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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROGER H. HAMPEL, )
) Court of Appeals No. A-5501
Appellant, ) Trial Court No. 3AN-S92-6643CI
) t/w 3AN-S82-89CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1457 - February 9, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Kenneth M. Rosenstein, Timothy W.
Terrell, Assistant Attorneys General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Roger H. Hampel appeals an order entered by Superior
Court Judge Milton M. Souter denying Hampel's application for
post-conviction relief. We affirm in part and reverse in part.
Hampel was convicted of first-degree murder for the
1982 murder of James Music. This court overturned the conviction
and remanded for a new trial in Hampel v. State, 706 P.2d 1173
(Alaska App. 1985). In 1986, Hampel agreed to plead no contest
to the first-degree murder charge in return for an agreement by
the state that Hampel would receive no more than sixty years'
imprisonment. Superior Court Judge Victor D. Carlson sentenced
Hampel to sixty years' imprisonment, with twenty years suspended.
In 1989, Hampel filed pro se pleadings asserting that
he had made substantial progress toward rehabilitation and
requesting Judge Carlson to reduce his sentence. Although Hampel
initially designated his pro se pleadings as an application for
post-conviction relief filed pursuant to Alaska Criminal Rule
35.1, the prosecution and Judge Carlson construed them as a
motion for reduction of sentence filed under Alaska Criminal Rule
35(b). On June 12, 1992, Judge Carlson denied the motion because
Hampel failed to meet the rule's requirements.
In July of 1992, Hampel filed a pro se application for
post-conviction relief pursuant to Criminal Rule 35.1. This
application asserted seven grounds for relief. The superior
court subsequently appointed counsel to assist Hampel; Hampel's
attorney added another ground for relief. The state moved for
dismissal or judgment on the pleadings as to all claims. Judge
Souter thereafter issued a notice of intent to dismiss Hampel's
application, which called upon Hampel to show good cause why his
application should not be dismissed. Hampel's counsel responded
to the notice, but addressed only the supplemental issue that
counsel had added to Hampel's pro se application. Hampel filed a
pro se response addressing the remaining issues and a motion,
prepared by his attorney, seeking Hampel's appointment as pro se
co-counsel for purposes of responding to the court's notice of
proposed dismissal as to those issues.
Judge Souter denied Hampel's motion for co-counsel
status and dismissed his application for post-conviction relief
in its entirety. In ordering dismissal, Judge Souter relied on
the reasons set out in his earlier notice of intent to dismiss.
Notwithstanding his earlier denial of Hampel's motion for co-
counsel status, Judge Souter made it clear in his dismissal order
that, in deciding to dismiss the application, he had considered
Hampel's pro se response to the notice of intent to dismiss.1
Hampel appeals, claiming that the superior court erred
in dismissing his application for post-conviction relief. Hampel
also argues that the court abused its discretion in denying his
motion for appointment as pro se co-counsel.
We begin by considering the trial court's dismissal of
the claim asserted below by Hampel's court-appointed counsel.
Hampel's appointed counsel amended the post-conviction relief
application to claim that the Department of Corrections (DOC) had
improperly denied good-time credit in calculating Hampel's
eligibility for discretionary parole. The state did not dispute
the assertion that DOC had denied Hampel good-time credit toward
discretionary parole; rather, it responded that, for purposes of
determining eligibility for discretionary parole, Hampel was not
entitled to receive good-time credit.
As framed by the parties, this claim raised questions of law
that were properly addressed and resolved on the pleadings,
without an evidentiary hearing. Judge Souter accepted the
state's legal argument on its merits and rejected Hampel's claim.
On appeal, Hampel challenges this ruling and renews the argument
he made below. To explain our resolution of Hampel's argument,
we must review the statutes under which Hampel was convicted and
sentenced, as well as the statutes governing mandatory and
discretionary parole.
