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THE COURT OF APPEALS OF THE STATE OF ALASKA
ARTHUR TARBELL, )
) Court of Appeals Nos. A-4620/4631
Appellant, ) Trial Court Nos. 3KN-S85-1086/
) 3AN-S92-2077CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1319 - October 22, 1993]
)
Appeal for Case No. 4620, from the Superior
Court, Third Judicial District, Kenai,
Charles K. Cranston and James A. Hanson,
Judges. Appeal for Case No. 4631, from the
District Court, Third Judicial District,
Anchorage, Gregory Motyka, Judge.
Appearances: Ted Stepovich, Stepovich,
Kennelly and Stepovich, P.C., Anchorage, for
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
Arthur Tarbell was convicted of misconduct involving a
controlled substance in the third degree, a class B felony. On
October 29, 1985, Judge James A. Hanson sentenced Tarbell to four
years imprisonment with two years suspended. Judge Hanson placed
Tarbell on probation. The judgment reads:
IT IS ORDERED that after serving any
term of incarceration imposed, the defendant
is placed on probation under the following
conditions:
General condition of probation.
1. Report to the Department of
Corrections Probation Office on the next
business day following the date of
sentencing, or, if time is to be served prior
to proba-tion, report to the Department of
Corrections Probation Office on the next
business day following release from an
institution.
The court imposed several other conditions. The judgment
provides that "the probation hereby ordered expires five (5)
years following your release from incarceration."
Tarbell was paroled on December 30, 1986; his parole
ended on October 29, 1987. On January 13, 1992, Tarbell's
probation officer, accompanied by police officers, searched
Tarbell's home. The probation officer did not have a warrant; he
relied on one of the special conditions of Tarbell's probation
which required him to submit to searches of his residence by a
probation officer.1 The law enforcement authorities found
marijuana in Tarbell's home. Tarbell's urine tested positive for
the presence of marijuana in his body. Based on this evidence,
the state petitioned to revoke Tarbell's probation.
Tarbell moved to dismiss the petition to revoke his
probation, arguing that his probation expired on December 30,
1991. Tarbell argued that the judgment in his case provided that
his probation would expire "five years following . . . release
from incarceration." Tarbell argued that since he was released
from prison on December 30, 1986, his probation expired five
years from that date on December 30, 1991 before the date of the
search of his residence.
The state opposed Tarbell's motion to dismiss,
contending that Tarbell's probationary period began when he was
released from parole supervision on October 29, 1987, and that,
under the judgment, Tarbell was still on probation until five
years from that date.
Superior Court Judge Charles K. Cranston denied
Tarbell's motion to dismiss. Judge Cranston found that Tarbell
had violated his probation and ordered Tarbell to complete a
substance abuse program. Judge Cranston did not impose any of
the jail time which had previously been suspended. Tarbell
appeals from Judge Cranston's order denying his motion to
dismiss. We reverse Judge Cranston's decision.2
On appeal, Tarbell repeats his contention that he was
not on probation when the authorities searched his residence. He
points out that he was released on parole December 30, 1986. He
points out that the plain language of the judgment indicated that
his probation would end "five years following your release from
incarceration." He contends that therefore his probation expired
five years from his release on parole and before the search of
his residence.
The state relies on former AS 33.20.040(c) which
provides:
If a prisoner's sentence includes a residual
period of probation, a prisoner released
under AS 33.20.030 shall immediately begin
serving the residual probationary period,
except that if mandatory parole is required
under (a) of this section, serving the
probationary period shall immediately follow
discharge from parole.
AS 33.20.040(c) in its amended form presently provides:
If a prisoner's sentence includes a residual
period of probation, the probationary period
shall run concurrently with a period of
mandatory parole for that sentence and the
prisoner shall be under the concurrent
jurisdiction of the court and the parole
board.
The state points out that because Tarbell's sentence exceeded 181
days, he was subject to mandatory parole. Former AS 33.16.010
and former AS 33.20.040(a). The state argues that under former
AS 33.20.040(c) Tarbell's probation could not begin until he was
discharged from parole.3 The state's argument appears to be that
former AS 33.20.040(c) totally forbids having a prisoner who is
potentially subject to release on mandatory parole from being on
probation at the same time that he is on parole release. We
think that the statute is far from clear and the state has not
presented us with any policy argument which would support that
interpretation of the statute. The current statute appears
contrary to the state's position as it provides for probation and
mandatory parole to run concurrently.
We have found two federal cases which support strictly
interpreting a court's judgment concerning when probation begins.
These cases also support allowing a defendant to serve probation
and parole concurrently. In United States v. King, 990 F.2d 190
(5th Cir. 1993), King was convicted on charges of bank robbery.
The district court sentenced King to a term of imprisonment,
suspended his sentence on one count, and placed him on "active
probation for a period of five (5) years to commence upon
defendant's release from custody." King was released on parole
and reported to his probation officer. King violated a condition
of his probation and the government moved to revoke probation.
The court revoked King's probation and imposed sentence.
King appealed, arguing that because he was on parole
his probation had not yet begun and the district court could not,
therefore, revoke his probation. The appellate court reasoned
that the question of when a defendant's probation begins turns on
the intent of the trial court. The court concluded that the
intention of the trial court would be determined by focusing on
the language which the trial court used to create the
probationary status. The circuit court stated:
The order contained no language
indicating that "defendant's release from
custody" means anything other than the
defendant's release from physical custody in
federal prison.
