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THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN D. CALLAN, )
) Court of Appeals No. A-5418
Appellant, ) Trial Court No. 3AN-S90-2319CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
) [No. 1445 - November 3, 1995]
Appellee. )
)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Mark C.
Rowland, Judge.
Appearances: Sharon Barr, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Marilyn
J. Kamm, Assistant Attorney General,
Department of Law, Criminal Division, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
In 1990, Steven D. Callan was convicted of theft in the
second degree, a class C felony. A superior court judge
sentenced Callan to serve a sentence of three years of
imprisonment on the charge.1 Callan served two years of this
sentence and the state released him on mandatory parole under
AS 33.20.010.2 Callan had accumulated 365 days of good time
which he was required to serve on mandatory parole.
On August 1, 1992, the state charged Callan with
burglary in the second degree, a class B felony. Callan was
arrested and imprisoned on this charge. Additionally, the parole
board ordered Callan detained on his former theft conviction.
The parole board ultimately revoked Callan's parole, requiring
him to serve his 365 days of accumulated good time.
On January 4, 1993, Superior Court Judge Rene J.
Gonzalez sentenced Callan to three years of imprisonment
(presumptive) in the burglary case. Pursuant to AS 12.55.025(e),
Callan's sentence on the burglary conviction was consecutive to
his remaining sentence on his parole revocation in the theft
case.3
Approximately one year later, Callan filed an
application for post-conviction relief in which he contended
that, at the time of his parole revocation, he had served his
sentence for the theft conviction. Callan argued that he was
entitled to a deduction for good time on this sentence.4 He
argued that since he had served his sentence for the theft
conviction, the state was required to release him on mandatory
parole in that case, pursuant to AS 33.20.040(a). According to
Callan, he would then immediately begin to serve his time on the
burglary conviction while simultaneously serving his mandatory
parole time.
The state argued for a different procedure. First, the
state added together Callan's sentence of 365 days for the parole
violation on his former theft conviction and his three-year
sentence on his burglary conviction. The state arrived at a
total sentence of three years and 365 days. The state then
computed Callan's good time based upon the total sentence.5
Finally, the state calculated Callan's mandatory release date
based on good time and his composite sentence. Under the state's
calculations, the state will not release Callan on good time for
his theft conviction until he has completed his entire composite
sentence less good time. At that time, the state will release
him on the good time which he accumulated on the composite
sentence.
Superior Court Judge Mark C. Rowland decided this issue
in favor of the state, dismissing Callan's action for post-
conviction relief. Since the issue which Callan raises is a
question of law, not fact, this court exercises its independent
judgment in interpreting the good time and mandatory release
statutes. Glidden v. State, 842 P.2d 604, 606 (Alaska App.
1992). Alaska's good time and mandatory release statutes
are based on former federal statutes. Morton v. Hammond, 604
P.2d 1, 2 (Alaska 1979); see former 18 U.S.C. '' 4161-66; AS
33.20.030 & AS 33.20.040. Federal decisions interpreting the
federal statutes support the state's method of calculating good
time, which is based on calculating good time for the composite
sentence for all of the prisoner's convictions. See McCray v.
United States Board of Parole, 542 F.2d 558, 560 (10th Cir.
1976); Briest v. United States Bureau of Prisons, 459 F.2d 284
(8th Cir. 1972). In McCray, the court stated:
There is no authority for the
proposition that consecutive sentences
"expire" independ-ently of one another. The
argument that consecutive sentences have
separate mandatory release dates and that as
each sentence reaches that date the next
sentence begins has been made before and
summarily rejected.
542 P.2d at 560 (citations omitted).
In addition to being supported by federal precedent,
the state's system appears more logical than the system which
Callan proposes. It seems simpler and more sensible to calculate
a prisoner's release on mandatory parole based upon his composite
sentence rather than each individual sentence. Under the system
proposed by Callan, it would be important to calculate which
sentence the prisoner should serve first. Furthermore, a
prisoner sentenced to serve four years based upon two consecutive
two-year sentences would be treated differently than a prisoner
sentenced to a single four-year sentence. We conclude that
precedent and policy favor adoption of the state's interpretation
of the good time and mandatory release statutes. Judge Rowland
did not err when he dismissed Callan's application for post-
conviction relief.