Hampel was convicted of murder in the first degree, in
violation of AS 11.41.100(a)(1). The offense was punishable
under AS 12.55.125(a), which provided for a mandatory minimum
term of twenty years: "A defendant convicted of murder in the
first degree shall be sentenced to a definite term of
imprisonment of at least 20 years but not more than 99 years."
Under AS 12.55.125(f)(1) and (f)(3), this twenty-year minimum
term could not be suspended or "otherwise reduced."
Hampel's plea bargain called for a sentence of no more
than 60 years' imprisonment. The sentence Hampel actually
received -- sixty years with twenty years suspended -- required
him to serve an unsuspended term of forty years. This forty-year
unsuspended term reflected the outer boundary of Hampel's
incarceration;2 it did not mean that Hampel would necessarily be
required to serve forty years before being released. Hampel's
actual date of release cannot be fixed without referring to two
separate but related sets of statutory provisions, the first
dealing with good-time credit and mandatory parole, and the
second dealing with discretionary parole.
The topics of good-time credit and mandatory parole of
prisoners are addressed in Title 33, Chapter 20 of the Alaska
Statutes. Alaska Statutes 33.20.030 requires that "[a] prisoner
shall be released at the expiration of the term of sentence less
the time deducted for good conduct." Upon discharge under this
provision, the prisoner is placed "on mandatory parole . . .
until the expiration of the maximum term to which the prisoner
was sentenced[.]" AS 33.20.040(a).
Alaska Statutes 33.20.010(a) prescribes the method of
calculating deductions for good time:
Except as provided in (b) of this
section and notwithstanding AS
12.55.125(f)(3) . . ., 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.
This statute, by expressly stating that a prisoner's entitlement
to a deduction for good time applies "notwithstanding AS
12.55.125 (f)(3)," effectively overrides the provision of AS
12.55.125(f)(3) that prohibits a twenty-year mandatory minimum
sentence for first-degree murder from being "otherwise reduced."
The "notwithstanding" language thereby carves out an exception
that allows the mandatory minimum term for first-degree murder to
be reduced, but only by the prescribed deduction "of one third of
the [prisoner's] term of imprisonment." AS 33.20.010(a).
Read together, AS 12.55.125(f)(3) and the provisions of
Title 33, Chapter 20 make it clear that, if Hampel follows
institutional rules, he will be entitled to discharge on
mandatory parole after serving two-thirds of his forty-year
unsuspended term -- twenty-six and two-thirds years.
A second set of statutory provisions -- formerly
contained in Title 33, Chapter 15 of the Alaska Statutes and now
superseded by similar provisions in Chapter 16 of the same Title
-- addresses the topic of discretionary parole. Hampel's case is
governed by the provisions of former Chapter 15, since those
provisions were in effect at the time of his sentencing. For
this reason, we address the provisions of former Chapter 15.
Former AS 33.15.080 gave the Alaska Parole Board
general authority to release prisoners on discretionary parole.
This statute also prescribed various conditions that governed the
exercise of the Board's discretionary authority, and it contained
a general provision making discretionary probation available only
to prisoners who had served "at least one-third of the period of
confinement to which a prisoner has been sentenced."
A more specific restriction on discretionary parole was
spelled out in former AS 33.15.180(b) for cases involving
mandatory minimum sentences:
A state prisoner who has been
imprisoned in accordance with AS 12.55.125(a)
or (b) may not be released on parole until
the prisoner has served at least the
prescribed minimum term of imprisonment.
This restriction expressly encompassed the twenty-year mandatory
minimum term prescribed for first-degree murder under AS
12.55.125(a), and was therefore directly applicable to Hampel's
case. Its literal application would require Hampel to serve
twenty years before becoming eligible for discretionary parole.
