Opinion
Court of Appeals No. A-10699/700 Trial Court No. 4BE-01-1393 CR Trial Court No. 4BE-03-1287 CR No. 5849
05-30-2012
FRANCIS XAVIER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Attorney at Law, Sechelt, British Columbia, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Bethel, Marvin Hamilton, Judge.
Appearances: David K. Allen, Attorney at Law, Sechelt, British Columbia, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Francis Xavier was charged and convicted of sexual abuse of a minor in the second degree for conduct that took place while he was still on probation for other criminal offenses. The State filed petitions to revoke Xavier's probation based on his new conviction. Xavier argues that because the State filed the petitions to revoke after his term of probation had ended, the State had no authority to revoke his probation.
In Galaktionoff v. State,we held that trial courts have jurisdiction to revoke a defendant's probation at any time during the maximum period of probation provided by statute, which is ten years, as long as the revocation is based upon conduct that took place during the defendant's actual period of probation. Xavier argues that Galaktionoff was incorrectly decided and asks us to overrule the case. For the reasons explained below, we decline to overrule Galaktionoff.
733 P.2d 628, 629-30 (Alaska App. 1987).
Facts and procedural history
Francis Xavier was convicted of assault in the third and fourth degree, misconduct involving a weapon in the fourth degree, and violating his conditions of release. In a separate case, Xavier was convicted of attempted sexual abuse of a minor in the third degree.
AS 11.41.220(a)(1)(A).
AS 11.41.230(a)(1), (3).
AS 11.61.210(a)(1).
AS 11.56.757(a).
AS 11.41.438(a); AS 11.31.100(a).
Xavier was sentenced in both cases on September 22, 2004. In the first case, Xavier was sentenced to three years and three months of imprisonment, two years of which were suspended. He was placed on probation for five years. In the second case, he was sentenced to one year of imprisonment, with six months suspended, and placed on probation for three years. The terms of probation were imposed concurrently.
While Xavier was still on probation for these crimes, he was charged with sexual abuse of a minor in the second degree. He was convicted of that crime on December 16, 2008. Based upon that conviction, the State filed petitions to revoke Xavier's probation in his prior cases. Although it is unclear from the record when Xavier's probation actually ended, for purposes of this decision, we assume that the State's petitions to revoke were filed after the end of Xavier's actual terms of probation.
Superior Court Judge Marvin Hamilton held an adjudication hearing on the petitions in January 2010. At that hearing, Xavier argued that the petitions to revoke were filed after the expiration of his probation and were thus untimely. In response, the prosecutor pointed out that Galaktionoff held that trial courts retain the authority to revoke a defendant's probation during the maximum probation period authorized by AS 12.55.090 (ten years), as long as the State's petition is based on conduct committed during the defendant's actual term of probation. Xavier responded without elaboration that Galaktionoff had been wrongly decided.
Judge Hamilton concluded that, because the petitions to revoke probation were filed within the ten-year probation period authorized by statute, he was bound by Galaktionoff. He granted the State's petitions to revoke Xavier's probation and imposed two years and six months of Xavier's previously suspended time.
Why we conclude that we will not overrule Galaktionoff
On appeal, Xavier argues that Galaktionoff should be overruled because it is contrary to a defendant's reasonable expectation that he will not be subject to having his probation revoked after he has completed his actual term of probation.
The doctrine of stare decisis requires us to follow the rule of law set out in our prior cases unless we are convinced: (1) "that the rule was originally erroneous or is no longer sound because of changed conditions," and (2) "that more good than harm would result from a departure from precedent."
State v. Carlin, 249 P.3d 752, 757-58 (Alaska 2011) (quoting Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 1993)).
Galaktionoff is based on firm legal ground. In Galaktionoff, we pointed to the clear language of AS 33.05.070, which provides in relevant part that "[a]t any time within the probation period, or within the maximum probation period permitted [by statute],the court ... may issue a warrant for the probationer's arrest for violation of probation occurring during the probation period." The plain language of the statute thus clearly authorizes a court to revoke a defendant's probation for a violation that occurred during the period of probation as long as the revocation takes place during the maximum period permitted by statute, which is now ten years.
733 P.2d at 629-30 (emphasis in original).
In reaching our decision in Galaktionoff, we pointed out that the Alaska Statutes, and in particular AS 33.05.070, were "virtually identical" to the corresponding federal statutes, and that federal case law had uniformly held that "[a] court can issue a warrant and revoke an individual's probation at any time during the maximum ... probationary period permitted by [the federal statute] so long as the acts justifying the revocation occur within a probationer's formal period of probation."
Id. at 630 (citations omitted).
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We accordingly conclude that the Galaktionoff decision rests on firm legal ground and that there is no basis to overrule that decision.
Conclusion
The judgment of the superior court is AFFIRMED.