Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES E. MARKER, )
) Court of Appeals No. A-3245
Appellant, ) Trial Court No. 3AN-S87-8536CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1212 - April 3, 1992]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Jill De La Hunt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Charles E. Marker was convicted, based upon his plea of
no contest, of robbery in the first degree. AS 11.41.500(a)(1).
This conviction was based upon an incident that occurred
November 2, 1987. We set out the facts of the case in a previous
decision in Marker v. State, Memorandum Opinion and Judgment No.
1715 (Alaska App., December 21, 1988), as follows:
On November 2, 1987, Marker and Alex
Headrick met M.S. in a bar. M.S. agreed to
have a drink with Marker and Headrick. The
three of them left the bar and walked until
they came to a baseball field. Headrick and
Marker told M.S. that they were police
officers and accused M.S. of dealing cocaine.
Headrick showed M.S. a badge. Headrick then
forced M.S. to lie down on his coat and he
sexually assaulted her. Marker fondled her
breasts. Sometime during the sexual assault
one of the defendants displayed a knife,
although M.S. could not remember whether it
was Marker. Apparently, the defendants took
or attempted to take some money from M.S.
during the assault. M.S. was handcuffed by
her assailants during some of the period of
time that she was held. Following the sexual
assault, the defendants removed M.S.'s hand-
cuffs. When she saw a car coming down the
street, M.S. ran out to the street in an
attempt to get help. She was struck by the
car. The driver of the car stopped and M.S.
ran up to the driver. Headrick showed a
badge to the driver, attempting to convince
the driver that he and Marker were police
officers. The driver did not believe
Headrick and took M.S. to the Anchorage
Police Department where she reported the
rape.
At the time of sentencing, Marker had two prior felony
convictions for robbery in the second degree. One
robbery conviction was on appeal; Marker was on parole
for the other robbery offense at the time of the 1987
robbery offense. Superior Court Judge Karl S.
Johnstone found that Marker was a third felony
offender. He found that several aggravating factors
applied to the sentencing in this case: that a person,
other than an accomplice, sustained physical injury as
a direct result of Marker's conduct; that Marker knew
that the victim of the offense was particularly
vulnerable or incapable of resistance; that Marker's
prior criminal history included conduct involving
aggravated or repeated instances of assaultive
behavior; and that Marker was on parole for another
felony conviction at the time of this offense. AS
12.55.155(c)(1), (5), (8), (20). As a third felony
offender convicted of a class A felony, Marker was
subject to a presumptive sentence of fifteen years. AS
12.55.125(c)(4). Judge Johnstone imposed the fifteen-
year presumptive term and sentenced Marker to five
additional years based on the aggravating factors.
Judge Johnstone therefore imposed the maximum sentence
for a class A felony of twenty years of imprisonment.
Judge Johnstone concluded that Marker was a worst
offender for this class of offense and that he deserved
a maximum sentence. Judge Johnstone made the following
statement:
I believe that the enhancement of the
aggravating factor should be maximum. . . .
I would conclude that if the prior felony
conviction gets reversed and you're sent back
I see no reason not to enhance the
aggravating factors for this case up to the
maximum of ten years instead of five years.
So, I'm giving you notice right now that if
it comes back based on what I've seen so far
I would enhance the aggravating factor ten
years instead of five years.
Marker appealed his sentence to this court. We
affirmed Marker's sentence in Memorandum Opinion and
Judgment No. 1715 (Alaska App., December 21, 1988). In
affirming Marker's sentence we stated:
Marker has been involved in a series of
offenses since he was institutionalized as a
juvenile in 1976. The present offense is his
third felony conviction. He was on parole
for a former felony offense at the time of
this offense. His present offense is
serious; Marker could have easily been
convicted of sexual assault under the present
facts. Judge Johnstone could properly
conclude that Marker was a worst offender in
his class and that Marker deserved a maximum
sentence. We con-clude that the sentence is
not clearly mistaken.
In 1989 this court reversed one of Marker's prior
robbery convictions. Marker was convicted of this
offense in 1982. Marker v. State, Memorandum Opinion
and Judgment No. 1719 (Alaska App., January 11, 1989);
Marker v. State, Memorandum Opinion and Judgment No.
1559 (Alaska App., February 10, 1988). In reversing
Marker's robbery conviction, we concluded that, on
remand, the state could retry Marker on the robbery
charge or, in the alternative, the state could request
the entry of a judgment on assault in the fourth
degree. Marker v. State, Memorandum Opinion and
Judgment No. 1719 at 4 n.1. The state opted to request
the entry of judgment on assault in the fourth degree,
a misdemeanor, rather than retry the case. On the
misdemeanor, the trial court entered a maximum one-year
sentence. However, by this time, Marker had already
served the entire four-year presumptive sentence on the
original 1982 robbery conviction.