Hampel nevertheless maintains that this statute should
not be applied literally to his case. He refers to the statutory
scheme dealing with mandatory parole. Hampel particularly
focuses on AS 33.20.010(a), the statute regulating computation of
good time, which entitles prisoners to a one-third deduction
"notwithstanding AS 12.55.125(f)(3)" -- that is, notwithstanding
the mandatory minimum sentence for first-degree murder. Relying
on the provision governing computation of good time, Hampel
insists that, for purposes of determining whether he has "served
at least the prescribed minimum term of imprisonment" so as to be
eligible for discretionary parole under former AS 33.15.180(b),
he is entitled to a deduction of good time from the twenty-year
mandatory minimum sentence. Hampel reasons that, with credit for
good time under AS 33.20.010(a), he will have completed the
minimum twenty-year term for first-degree murder and become
eligible for discretionary parole after serving 13 and 1/3 years
-- 20 years less a one-third deduction for good time.
Hampel complains, as he did below, that DOC refuses to
apply good-time credit in computing his eligibility for
discretionary parole. The superior court upheld DOC's argument
that Hampel must serve his full minimum term, with no deduction
for good time, before he can be considered for release on
discretionary parole. Hampel urges us to reverse the superior
court's ruling. He reminds us that the disputed parole statutes
are penal provisions and that any ambiguity in their
interpretation must therefore be resolved in his favor. Wells v.
State, 706 P.2d 711, 713 (Alaska App. 1985).
However, the plain meaning of the disputed statutes
leaves nothing ambiguous and provides no support for Hampel's
argument. Although AS 33.20.010(a) entitles a prisoner to a
deduction for good time and, in so doing, carves out an exception
to the prohibition against "otherwise reduc[ing]" a minimum term,
AS 12.55.125(f)(3), this exception, by its own definition,
applies only when the minimum term is reduced as a result of
deducting good-time credit from the sentence that prisoner
actually received.3 The express language of AS 33.20.010(a)
allows a "prisoner . . . sentenced to a term of imprisonment that
exceeds three days" to receive a deduction for good time; the
statutory language goes on to define this deduction as "one-third
of the term of imprisonment." (Emphasis added.) In context, the
statutory phrase "the term of imprisonment" plainly refers to the
term actually imposed on the "prisoner . . . sentenced to a term
of imprisonment that exceeds three days[.]" The statute gives no
hint that the one-third deduction for good time is meant to apply
to any "term of imprisonment" other than the term actually
imposed.
Here, Hampel does not seek a deduction of one-third of
"the term of imprisonment" he actually received. Hampel's
problem is that, to become eligible for discretionary parole, he
must first serve "at least the prescribed minimum term of
imprisonment" for first-degree murder. Former AS 33.15.180(b).
It is thus the "prescribed minimum term of imprisonment"
specified under AS 12.55.125(a) that Hampel seeks to reduce by
deducting good-time credit. Yet, as we have indicated, the plain
language of AS 33.20.010(a) authorizes deductions for good time
to be taken only from the sentence that Hampel has actually
received; this language does not contemplate any reduction of
"the prescribed minimum term of imprisonment," as such.
Moreover, no such reduction is hinted at in AS 33.15.180(b), the
discretionary parole statute. In short, the plain meaning of the
disputed statutes militates against Hampel's request for a
deduction of good time under the discretionary parole statute.
We must nevertheless inquire beyond the plain meaning
of the parole provisions, since Alaska has "rejected a mechanical
application of the plain meaning rule in favor of a sliding scale
approach" to statutory interpretation. Peninsula Marketing Ass'n
v. State, 817 P.2d 917, 922 (Alaska 1991). Under the sliding
scale approach, when legislative intent conflicts with plain
meaning, we seek a balance between the two: "the plainer the
language of the statute, the more convincing contrary legislative
history must be." Marlow v. Anchorage, 889 P.2d 599, 602 (Alaska
1995) (citing Peninsula Marketing Ass'n v. State, 817 P.2d at 922
and Homer v. Gangl, 650 P.2d 396, 400 n.4 (Alaska 1982)). In the
present case, however, the legislative history of our parole
statutes establishes no conflict between plain meaning and
legislative intent. In fact, legislative history weighs heavily
against Hampel's position. Alaska's discretionary and mandatory
parole statutes derive from federal law; in enacting these
provisions, our legislature expressed its intent to incorporate
then existing federal law: "The principle of good time for
prisoners should be adopted into Alaska law as it is found in
present federal laws dealing with Alaska." Morton v. Hammond,
604 P.2d 1, 2 & n.3 (Alaska 1979) (quoting 1960 House Journal
194).
