.040(a)(3)(A) (2004), former AS 11.41.210(a)(1) (2004), and former AS 11.46.290(a)(3) (2004), respectively.
18 U.S.C. §§ 922(g)(1) and 924(a)(2).
This did not end the matter, because the State had filed petitions to revoke Davis's probation in each of the three state cases. At a joint adjudication hearing for each of these three cases, Davis conceded that he had violated two conditions of probation governing firearms, and he admitted that he had violated a third condition of his probation when he gave the arresting officers a false name.
At the disposition hearing, and in subsequent briefing, Davis's defense attorney argued that there was no evidence to support five other allegations of misconduct contained in the letter update to the presentence report. These allegations — which included allegations that Davis had struck a man on the head with a gun, and that Davis was a drug dealer — figured prominently in the prosecutor's discussion of an appropriate sentence, both during the disposition hearing and in a later-filed supplemental sentencing memorandum. The prosecutor argued that these uncharged crimes demonstrated that Davis deserved a severe sentence — 10 years (the entire remainder of Davis's suspended jail time in the three cases).
At the end of the disposition hearing, Superior Court Judge Michael D. Corey took the matter under advisement. On August 2, 2016, the judge issued a written disposition order in which he imposed a composite sentence of 4 years' imprisonment for Davis's 2015 offenses of possessing a weapon and giving a false name. Because Davis had already received an 81-month federal sentence based on this same incident, Davis's new 4-year state sentence brought his total sentence to 10 and 3/4 years.
In his written disposition order, the judge listed the Chaney criteria in the order that he found them to be relevant to each of the three petitions to revoke probation. But apart from a brief statement that Davis's continued association with firearms was troubling, the judge did not discuss Davis's new criminal conduct, its seriousness, Davis's background, or his conduct on probation — all matters that a sentencing judge is required to consider in a probation revocation sentencing.
See Jeter v. State, 393 P.3d 438, 440-41 (Alaska App. 2017).
Further, in his disposition order, the judge did not rule on Davis's request to strike the five disputed factual allegations from the updated presentence report. Several months later, after Davis requested a ruling on the five disputed factual allegations, the judge ordered all five of them stricken from the presentence report. But the judge declared, without explanation, that even without those allegations, the record still supported the sentence that the judge had imposed. The judge also stated, again in a conclusory fashion, that Davis's probation revocation sentences were not "predicated upon" those five allegations. But the judge did not reveal whether he had affirmatively decided to strike the five disputed allegations before he arrived at his sentence, and, if so, why he did not disclose this in his disposition order.
Why we remand Davis's case to the superior court
Because the judge did not explain his reasons for imposing the sentence that he did, we are unable to review the sentence on the present record. It is insufficient for the trial judge to simply recite the sentencing factors set forth in State v. Chaney and AS 12.55.005 in list form without further discussion, as the judge did here. Indeed, in his disposition order the judge did not reveal whether or not he took Davis's 81-month federal sentence into account at all when he imposed a consecutive 4-year sentence, largely for the same conduct. When a sentence is consecutive to a sentence imposed by a court of another jurisdiction, the judge must consider the cumulative impact of the combined sentences. Here, the record is silent as to whether the judge took this into account.
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
Neal v. State, 628 P.2d 19, 21 (Alaska 1981).
In addition, we are troubled by the judge's failure to resolve Davis's challenge to the five allegations in the presentence report prior to the imposition of the sentence. The judge prefaced his disposition order by stating, "Having fully considered all attendant issues and incorporating the entirety of the record by reference, [the court] hereby finds as follows ... ". Yet in his subsequent order striking the five allegations from the updated presentence report, the judge stated that Davis's sentence was "not predicated upon the five allegations challenged by the Defendant," a seeming contradiction. The judge should be mindful in the future to follow the procedures set forth in Alaska Criminal Rule 32.1(f) for adjudicating challenges to the factual allegations in a presentence report.
See Smith v. State, 369 P.3d 555, 557-58 (Alaska App. 2016) (addressing the requirements of Alaska Criminal Rule 32.1(f)).
Moreover, by sentencing Davis in a written disposition order, the judge violated Alaska Criminal Rule 38(a). Under this rule, a felony defendant must be present when the court imposes sentence for a violation of probation. Although Davis was present for the portion of the disposition hearing during which the parties presented their sentencing arguments, the judge took the matter under advisement. He did not impose Davis's sentence until later, and he did so in a written order rather than announcing the sentence in open court.
Under Criminal Rule 38(a), the judge was required to reconvene court and impose sentence in Davis's presence. Davis does not raise this as a claim of error. But because we are remanding Davis's case to the superior court, it is appropriate to remind the judge of this rule.
Between the time of Davis's disposition hearing and the judge's imposition of Davis's sentence in the written order, the Alaska Legislature passed SLA 2016, chapter 36 — popularly known as "Senate Bill 91." Among many other things, this legislation reduced Davis's offense (fourth-degree controlled substance misconduct) from a class C felony to a class A misdemeanor, with a reduced sentencing range of 0 to 30 days' imprisonment.
Davis argues that, because of this change in the law, his sentence of 6 months' imprisonment is excessive. The sentencing judge did not address this matter in his written disposition order, and we are unable to determine whether the judge considered the recent change in the law when he arrived at Davis's sentence. However, Davis will have an opportunity to raise this issue when his case returns to the superior court.
See State v. Stafford, 129 P.3d 927, 932-33 (Alaska App. 2006) (holding that when the legislature reduces the penalty for a crime, a defendant who committed this crime before the legislature amended the penalty provision, but who is being sentenced after the amendment, should have the benefit of the reduced penalty unless the legislature intended a contrary result).
Finally, Davis suggests that the sentencing judge violated the Neal-Mutschler rule. Under this rule, when a judge sentences a defendant for two or more offenses, the judge should not impose a composite sentence that exceeds the maximum sentence for the defendant's single most serious crime unless the judge affirmatively finds that such a sentence is necessary to accomplish the goals of sentencing.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981), as modified in Phelps v. State, 236 P.3d 381, 393 (Alaska App. 2010).
This Court has issued unpublished opinions in which we assumed, arguendo, that the Neal-Mutschler rule applied to probation revocation sentences. However, we have never explicitly held that probation revocation sentences are governed by the Neal-Mutschler rule. Because we are remanding Davis's case to the superior court for resentencing, Davis will have the opportunity to argue this point, and the judge will have an opportunity to make a Neal-Mutschler finding if he deems it appropriate.
See Gottschalk v. State, unpublished, 2007 WL 1519633 at *2 (Alaska App. May 23, 2007); Rose v. State, unpublished, 2007 WL 465218 at *2 (Alaska App. Jan. 24, 2007).
See Weaver v. Anchorage, unpublished, 2009 WL 1099424 at *1 (Alaska App. Apr. 22, 2009). --------
Conclusion
We VACATE Davis's sentence, and we remand this case to the superior court for resentencing consistent with this opinion.
The superior court shall resentence Davis within 90 days after the issuance of this opinion. If, after Davis is resentenced, he no longer wishes to appeal his sentence, he shall notify this Court within 30 days, and we will close this case. If, on the other hand, Davis wishes to pursue a renewed sentence appeal, he shall file a supplemental brief within 30 days of his resentencing. The State may file a responsive brief within 30 days thereafter. After this Court receives these supplemental briefs, we will resume our consideration of Davis's case.
We retain jurisdiction of this case for these purposes.