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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CLYDE SMITH, )
) Court of Appeals No. A-5186
Appellant, ) Trial Court No. 3AN-91-2125 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1403 - March 31, 1995]
______________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Milton M. Souter,
Judge.
Appearances: Wally Tetlow, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Phil
Moberly, Assistant District Attorney, Edward
E. McNally, District Attorney, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
In 1991, Clyde Smith pleaded guilty to third-degree
misconduct involving a controlled substance (sale of cocaine),
AS 11.71.030(a)(1), and first-degree misconduct involving weapons
(being a felon in possession of a concealable firearm), AS 11.61.
200(a)(1). As a second-felony offender, Smith was subject to a 4-
year presumptive term for the sale of cocaine. AS 11.71.030(c)
and AS 12.55.125(d)(1). The superior court found both
aggravating and mitigating factors. After considering these
factors, the court sentenced Smith to 6 years with 2 years
suspended (4 years to serve). The court imposed a concurrent
sentence for the felon-in-possession offense. (This court
affirmed Smith's sentence in Smith v. State, Memorandum Opinion
No. 2572 (Alaska App., December 9, 1992).)
Smith's present appeal concerns the calculation of this
sentence. At the time he was sentenced, Smith had spent 266 days
in jail. Superior Court Judge Milton M. Souter declared that
Smith should receive credit against his sentence for these 266
days. The State objected, pointing out that Smith had not been
arrested for his present offenses, but rather for violating his
parole from his prior felony. The State argued that, since Smith
was going to be credited with these 266 days in his prior felony,
he should not receive another 266-day credit in his present case.
Judge Souter disagreed, ruling that Smith should receive the 266-
day credit in both cases.
This ruling was incorrect. By law, Smith's sentence in
the present case had to run consecutively to his sentence from
his previous felony. AS 12.55.025(e); Jennings v. State, 713
P.2d 1222 (Alaska App. 1986). This being so, Smith's 266 days in
jail could be applied against only one of these sentences.
Endell v. Johnson, 738 P.2d 769 (Alaska App. 1987).
When the Department of Corrections refused to give
Smith double credit for the 266 days, Smith filed a motion
seeking a reduction of his sentence. He recognized that he was
not entitled to receive double credit for the 266 days, but he
argued that his period of incarceration was now going to be 266
days longer than Judge Souter originally intended. Judge Souter
denied Smith's motion. He reasoned that Smith's sentence must
remain unaltered because (1) his original order giving double
credit for time served had been illegal, and (2) Smith's prison
sentence in the present case was presumptive and could not be
reduced. Following this ruling, Smith attacked his sentence on
constitutional grounds, asserting that Judge Souter's refusal to
modify the sentence was, in effect, an illegal increase in the
sentence. Judge Souter denied Smith's motions.
Smith now appeals Judge Souter's rulings. We reverse.
If a defendant's sentence is illegal, it has not been
"meaningfully imposed" for double jeopardy purposes, and it can
be corrected even if this means increasing the severity of the
sentence. Dunham v. Juneau, 790 P.2d 239, 240-41 (Alaska App.
1990); State v. LaPorte, 672 P.2d 466, 468-69 & n.6 (Alaska App.
1983); Charles Wright, Federal Practice and Procedure: Criminal
(2nd ed. 1982), 582, Vol. 3, pp. 380-89. However, the illegal
sentence can be modified only to the extent necessary to correct
the illegality. Christensen v. State, 844 P.2d 557, 558 (Alaska
App. 1993); 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).
The illegality in this case is that, under the sentence
as it was originally imposed, Smith received 266 days' credit
against both the sentence for his present crime and the sentence
for his previous crime. If this illegality were corrected
without any other adjustment of Smith's sentence, Smith would
spend more time in jail than Judge Souter originally announced.
Apprised of this problem, Judge Souter refused to adjust Smith's
4-year sentence because he believed it to be unalterable under
the presumptive sentencing laws. However, when sentencing Smith
in the present case, the superior court found that Smith had
proved a mitigating factor. The presence of this mitigating
factor allowed the court to adjust Smith's presumptive term
downward. AS 12.55.155(a)(1). Judge Souter thus had the
authority to reduce Smith's sentence to take into account the
extra time Smith would spend in prison now that the 266 days were
going to be counted only once.
Because Judge Souter had the authority to correct the
illegality in Smith's original sentence without increasing
Smith's time to serve, he should have granted Smith's motion and
adjusted Smith's sentence accordingly. The judgement of the
superior court is REVERSED. This case is remanded to the
superior court with directions to amend Smith's sentence in
conformity with this opinion.