Federal statutes dealing with discretionary and
mandatory parole emerged from separate historical sources; those
statutes have always treated the two types of release as distinct
systems. See LaMagna v. United States Federal Bureau of Prisons,
494 F. Supp. 189, 193 (D. Conn. 1980). Federal courts
considering the mandatory parole procedure -- which they refer to
as "conditional release" -- have thus observed that "[t]he
conditional release procedure established by the [good-time
credits] statute is sui generis and is not identical with
[discretionary] parole." Hicks v. Reid, 194 F.2d 327, 328 (D.C.
Cir. 1952).
Within the federal system, good-time credits have been
applied solely in the context of the mandatory parole procedure,
and have not been extended to the calculation of eligibility for
discretionary parole:
Under the federal good time system, the
Bureau of Prisons applies good time credits
to the prisoner's maximum sentence which
moves the mandatory release date forward, but
does not affect the minimum term required to
be served before an inmate becomes eligible
for parole.
Moss v. Clark, 886 F.2d 686, 688 (4th Cir. 1989).
DOC's interpretation of Alaska's good-time statute has
always been consistent with the federal approach. Alaska Parole
Board regulations have consistently precluded the use of good-
time deductions to reduce the prescribed minimum term that a
prisoner must serve to become eligible for discretionary parole.
See Art. I, ' 035 Parole Board Regulations (1980); 22 AAC
20.085(b).
Moreover, in the limited instances when the legislature
has found it necessary to apply good-time deductions within the
context of Alaska's discretionary parole statutes, it has done so
in clear and unambiguous terms. See, e.g., AS 33.16.010(c) ("A
prisoner who is not eligible for discretionary parole, or who is
not released on discretionary parole, shall be released on
mandatory parole for the term of good-time deductions credited
under AS 33.20[.]"); AS 33.16.090(c) ("The unenhanced sentence or
the initial presumptive sentence is considered served for
purposes of discretionary parole on the date the unenhanced or
initial presumptive sentence is due to expire less good time
earned under AS 33.20.010.")4 Absent comparably clear
legislative authority, deducting good time from a prescribed
minimum term for purposes of calculating eligibility for
discretionary parole under former AS 33.15.180(b) would directly
contravene the statutory prohibition against "otherwise
reduc[ing]" a minimum term. AS 12.55.125(f)(3).
In sum, we find nothing in the legislative history of
Alaska's parole statutes indicating a legislative intent to
extend good-time deductions prescribed in AS 33.20.010(a) to the
calculation of whether a prisoner is eligible for discretionary
parole by virtue of having served a mandatory minimum term of
imprisonment. The plain meaning of AS 33.20.010(a) is the
meaning we must adopt. Adopting this meaning, we conclude that
deductions of good time under AS 33.20.010(c) are inapplicable in
calculating whether a mandatory minimum term of imprisonment has
been served for purposes of determining discretionary parole
eligibility under either former AS 33.15.080(b) or its
contemporary counterpart, AS 33.16.100(d).5 Accordingly, the
superior court did not err in dismissing Hampel's claim of
entitlement to a deduction for good time.