Id. at 192. The circuit court held that the district court did
not err in determining that King was on probation as soon as he
left prison.
Likewise, in United States v. Laughlin, 933 F.2d 786
(9th Cir. 1991), the court used reasoning similar to that in King
to reach a similar result. The court stated:
A defendant may simultaneously be on
parole and probation. There is nothing
inherently inconsistent about the two
custodial formats. They constitute two
separate punishments for two separate crimes.
They may be served concurrently as readily
as a jail term and probation can be
simultaneously served.
Id. at 789.
We find it unnecessary to interpret former AS
33.20.040(c). Judge Hanson's order stated that Tarbell's
probation would expire "five years following your release from
incarceration."4 From the teaching of the federal cases which we
have previously discussed, we conclude that we should interpret
the judgment in this case in light of Judge Hanson's original
intent as it is expressed in the judgment. The judgment clearly
states that Tarbell's probation is to expire five years after
Tarbell is released from incarceration. Following the federal
courts, it appears to us that the only possible interpretation of
this language is that Tarbell's probation was to expire five
years after his release from prison.
We fail to see how former AS 33.20.040(c) should
operate to extend Tarbell's probation and override the judge's
written statement declaring when Tarbell's probation should end.
We see no reason why Tarbell should not have been entitled to
rely on this clear language. It is the essence of fairness that
prisoners be able to rely upon unequivocal court orders informing
them when their probationary periods end. We agree with Tarbell
that his probation ended five years from December 30, 1986. We
accordingly hold that the superior court erred in revoking
Tarbell's probation based on an incident which occurred on
January 13, 1992, after his probation had expired.
The judgment revoking Tarbell's probation is REVERSED.
MANNHEIMER, J., concurring.
I concur in the decision of this case for reasons
slightly different from the majority's. I believe that the
legislature has the authority to declare whether a period of
probation imposed by a sentencing court will run concurrently
with or consecutively to a prisoner's parole. The legislature
has exercised that authority in AS 33.20.040(c). This statute
presently states that probation runs concurrently with mandatory
parole. Under the limited retroactivity provision of ch. 47,
1-2, SLA 1988, the present statute governs all prisoners who
were incarcerated on or after September 13, 1987, regardless of
when they committed their crimes. Tarbell, however, was released
from custody on December 30, 1986, so the present statute does
not apply to him.
From January 1986 until September 1987, the former
version of AS 33.20.040(c) embodied the opposite rule: probation
commenced only after mandatory parole had been completed. See
ch. 88, 3-4, 10, SLA 1985. However, Tarbell's offense was
committed before the legislature enacted this earlier version of
AS 33.20.040(c), so the former statute does not apply to him
either.
Because Tarbell committed his crimes before the legisla
ture regulated the relationship between probation and parole, I
concur in the majority's conclusion that the sentencing court was
free to structure the relationship between Tarbell's probation
and his potential parole release as the court saw fit. The
question then becomes: What did the sentencing judge intend when
he ordered that Tarbell's probation would expire "five years
following [Tarbell's] release from incarceration"?
If this provision of Tarbell's judgement is read
literally, Tarbell's probation would be triggered by his release
on mandatory parole. Under the same reading, Tarbell's probation
might have been triggered even earlier if he had been released on
discretionary parole under AS 33.16.100 or on furlough under
AS 33.30.101-131. One may doubt that the judge who sentenced
Tarbell envisioned these possibilities and structured Tarbell's
probation to take account of them. However, when the interpreta
tion of a criminal judgement is disputed, this court's duty is to
select, from among reasonable constructions of the judgement, the
construction most favorable to Tarbell.
In this case, the reasonable construction most
favorable to Tarbell is that his probation began on the day
following his release from prison on parole. This being so,
Tarbell's probation supervision ended on December 30, 1991 _ thus
ending the Department of Corrections' authority to search
Tarbell's residence without a warrant.
_______________________________
1. The validity of this probation condition is not at
issue in this appeal.
2. Tarbell also was charged with possession of
marijuana and entered a Cooksey plea to the offense, preserving
his right to argue that the search of his residence was illegal
since the search was based on his parole status. Our decision
that the search was illegal applies to this conviction, which is
also reversed.
3. In Gant v. State, 654 P.2d 1325, 1326 (Alaska App.
1982) the state took the opposite position. The state contended
that a defendant who was on parole release was concurrently on
probation. We found it unnecessary to decide whether Gant was
technically on probation. However, there is no indication that
AS 33.20.040(c) was considered in that case.
4. The state has not contended that anything in
Judge Hanson's oral remarks at sentencing should affect our
interpretation of the written judgment. We supplemented the
record with a tape recording of Judge Hanson's sentencing
remarks. In his oral remarks, it appears that although Judge
Hanson imposed a sentence of four years with two years suspended,
he did not specify a particular probationary period. He did
refer to certain conditions proposed by the probation officer
which we do not have. Since the parties to this appeal appear to
have agreed that the written judgment controls this matter, we
have resolved this matter based upon the written judgment.
