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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-6005
Appellant, ) Trial Court No. 4FA-88-907 Cr
)
v. ) O P I N I O N
)
ROBERT TINSLEY, )
)
Appellee. ) [No. 1500 - November 29, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: Joseph S. Slusser, Assistant
District Attorney, and Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant. No
appearance for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
In 1988, Robert Tinsley was convicted of two counts of
first-degree weapons misconduct, former AS 11.61.200(a). He
received concurrent sentences of 3 years' imprisonment with 1 year
suspended (2 years to serve). Tinsley served his 2 years in prison
and was released on probation.
On June 30, 1995, Tinsley filed a motion under Alaska
Criminal Rule 35(a) in which he asked the superior court to modify
his 1988 criminal judgement (retroactively) to reflect two suspended
impositions of sentence (SIS), and to simultaneously set aside his
two 1988 convictions on the basis that Tinsley had already
satisfactorily completed the about-to-be-imposed periods of SIS
probation. Tinsley asked the superior court to do this because he
had "gotten his act together" and could now be a responsible
citizen. In other words, Tinsley asked the superior court to
retroactively alter the 1988 criminal judgement because (Tinsley
asserted) he was now rehabilitated.
Tinsley's initial procedural hurdle was that Criminal Rule
35(a) (as it existed on June 30, 1995 þ the day Tinsley filed his
motion) required Tinsley's motion for reduction of sentence to be
filed within 120 days of the day his sentence was imposed (since
Tinsley did not appeal his judgement or sentence). (EN1) Tinsley's
judgement was signed on November 2, 1988, and his motion for
reduction of sentence was not filed until almost seven years later.
Accordingly, Tinsley asked the superior court to exercise its
authority under Alaska Criminal Rule 53 to relax the 120-day time
limit of Criminal Rule 35(a). Tinsley argued that 120 days was "far
too short to demonstrate ... that [a defendant] has earned a
[sentence] modification". Asserting that he had just completed
"five years of exemplary behavior", Tinsley argued that "blind
adherence" to Rule 35(a)'s time requirement would work injustice in
his case.
Superior Court Judge Jay Hodges granted Tinsley's motion
to relax the 120-day time limit, thus allowing the judge to
entertain Tinsley's underlying motion to modify his sentence to an
SIS. Judge Hodges then issued an order that both retroactively
converted Tinsley's two sentences to suspended impositions of
sentence and, at the same time, set aside Tinsley's convictions
because he had successfully completed his just-imposed SIS
probation:
IT IS HEREBY ORDERED that the original
sentence in this case is modified to a Suspend-
ed Imposition of Sentence on condition that the
defendant serve two years in custody followed
by a period of five years of supervised proba-
tion.
IT IS FURTHER ORDERED that, the defendant
having served his incarceration and completed
the probationary period, the convictions in
this case are SET ASIDE.
The State appeals this decision. The State argues that
the superior court had no authority to give Tinsley a retroactive
SIS after Tinsley had already been sentenced and had already
completed that sentence. In the alternative, the State argues that
the superior court abused its discretion when it allowed Tinsley to
file his motion almost seven years after his original sentencing.
We do not reach the State's first argument because we agree that,
under the facts of this case, it was an abuse of discretion for
Judge Hodges to employ Criminal Rule 53 to relax the 120-day time
limit specified in former Criminal Rule 35(a).
Under Criminal Rule 53, any of the criminal rules can be
"relaxed or dispensed with ... in any case where it [is] manifest
to the court that a strict adherence to [the rule] will work
injustice." Judge Hodges did not state why he decided to allow
Tinsley to file his motion seven years late, nor did the judge ever
make an explicit finding that adherence to the 120-day time limit
would work injustice in Tinsley's case. We assume that Judge Hodges
implicitly adopted the sole argument contained in Tinsley's motion
to relax the time limit. Tinsley argued that the time limit
specified in former Criminal Rule 35(a) was "far too short" to allow
defendants to demonstrate that they had "earned a modification" by
becoming rehabilitated.
This court has indicated that a defendant might seek
reduction of his or her sentence under Criminal Rule 35(a) based on
the defendant's progress toward rehabilitation since the time of
sentencing. Fowler v. State, 766 P.2d 588, 591 n.2 (Alaska App.
1988). This court has also indicated that such a defendant might
invoke Criminal Rule 53 to seek relaxation of the Rule 35(a) time
limit. Id. However, in prior cases construing a trial court's
authority to relax Criminal Rule 35(a)'s time limit under Criminal
Rule 53, the Alaska Supreme Court has required a particularized
showing that circumstances beyond the defendant's control prevented
him or her from complying with the normal time limit.