We must next consider the propriety of the superior
court's order dismissing Hampel's remaining claims, which he
advanced pro se and which purported to raise factual issues,
rather than pure issues of law.6 Dismissal of such claims is
governed by Alaska Criminal Rule 35.1, which establishes "a three-
phase process, the first phase involving the filing of the
application and the assessment of its sufficiency to set out a
prima facie case for relief, the second phase involving discovery
and review for genuine issues of disputed fact, and the third
involving the evidentiary hearing and formal resolution of
disputed facts." Parker v. State, 779 P.2d 1245, 1246 (Alaska
App. 1989) (footnote omitted).
Here, the superior court terminated Hampel's action at
the first phase of the process, finding his claims insufficient
on their face. The ground rules for summary dismissal at the
first phase of the post-conviction relief process are well
settled. To determine the facial sufficiency of an application
for post-conviction relief, the court must accept as true all of
the allegations in the application and inquire whether those
facts, if proven, would entitle the applicant to the relief
sought. See Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska
App. 1992).
[A]t the first phase of the post-
conviction relief process, resolution of
factual disputes is not involved; the
sufficiency of the pleadings must be assessed
by viewing the application and all factual
information incorporated therein in the light
most favorable to the applicant.
DeJesus v. State, 897 P.2d 608, 618 (Alaska App. 1995).
In his first pro se claim, Hampel asserted that the
plea of no contest upon which he was convicted was involuntary
because he entered it in the belief that his eligibility for
discretionary parole would be calculated by allowing him good-
time credit against the twenty-year mandatory minimum sentence
for first-degree murder. As Hampel puts it, he "thought he was
pleading to a sentence where he would be eligible for parole
after serving one-third [rather than one-half]." Given the
nature of Hampel's plea agreement, this claim seems implausible
on its face.7 Moreover, as the state correctly notes, the record
of Hampel's change of plea hearing seemingly belies Hampel's
claim that he believed he would get good-time credit deducted
from the twenty-year mandatory minimum term.
At any rate, even when we accept Hampel's allegations
of fact as true -- as we must for purposes of reviewing the
propriety of a summary dismissal -- Hampel's claim lacks merit;
for even if proved, those allegations would entitle Hampel to no
relief. Hampel has at most alleged that he entered his no
contest plea under a mistaken impression as to the manner in
which his eligibility for parole would be determined; nowhere
does Hampel claim that he was promised by his attorney, the
court, or others that his eligibility for discretionary parole
would be determined in the manner he expected. The fact that
Hampel unilaterally formed a subjective impression as to what
might happen and that this impression ultimately proved wrong
does not vitiate the voluntariness of his plea or provide grounds
for its withdrawal. Winkler v. State, 580 P.2d 1167, 1172
(Alaska 1978).8
The next pro se claim in Hampel's application was that
he had been the victim of prosecutorial misconduct. Hampel
alleged that he entered his no contest plea in 1986 with the
expectation that, several years after being sentenced, he would
file a motion to reduce his sentence. According to Hampel, the
prosecutor who was assigned to his case at that time had promised
that, if Hampel continued to make progress toward rehabilitation,
the state would not oppose the eventual reduction of Hampel's
sentence. Hampel claimed that the prosecutor made this promise
during the course of plea negotiations and repeated it on the
record at the sentencing hearing, where Judge Carlson
acknowledged it.
Hampel further alleged that, when he ultimately filed a
motion to reduce his sentence in 1989, the state -- represented
by a new prosecutor -- reneged on its earlier promise not to
oppose the reduction; instead, the state claimed that it had only
promised not to oppose Hampel's filing of a motion to reduce his
sentence -- a claim Judge Carlson arguably accepted when he
declined to reduce Hampel's sentence.
Hampel additionally asserted that he thereafter
obtained a tape recording of his sentencing proceedings and found
that it had been altered to delete segments in which the state's
promise was mentioned and acknowledged by the court. In support
of his assertion that the sentencing record had been altered,
Hampel submitted a report from an audio forensic laboratory that
had examined a purportedly court-produced copy of the tape
recording of the sentencing proceedings; the report indicated
that preliminary examination revealed "signs suggestive of
falsification," which led the examiner to form a "strong opinion
that the integrity of this recording is highly questionable."