AFFIRMED.
MANNHEIMER, Judge, concurring.
I am writing to explain in more detail what this
litigation is about and why I join in the court's decision.
In 1990, Callan was convicted of theft and sentenced to
serve 3 years in prison. At the end of 2 years in prison, Callan
had accumulated 1 year of good time credit under AS 33.20.010 C
an amount equal to the time remaining on his sentence. He was
therefore released on parole. AS 33.20.030-040.
While on parole, Callan committed burglary, and he was
sentenced to 3 years' imprisonment for this crime. Based on the
burglary, the Parole Board revoked Callan's 1 year of good time
credit from the earlier theft conviction. Thus, Callan was sent
to prison to serve the 1 remaining year from his theft sentence
and to serve a consecutive 3-year sentence for his burglary.
Approximately one year later, Callan filed an
application for post-conviction relief. The relief Callan sought
was in the nature of a declaratory judgement: an order directing
the Depart-ment of Corrections to calculate his sentence and his
parole date in a particular way.
The Department of Corrections calculated that Callan
would spend 2 years and 8 months in prison, and then he would
spend 1 year and 4 months on mandatory parole. The Department's
calcu-lation was based on the working assumption that Callan's
two sentences should be treated as one composite term of 4 years'
imprisonment. Because a prisoner accrues good time credit at the
rate of 1 day for every 2 days of good behavior in prison, Callan
would be entitled to release on mandatory parole after serving
two-thirds of this 4-year composite term C or approximately 2
years, 8 months C and then Callan would spend the remaining 1
year, 4 months on mandatory parole.6
Callan argued that the Department's calculation was
mistaken. He asserted that, because he had been sentenced to two
separate, consecutive sentences, his time in prison should be
credited first to one sentence, then to the other. Callan argued
that he should be deemed to first be serving his 1 year of
revoked good time credit from his theft conviction, then (at the
end of that 1-year sentence) to be serving the 3-year sentence he
received for the burglary. According to Callan's calculation,
his first 8 months in jail satisfied the 1-year theft sentence
(that is, he served 8 months and he earned 4 months of good time
credit). At the end of those 8 months, Callan argued, he was
entitled to immediate release on parole from the 1-year theft
sentence. Callan further asserted that the Department of
Corrections had no authority to defer this theft parole until the
end of his burglary sentence. Thus, Callan argued, he must be
deemed to have simultaneously served his 4 months of mandatory
parole from the theft sentence at the same time he was serving
the first 4 months of his burglary sentence.
The practical effect of this difference between the
Department of Corrections' calculation and Callan's calculation
lies in the date of Callan's ultimate release from state super
vision. Under the Department's calculation, Callan would be
released from state supervision 4 years after he entered prison.
That is, Callan would serve 2 years, 8 months in prison and then
spend 1 year, 4 months on mandatory parole. Under Callan's calcu-
lation, he would be released from mandatory parole 4 months
earlier. According to Callan, his 4-month mandatory parole from
the theft sentence was served during months 9 through 12 of his
imprisonment (that is, simultaneously with the first 4 months of
Callan's burglary sentence), so that he would have only 1 year of
mandatory parole remaining (all attributable to his burglary
sentence) when he was released from prison.
Superior Court Judge Mark C. Rowland decided this issue
in favor of the State. Since the issue Callan raises is purely
one of law, this court exercises its independent judgment when
reviewing the superior court's interpretation of the statutes.
Glidden v. State, 842 P.2d 604, 606 (Alaska App. 1992).
Alaska adopted its good time and mandatory parole
statutes from former federal legislation. Morton v. Hammond, 604
P.2d 1 (Alaska 1979). The federal cases interpreting these
federal statutes C former 18 U.S.C. '' 4161-66 C support the
Department of Corrections' method of computation. That is, in
analogous circumstances, federal courts have ruled that a
prisoner's various consecutive sentences should be treated as one
composite sentence when calculating the prisoner's good time
credit and parole release date. See McCray v. United States
Board of Parole, 542 F.2d 558, 560 (10th Cir. 1976); Briest v.
United States Bureau of Prisons, 459 F.2d 284 (8th Cir. 1972).
