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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILMA C. CHRISTENSEN, )
) Court of Appeals No. A-4410
Appellant, ) Trial Court No. 2NO-91-154 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1275 - January 8, 1993]
________________________________)
Appeal from the Superior Court, Second Judi
cial District, Nome, Charles R. Tunley,
Judge.
Appearances: Michael R. Smith, Anchorage,
for Appellant. John R. Vacek, District
Attorney, Nome, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Wilma C. Christensen pleaded no contest to felony
importation of alcoholic beverages into a dry community, AS 4.11.
496(b) and AS 4.16.200(e)(2). The superior court suspended
imposition of Christensen's sentence under AS 12.55.085 and
placed her on probation for 2 years. As one of the conditions of
her probation, Christensen served 45 days in jail. This appeal
concerns another condition of probation that the superior court
imposed.
At Christensen's sentencing, just after the court
announced the suspended imposition of sentence and the 45 days to
serve, the court added:
And I further order that [Christensen] will
take alcohol screening and follow the recom
mendations thereof. Substance abuse evalua
tion and follow their recommendations. And
if such would include some residential time,
so be it. There's an alcohol problem here,
as evidenced by [Christensen's prior] DWI and
evidenced by the probation record itself.
This type of condition of probation is authorized by AS 12.55.100
(a)(6). However, when imposing such a condition, the sentencing
court must specify the maximum length of residential treatment.
AS 12.55.100(c). The superior court failed to set a maximum
length for Christensen's residential treatment.
After completing her jail sentence, Christensen
reported for alcohol and substance abuse screening. The
evaluator recommended a 45-day course of residential treatment.
Christensen's probation officer directed her to complete this
residential treatment. Christensen's attorney objected,
asserting that the superior court had not obligated her to
participate in residential treatment.
Christensen filed a motion asking the court to clarify
its judgement. In this motion, Christensen took the position
that, if the court amended the judgement to include residential
treatment, this would illegally increase her sentence, violating
the constitutional guarantee against double jeopardy.
After reviewing the sentencing hearing, Superior Court
Judge Charles R. Tunley concluded that he had, in fact, ordered
Christensen to comply with any recommendations of the alcohol
rehabilitation program, including residential treatment. Judge
Tunley acknowledged that, through his own oversight,
Christensen's sentence had failed to include an element required
by AS 12.55.100(e) - the maximum term of residential treatment.
However, because Christensen's sentence lacked this essential
component, Judge Tunley concluded that Christensen's sentence had
not yet been meaningfully imposed - meaning it could be changed
without violating the double jeopardy clause. He therefore
modified Christensen's sentence by setting the maximum length of
residential treatment at 90 days.
Christensen now appeals Judge Tunley's decision,
arguing that the increase in her sentence violates the
constitutional guarantee against double jeopardy. We agree and
reverse.
When a defendant's sentence violates applicable sentenc
ing statutes, the sentence is illegal. Dunham v. Juneau, 790
P.2d 239, 240 (Alaska App. 1990). If a sentence is illegal, it
has not been "meaningfully imposed" for double jeopardy purposes.
Id. at 241. Thus, the illegal sentence can be corrected, even if
this means increasing the severity of the sentence. Dunham;
State v. LaPorte, 672 P.2d 466, 468-69 & n.6 (Alaska App. 1983);
C. Wright, Federal Practice and Procedure: Criminal (2nd ed.
1982), 582, Vol. 3, pp. 380-89. This court has, however,
recognized a corollary principle: that an illegal sentence can be
modified only to the extent necessary to correct the illegality.
Curtis v. State, 831 P.2d 359 (Alaska App. 1992); Love v. State,
799 P.2d 1343, 1346-47 (Alaska App. 1990); Joseph v. State, 712
P.2d 904, 906 (Alaska App. 1986).
Christensen argues that her sentence was, in fact,
complete when Judge Tunley first imposed it. She contends that
Judge Tunley's original sentencing remarks must be interpreted to
mean that he was sentencing her to a total of 45 days' loss of
liberty, either in jail or in residential treatment or a combina
tion of both. We disagree. Our review of the sentencing hearing
convinces us that Judge Tunley intended to have Christensen serve
45 days in jail and, in addition, to have her comply with the
recommendations of an alcohol and substance abuse evaluator,
including potential residential treatment. The flaw in Christen
sen's sentence was that, after Judge Tunley authorized her
participation in a residential treatment program, he neglected to
set an upper limit on the length of Christensen's residence in
such a program.
The State argues that Christensen's case is
conceptually analogous to the question presented in Figueroa v.
State, 689 P.2d 512 (Alaska App. 1984). Whenever a court imposes
a suspended term of imprisonment, the court must place the
defendant on probation for a set period of time (during which the
suspended jail term may be imposed if the defendant fails to
comply with the conditions of his or her release). AS 12.55.080.
In Figueroa, the court sentenced the defendant to 4 years'
imprisonment with 2 years suspended, but the court neglected to
specify the length of Figueroa's probation. When this oversight
was called to the court's attention, the court amended the
judgement to specify a two-year period of probation. 689 P.2d at
514.
This court upheld the superior court's action against
the defendant's claim that the modification of his sentence
violated the double jeopardy clause. The relevant portion of our
decision reads:
While the initial decision whether to suspend
a sentence of imprisonment is a discretionary
one, once all or part of a sentence is sus
pended, the statute makes probation
mandatory. Thus, Figueroa's ... sentence was
obviously incomplete when first pronounced,
and it was therefore not meaningfully
imposed. Correction of the original sentence
was permissible under these circumstances.
Figueroa, 689 P.2d at 514 (citations omitted).
While Figueroa is facially analogous to Christensen's
case, we must reach a different conclusion here. When, as in
Figueroa, a court imposes a sentence of imprisonment and then
suspends a portion of that prison term, the court must
necessarily place the defendant on probation and specify the
length of that probation. Until the length of probation is
fixed, the court's sentencing order lacks an essential part and
the suspended portion of the defendant's sentence remains incom
plete.
By contrast, in Christensen's case, the court's sentenc
ing order was complete in its three essentials (total length of
imprisonment, portion of this total to be suspended, and length
of the defendant's probation), and the conditions of probation
were set. The flaw lies in one of these conditions of probation.
Our previous cases have established the principle that an illegal
sentence should not be increased unless absolutely necessary to
correct the illegality. Under the circumstances of Christensen's
case, this principle militates in favor of curing the flaw, not
by making the condition of probation more onerous, but by
striking the flawed portion of that condition (here, the require
ment of residential treatment).
We recognize that Christensen received a relatively
lenient sentence for a felony. If Judge Tunley had indicated
when he originally sentenced Christensen that his decision to
sentence her to only 45 days' imprisonment was predicated on his
concurrent decision to require her to submit to residential
alcohol treatment, or if Judge Tunley had indicated in some other
fashion at the original sentencing that the requirement of
residential treatment was integral to the sentence, then we might
view this case differently. However, the sentencing record does
not demonstrate that the potential of residential treatment
played any such vital role in the superior court's sentencing
plan. We therefore conclude that striking or severing the
contested probation condition from Christensen's sentence does
not fundamentally alter its character. Stated another way,
Christensen's sentence was meaningfully imposed even in the
absence of the requirement of residential treatment.
For these reasons, we conclude that we must strike the
portion of the special condition of probation that requires
Christensen to spend time in residential treatment. The
remainder of that condition of probation (requiring Christensen
to comply with other recommendations of the alcohol program
evaluator) remains intact.
The judgement of the superior court is REVERSED.