The superior court found Hampel's claim "clearly
frivolous" based on the court's review of the sentencing record.
In the court's view, Hampel's assertion that the tape recording
had been altered was "highly dubious." The court's review of the
sentencing proceedings persuaded it that the only promise made by
the prosecution was that the state would not contest the filing
of a motion to reduce Hampel's sentence.
In our view, the superior court erred in dismissing
this claim. The court mistakenly characterized the claim as
involving only an allegation of misconduct at the sentencing
hearing. Hampel plainly alleged that the state's promise of non-
opposition had been advanced both on the record -- at the
sentencing hearing -- and off the record -- during plea
negotiations. Moreover, to reach the conclusion that Hampel's
claim was meritless, the superior court engaged in a process of
determining the truthfulness of Hampel's allegations: it
evaluated the credibility of Hampel's factual assertions in light
of the record before it and found them implausible. Rejection
of a claim on grounds of credibility is premature at the first
phase of the post-conviction relief process, however, for at this
phase the superior court must accept as true all of the
allegations in the application and inquire whether those facts,
if proven, would entitle the applicant to the relief sought. See
Steffensen v. State, 837 P.2d at 1125-26.
Here, Hampel's claim of misconduct, if true, would
warrant relief. The superior court's order of dismissal must be
vacated as to Hampel's claim of prosecutorial misconduct.
Hampel's five remaining pro se post-conviction claims
require only brief discussion. Four of the five remaining claims
were integrally related to each other and to Hampel's claim of
prosecutorial misconduct.9 They are dependent on, and subsumed
within, Hampel's claim that the state reneged on its promise not
to oppose the reduction of his sentence. Assuming the
allegations advanced in these claims were proven true, they would
afford Hampel no relief independent of that which he seeks in his
claim of prosecutorial misconduct. Accordingly, they need not be
separately decided.10
Hampel's last pro se claim was a general assertion of
ineffective assistance of counsel leveled against the attorney
who represented Hampel in his change of plea and sentencing
proceedings. Hampel based his claim on conclusory allegations of
conflict, neglect, and psychological coercion, rather than on
specific facts. Our review of the record convinces us that
Hampel's application alleges no specific facts that, if true,
would overcome the presumption of competence that attaches to an
attorney's actions. State v. Jones, 759 P.2d 558, 569 (Alaska
App. 1988). Dismissal of this claim was not error.
The superior court's order dismissing Hampel's
application for post-conviction relief is AFFIRMED in part and
REVERSED in part. This case is REMANDED for further proceedings
on Hampel's claim of prosecutorial misconduct.
_______________________________
*Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution.
1. In relevant part, the dismissal order stated: "Plaintiff's reply to the
notice is nothing more than a rehashing of the arguments in the original
application and does not cure the defects in the application."
2. For purposes of this appeal, we disregard the possibility that Hampel's
forty-year unsuspended term might eventually be enlarged by a probation
violation resulting in imposition of all or
part of the twenty-year suspended portion of Hampel's sentence -- a possibility that
is irrelevant to the issues raised in Hampel's appeal.
3. For example, a prisoner actually sentenced to the minimum term of twenty
years would be entitled to mandatory release with credit for good time upon
serving two-thirds of the sentence, even though the mandatory release would
effectively reduced the minimum term.
4. As evidence that the relationship between Alaska's good- time credit
statute and its discretionary parole statutes is ambiguous, Hampel points
to legislative commentary on AS 33.16.090, which mentions that "this
section resolves a major ambiguity present in current law." 1985 House
Journal Supp. No. 42 at 3 (April 4, 1985). However, the "ambiguity" to
which the commentary refers is in the definition of the term "presumptive
sentence," and not in the scope of the good-time credit statute. Id.