Marker moved to vacate the sentence on the 1987 offense
under Alaska Criminal Rule 35(a) on the grounds that he
was not a third felony offender because one of his
prior felony convictions had been reduced to a
misdemeanor. A second sentencing hearing was held on
June 13, 1989. Marker argued that because his 1982
conviction had been reversed, he was only a second
felony offender and had not committed the current
charge while on parole. Marker also asked the court to
consider his "excellent" institutional behavior; the
trial court stated this was not a factor at
resentencing. Marker also argued that the excess time
he served on the 1982 conviction that was reversed on
appeal should be credited toward his current first-
degree robbery sentence. On resentencing, Judge
Johnstone reiterated his previous position justifying
the maximum sentence and stated that he would "enhance
[the sentence] by ten additional years instead of five
and the sentence would essentially remain the same."
The trial court denied the motion to credit the excess
time that Marker served on the 1982 offense because
"[t]he credit sought is not for time served in the
present case." Thus, Judge Johnstone imposed a
sentence of ten years (the presumptive sentence for a
second felony offender) plus ten years (based on
aggravating factors) for a total sentence of twenty
years.
Marker first contends that Judge Johnstone erred in not
crediting him for the excess time he served on his 1982
robbery offense toward his 1987 robbery offense.
Marker points out that he served his entire four-year
presumptive sentence for his original 1982 robbery
conviction and that ultimately he was sentenced to one
year on the assault conviction. He argues that he
should be given credit for the excess time he served on
the 1982 conviction.
Alaska Statute 12.55.025(c) provides in relevant part:
A defendant shall receive credit for time spent in custody
pending trial, sentencing, or appeal, if the
detention was in connection with the offense for
which sentence was imposed.
The only connection between the 1982 offense and 1987
conviction that Marker has shown is that the 1987
offense may have been committed while Marker was on
parole on the 1982 offense1 and that the state
originally used the 1982 conviction as a prior felony
offense to enhance Marker's sentence on the 1987
offense. If this is the only connection, we fail to
see that Marker's detention "was in connection with the
offense for which sentence was imposed."
The cases cited by Marker are inapposite. They all
stand for the proposition that time must be credited
for time served on the same offense, and most concern
reconviction or resentencing. See State v. Nelson, 36
So. 2d 427 (Fla. 1948); Lewis v. Commonwealth, 108
N.E.2d 922 (Mass. 1952); Ex parte Wall, 47 N.W.2d 682
(Mich. 1951); Ex parte Cowan, 279 N.W. 854 (Mich.
1938); People v. Ancksornby, 203 N.W. 864 (Mich. 1925);
State v. Mehlhorn, 82 P.2d 158 (Wash. 1938); see also
R.D. Hursh, Annotation, Right to Credit for Time Served
Under Erroneous or Void Sentence or Invalid Judgment of
Conviction Necessitating New Trial, 35 A.L.R.2d 1283
(1954).
The Oklahoma Court of Criminal Appeals addressed an
argument similar to that made by Marker and found it
wanting. See Dorrough v. Page, 450 P.2d 520 (Okla.
Crim. App. 1969). Dorrough was sentenced to a two-year
term on February 17, 1967, for burglary in the second
degree. Id. at 520. He had been previously convicted
of grand larceny and began serving a ten-year term on
November 17, 1966. Id. at 521. The grand larceny
conviction was reversed. Id. Dorrough argued "that he
is entitled to credit for time served on the void
[grand larceny] sentence to satisfy the two year
[burglary] sentence and that he would have satisfied
the two year [burglary] sentence on March 24, 1968."
Id. The court looked at the Oklahoma credit-for-time-
served statute and found that a prisoner was not
entitled to credit for time served under a prior
unrelated sentence that was later set aside. Id. The
court found its holding supported by case law in
Florida, New Mexico, and New York, and by scholarly
commentary. Id.
Under the Alaska statute, the sentencing court shall
credit time served "in connection" with the same
offense. In 1969, the Oklahoma statute, in pertinent
part, provided: "All inmates serving their first term
with a good conduct record and who have no infraction
of the rules and regulations of the penal institution
shall be allowed as a deduction from his term of
imprisonment the jail term, if any, served prior to
being received at the penal institution." Okla. Stat.
tit. 57, 138 (1968)(amended 1973). The Oklahoma
court apparently interpreted "the jail term . . .
served prior to being received at the penal
institution" to mean time served related to the same
offense. Dorrough, 450 P.2d at 521. The Alaska
statute more clearly indicates it was intended to reach
the same result.