For instance, in Thomas v. State, 566 P.2d 630, 639
(Alaska 1977), the supreme court upheld a trial court's refusal to
relax the time limit specified in Criminal Rule 35(a) because the
defendant failed to present "any proof that [he] intended to timely
ask for a reduction of his ... sentences or that he was in any way
frustrated in his efforts [by] the neglect or failure of his counsel
to take appropriate procedural measures to gain such relief." In
Jones v. State, 548 P.2d 958 (Alaska 1976), the court likewise
concluded that there was no justification for relaxing the time
limit of Rule 35(a). Explaining its decision, the court noted that
"within the appropriate time limit there was no new evidence upon
which to base a motion for reconsideration." 548 P.2d at 960 n.5.
That is, the supreme court faulted Jones for not presenting proof
that he could have brought a timely motion if circumstances had not
prevented or impeded him. Finally, in Taylor v. State, 564rs after
his sentencing because his attorney had failed to file a requested
sentence appeal. The supreme court found no basis for relaxing the
rule: the court noted that Taylor had failed to present "details
concerning the time and circumstances when Taylor made known to his
counsel his desire to appeal [his] sentence", and Taylor had failed
to explain what he did to "follow up ... such a request to appeal
during the ensuing 22 months". 564 P.2d at 1220-21.
By comparison, the supreme court ordered a relaxation of
Rule 35(a) in Wheeles v. State, 566 P.2d 1013 (Alaska 1977). In
Wheeles, the record showed that both the defendant and his attorney
made timely efforts to pursue a motion for reduction of sentence,
the factual basis for the defendant's motion arose during the time
period allowed by Rule 35(a), and, by excusable mistake, the
defendant's motion was filed one day late. 566 P.2d at 1015-16.
Returning to the present case, Tinsley's motion to relax
the 120-day time limit of former Criminal Rule 35(a) was not based
on any facts peculiar to his case or his situation. He did not
assert that he had been prevented from filing a timely motion. Nor
did Tinsley's argument for a sentence reduction rely on facts that
could have been presented within Rule 35(a)'s normal time limit.
Quite the contrary: Tinsley expressly argued (and Judge Hodges
apparently ruled) that the time limit specified in Criminal Rule
35(a) is generally insufficient to give defendants a real opportu
nity to demonstrate rehabilitation; thus, application of this time
limit works injustice on any defendant who achieves rehabilitation
after the expiration of the time limit.
In effect, Judge Hodges construed Rule 53 to authorize
abrogation of Rule 35(a)'s time limit whenever a defendant shows
that a legitimate ground for sentence reduction arose after the time
limit expired. We must reject this construction of the rule.
Rule 53 authorizes a court to take remedial action in the face of
clear injustice, but this authority must be exercised with due
regard for the wording and the policy of the rule to be relaxed.
The rule at issue here, Criminal Rule 35(a), allows a
sentencing judge a specific period of time to reconsider and
potentially reduce a criminal sentence. This authority can be
exercised even when there is no reason to reduce the sentence other
than the judge's decision to reconsider and show mercy. Thomas, 566
P.2d at 639 n.34. But the time limit in Rule 35(a) exists for a
reason. Even after the promulgation of Criminal Rule 35(a), the
general rule under Alaska law is that a sentencing court does not
have the power to retain jurisdiction over a criminal case in order
to modify the defendant's sentence in the future. Jones, 548 P.2d
at 959; Davenport v. State, 543 P.2d 1204, 1211 (Alaska 1975).
Judge Hodges's interpretation of Rule 53 in effect grants
the superior court nearly boundless continuing authority to reduce
a defendant's sentence þ or, as in Tinsley's case, to retroactively
suspend imposition of sentence and then set aside the defendant's
conviction þ upon a showing that the defendant has been rehabilitat-
ed. This is not the usual role of courts. In Fowler, 766 P.2d at
592, this court rejected an interpretation of former Criminal Rule
35(b) that would have allowed the superior court the same sort of
continuing sentencing jurisdiction.
Tinsley made no effort to prove that he was prevented from
filing a timely motion by circumstances beyond his control.
Moreover, Tinsley expressly relied on the assertion that his
rehabilitation occurred years after the imposition of his sentence;
Tinsley's motion did not rest on facts that could have been
presented in a timely manner. For these reasons, we hold that Judge
Hodges abused his discretion when he relaxed the time limit of
Criminal Rule 35(a).
The judgement of the superior court is REVERSED.
ENDNOTES:
1. A revised Criminal Rule 35 became effective on July 1, 1995
(the day after Tinsley filed his motion). See ch 79,  29-31 SLA
1995. Under the current version of Rule 35, a court may reduce a
defendant's sentence within 180 days of the distribution of the
written judgement, but the court may not reduce a defendant's
sentence "so as to impose a term of imprisonment that is less than
the minimum required by law". Criminal Rule 35(b)(3).