5. Alaska Statutes 33.16.100(a), which governs unclassified and class A
felonies, conditions eligibility for discretionary parole not only on
service of any mandatory minimum term prescribed for such crimes, but also
on service of "at least one-third of the period of confinement imposed, or
any minimum term set [by the sentencing court as a restriction on
eligibility for discretionary parole] under AS 12.55.115 at sentencing,
whichever is greater."
Our decision in the present case, however, is limited to the effects of statutory
good-time deductions on the mandatory minimum term provisions of the
discretionary parole statutes; we do not consider or decide whether
deductions of good time under AS 33.20.010(c) are otherwise applicable in
determining discretionary parole eligibility.
6. As a subsidiary issue on appeal, Hampel asserts that the superior court
erred in denying his motion to be appointed pro se co-counsel for purposes
of pursuing these claims. We need not decide the issue. Hampel sought co-
counsel status as to these claims for the sole purpose of filing a response
to the superior court's notice of their proposed dismissal. In conjunction
with the motion for co-counsel status, Hampel submitted his proposed
response. As we have already indicated, despite the superior court's
rejection of Hampel's motion for co-counsel status, Hampel's pro se
response was accepted for filing, and the court expressly considered it in
issuing its final order of dismissal. It thus appears that the denial of
co-counsel status, even if erroneous, resulted in no prejudice to Hampel.
There is no indication that the pro se co-counsel issue is likely to arise
again on remand. Hampel's request for co-counsel status appears to have
originated, not from his desire to avoid representation, but rather from
his attorney's election to pursue only one of the several issues raised in
the application, thus leaving Hampel to drop the remaining issues or pursue
them on his own. Our current decision leaves only one issue for
consideration on remand. Hampel is entitled to the assistance of counsel
with respect to that claim. Cf. Hertz v. State, 755 P.2d 406 (Alaska App.
1988).
7. It is undisputed that Hampel could have received up to sixty years of
unsuspended time under his plea agreement; he actually received only forty.
When Hampel entered his no contest plea, he had no right to expect that he
would receive only forty years of unsuspended incarceration or that the
maximum permissible term would not be imposed. Had Hampel received sixty
years' imprisonment and been eligible for discretionary parole after
serving one-third of his term, as he claims he expected, then his
eligibility for discretionary parole would have commenced precisely when it
will now: after he served twenty years. Since Hampel's current situation
would plainly be within the contemplated scope of the original plea bargain
no matter how the discretionary parole provisions might be interpreted, it
is difficult to understand how Hampel can claim that his misunderstanding
of discretionary parole rendered his plea involuntary.
8. In rejecting this claim, the superior court relied on the mistaken
assumption that Hampel had filed a prior application for post-conviction
relief and that the claim was therefore precluded under Criminal Rule
35.1(h). We are not bound by the trial court's mistaken factual assumption
and are free to affirm the court's ruling on any independent legal ground.
McGee v. State, 614 P.2d 800, 805-06 n.10 (Alaska 1980).
9. In these claims, Hampel complained that Judge Carlson did not address or
rule on his claim of prosecutorial misconduct when Hampel first raised it
prior to Judge Carlson's denial of Hampel's motion to reduce his sentence.
Hampel further complained that, in his efforts to establish that an on-
record promise of non-opposition had been made during the 1986 sentencing
proceedings, he was twice denied access to and delivery of transcripts, was
thereafter given a tape recording that was not a true and correct record of
the court proceedings, and was improperly refused a certified copy of the
record. Hampel asserted as to each of these claims that he was denied his
rights under the Fifth, Ninth, and Fourteenth Amendments and was
consequently unlawfully confined.
10. We do not construe Hampel's transcript-related claims to
assert any continuing obstruction of his right to obtain a true copy of the record of
the sentencing hearing, except insofar as Hampel asserts that the copy he
has now received has been altered and reflects an inaccurate picture of the
actual proceedings. Since this latter assertion is an integral aspect of
Hampel's prosecutorial misconduct claim, it need not be considered
independently of the misconduct claim.