The state relies heavily on Davis v. U.S. Attorney
General, 432 F.2d 777 (5th Cir. 1970). Davis seems
similar to the case at bar. Davis was convicted and
served time on a twelve-year composite sentence. Id.
at 778. Davis, like Marker, was placed on mandatory
release and committed an ensuing crime for which he was
convicted and sentenced to a fourteen-year term of
imprison-ment. Id. The twelve-year term was
subsequently vacated; Davis pled guilty to the same
charges and was sentenced to terms of ten years and two
years to run concurrent with the unrelated fourteen-
year term. He was given credit toward the two-year and
ten-year terms for time served pursuant to the twelve-
year composite term. Id. Davis argued that he "should
also be credited toward the fourteen-year . . .
sentence he is now serving because all sentences were
made to run concurrently." Id.
While not relying on a credit-for-time-served statute,
the court ruled against Davis, stating:
The basis of appellant's contention is that while
serving time under an invalid sentence he managed
to earn credit against a future unrelated sentence
for a crime not yet perpetrated. We cannot
accept such a proposition. An allowance for
prison time previously served under a void
commitment does not reduce sentences imposed as a
result of new and different crimes. The [fourteen-
year] sentence therefore remains undisturbed since
it was incurred for the commission of an offense
unrelated to the original crime and not even in
existence when appellant earned the credit in the
Atlanta penitentiary.
Id. (citations omitted). The state cites other cases in accord
with Davis. See Johnson v. Henderson, 455 F.2d 983
(5th Cir. 1972)(sentence imposed after parole
revocation not sufficiently related to reversed theft
conviction on which defendant had been paroled);
Meadows v. Blackwell, 433 F.2d 1298 (5th Cir.
1970)(prisoners may not "bank" time).
Also analogous to Marker's situation is Henley v.
Johnson, 885 F.2d 790 (11th Cir. 1989). Henley rejected
the petitioner's claim that he was entitled to have
time served on a reversed robbery conviction credited
toward a sentence for an escape from custody on the
robbery charge. Id. at 793. The court stated:
When a conviction is set aside and the prisoner is
subsequently retried and convicted of the same
offense, it is well-established that under the
Double Jeopardy Clause, the time served under the
invalid conviction must be credited toward the new
sentence. Because Henley's convictions for escape
do not arise from the same events which led to his
robbery conviction, the State of Alabama's failure
to apply the time served pursuant to the invalid
robbery conviction against the escape sentence
does not violate the constitutional guarantee
against multiple punishments for the same offense.
Id. (emphasis added) (citations omitted). The court went on to
note that in the absence of a constitutional mandate,
allowing "a `line of credit' against sentences for
future crimes" would be inauspicious social policy as
it might "provide a sense of immunity and an incentive
to engage in criminal conduct." Id. at 793 n.5
(listing cases similarly rejecting "time banking" on
policy grounds).
The state concedes that there is authority for the
proposition that "even if the offenses are technically
unrelated, credit is allowed on a subsequent sentence
for time served on invalid sentence [sic] when service
of that previous term delayed commencement of the
subsequent sentence." Sancinella v. Henderson, 380 F.
Supp. 1393, 1395 (N.D. Ga.), aff'd, 502 F.2d 784 (5th
Cir. 1974); see also Johnson v. Henderson, 455 F.2d at
984. Here, however, the record does not show that
Marker's incarceration for the parole violation for the
1980 and 1982 offenses delayed commencement of his 1987
sentence.
In conclusion, it does not appear that either AS
12.55.025(c) or the state or federal constitutions
required Judge Johnstone to give Marker credit for the
excess time Marker served on the 1982 offense toward
the service of the 1987 sentence.
Marker next contends that his sentence must be vacated
because of judicial vindictiveness. He claims that he
has established a prima facie case of vindictiveness by
showing that Judge Johnstone imposed a twenty-year
sentence on him as a second felony offender, the same
sentence Judge Johnstone had imposed on him as a third
felony offender.
Under federal constitutional law, the presumption of
judicial vindictiveness arises "`only in cases in which
a reasonable likelihood of vindictiveness exists.'
Once this presumption blossoms, the prosecution must
proffer evidence to overcome it; elsewise,
vindictiveness is deemed established, and the due
process clause requires invalidation of the challenged
action." United States v. Pimienta-Redondo, 874 F.2d
9, 12-13 (1st Cir.) (citations omitted), cert. denied,
493 U.S. 890 (1989), cited in Allain v. State, 810 P.2d
1019, 1021 (Alaska App. 1991).