Under the former federal statutes, a prisoner's rate of
good time accrual depended on the length of the prisoner's
sentence (prisoners with longer sentences earned good time credit
at a faster rate). See State v. McCallion, 875 P.2d 93, 95 n.3
(Alaska App. 1994). It is therefore possible to explain these
federal decisions as the product of the rule of lenity C the rule
that ambiguous penal statutes should be interpreted in favor of
defendants. However, in addition to being supported by federal
precedent, the State's method of calculation appears more logical
and fair. Under Callan's proposed calculation, a prisoner's
final release date would be greatly, and arbitrarily, affected by
the choice of which sentence he or she was deemed to be serving
first.
Suppose a defendant was simultaneously sentenced to
consecutive terms of 6 years and 3 years. Assuming that the
defendant received a one-third reduction for good time credit
against each sentence, the 6-year sentence from crime A would
entail 4 years of actual imprisonment and 2 years of mandatory
parole, while the 3-year sentence for crime B would entail 2
years of actual imprisonment and 1 year of mandatory parole.
Under the State's calculation, this defendant would
serve 6 years in jail and then 3 years on parole, for a total of
9 years under state supervision. Using Callan's method of
calculation, the defendant's total time under state supervision
would vary, depending upon which sentence was considered "served"
first.
If the prisoner were deemed to be serving the 3-year
sentence for crime B first, then the prisoner's year of mandatory
parole for that crime would be served simultaneously with his
first year of imprisonment for crime A. Thus, the prisoner would
spend a total of 6 years in jail (during which time he would
satisfy his year of parole on crime B), and then he would spend 2
years on parole from crime A C a total of 8 years under state
supervision. But if the prisoner were deemed to be serving the 6-
year sentence for crime A first, then his 2 years of mandatory
parole for that crime would be served simultaneously with his 2
years of actual imprisonment for crime B. Under this scenario,
the prisoner would spend only 7 years under state supervision C 6
years in jail and then only 1 year on parole from crime B.
The fact that Callan's method of calculation leads to
such arbitrary and unfair results is a strong argument against
it. See Endell v. Johnson, 738 P.2d 769 (Alaska App. 1987)
(rejecting a proposed interpretation of the statute granting
credit for time served because the interpretation led to
arbitrary and unfair differences in the amount of time defendants
spent in prison). Moreover, it appears strained (at best) to
suggest that AS 33.20 should be construed to place a prisoner on
"parole" at the same time that he or she is actually imprisoned
and serving another sentence.
For these reasons, the superior court rightly rejected
Callan's proposed method of calculation and his assertion that he
was simultaneously paroled and imprisoned.
_______________________________
1. Callan was also convicted of criminal trespass in the first degree, a class A
misdemeanor, and was ordered to serve a concurrent sentence.
2. Alaska Statute 33.20.010 provides, in relevant part:
[A] prisoner convicted of an offense against the state or a political
subdivision of the state and sentenced to a term of imprisonment
that exceeds three days is entitled to a deduction of one-third
of the term of imprisonment rounded off to the nearest day if the
prisoner follows the rules of the correctional facility in which
the prisoner is confined.
3. Alaska Statute 12.55.025(e) provides, in relevant part:
If the defendant is imprisoned upon a previous judgment of conviction for a
crime, the judgment shall provide that the imprisonment commences
at the expiration of the term imposed by the previous judgment.
4. Alaska Statute 33.20.040(a) states:
Except as provided in (c) of this section, a prisoner released under AS
33.20.030 shall be released on mandatory parole to the custody
and jurisdiction of the parole board under AS 33.16, until the
expiration of the maximum term to which the prisoner was
sentenced, if the term or terms of imprisonment are two years or
more. However, a prisoner released on mandatory parole may be
discharged under AS 33.16.210 before the expiration of the term.
A prisoner who was sentenced to a term or terms of imprisonment
of less than two years shall be unconditionally discharged from
mandatory parole.
Alaska Statute 33.20.030 provides, in relevant part:
A prisoner shall be released at the expiration of the term of sentence less
the time deducted for good conduct.
5. The state represents that Callan has forfeited a total of 120 days of good
time due to disciplinary actions. Callan apparently does not contest this.
1. It appears that, following his re-incarceration, Callan lost 120 days of this
good time for infractions of prison rules. However, for purposes of
deciding the issue in this appeal, this additional loss of good time is
irrelevant.