The federal courts have held that "on resentencing, if
it is reasonably clear that the judge reshaped [the
sentence] merely as a means of bringing original
sentencing intentions to fruition after some new
development had intervened, a need for employing the
[North Carolina v.] Pearce [,395 U.S. 711 (1969)]
presumption never arises." Pimienta-Redondo, 874 F.2d
at 13; accord Allain, 810 P.2d at 1021-22.
The Supreme Court of Alaska has provided a greater
level of protection from judicial vindictiveness under
the Alaska Constitution. For instance, in Shagloak v.
State, 597 P.2d 142, 145 (Alaska 1979), the supreme
court held that when the defendant had once been
sentenced for a crime, and that sentence was later
vacated, the defendant could not then later receive a
more severe sentence than that originally received.
However, Shagloak and other similar Alaska cases hold
that a showing of possible vindictiveness requires that
the defendant receive a sentence more severe than the
one successfully vacated on appeal or otherwise. Here,
Judge Johnstone on resentencing did not impose a more
severe penalty. It is true, as Marker points out, that
Judge Johnstone increased the portion of the sentence
that was based upon the aggravating factors. This was
because the portion of the sentence based upon the
presumptive term had been reduced. An analysis of
Judge Johnstone's original sentencing remarks and his
later sentencing remarks clearly shows his intent to
impose a maximum twenty-year sentence. Judge Johnstone
found Marker to be a worst offender who committed a
particularly atrocious act and had a history suggesting
the need for incarceration to protect the public.
Judge Johnstone made it clear at the original
sentencing that, regardless of whether the 1982
conviction was valid, Marker should receive the maximum
twenty-year sentence. At resentencing, Judge Johnstone
found that the presumptive term must be decreased and
that the aggravating factor that Marker was on parole
or probation at the time of the commission of the
current offense was no longer supported by clear and
convincing evidence. Judge Johnstone, however, ruled:
I believe that the defendant is a worst offender still based
on the earlier findings I made. All the other
aggravating factors and all my comments are
adopted at this time that I made earlier. The
fact that the case was reversed, the defendant did
plead to a conviction of a misdemeanor assault. I
find that the facts established on the basis of
the misdemeanor assault were established and that
the conduct was very serious, most serious for the
misdemeanor assault. That it's verified informa-
tion. That it goes to the defendant's prospects
for rehabilitation and it goes to my finding he's
a worst offender. I see no reason to change my
earlier findings in this case based on the record
I have before me. A review of the earlier file
and the presentence report, all the information of
the department of health and social services, the
expert's review of Mr. Marker all leads me to the
same conclusions at this time. However, I will
have to impose a different sentence because the
defendant is now subject a ten year presumptive
sentence with ten years aggravated on top of it.
Judge Johnstone's remarks on resentencing show that he fairly
reevaluated the defendant on remand, see Pimienta-
Redondo, 874 F.2d at 14, and simply used a different
way to implement the original sentencing plan, id. at
14-15 & n.6; cf. Allain, 810 P.2d at 1022; Kuvaas v.
State, 717 P.2d 855, 857 (Alaska App. 1986). Marker's
vindictiveness claims are without merit.
Marker next contends that his sentence was excessive.
We previously considered and affirmed Marker's twenty-
year sentence in Marker v. State, Memorandum Opinion
and Judgment No. 1715 (Alaska App., December 21, 1988).
The only thing that has changed is that Marker at the
time of our original decision was a third felony
offender. At this time, Marker is subject to
sentencing as a second felony offender. This change is
not insignificant. As a second felony offender, Marker
faced a ten-year presumptive sentence. As a third
felony offender he faced a fifteen-year presumptive
sentence. In passing the revised code, the legislature
made it clear that, other things being equal, courts
were to treat third felony offenders more severely than
second felony offenders. Marker could certainly argue
that, as a second felony offender, his sentence should
not exceed the presumptive sentence for a third felony
offender unless Judge Johnstone found his case
exceptional. See Austin v. State, 627 P.2d 657 (Alaska
App. 1981). However, it is clear from Judge
Johnstone's sentencing remarks that he found Marker's
case to be exceptional. We have previously quoted our
summary of Marker's prior and present offenses and our
approval of Judge Johnstone's findings that Marker was
a worst offender and deserved a maximum sentence. Upon
further review, and fully recognizing that Marker is
now subject to sentence as a second felony offender,
and not as a third felony offender, we believe that
Judge Johnstone was not clearly mistaken in imposing a
sentence of twenty years of imprisonment.
The sentence is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The state notes that the record is unclear
whether, at the time of the 1987 offense, Marker was on
parole for his 1982 robbery conviction or for his 1980
robbery conviction.
