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before publication in the Pacific Reporter. Readers are requested to bring
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY M. WILSON, )
) Court of Appeals No. A-6102
Appellant, ) Trial Court No. 3KN-S95-770CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1546 - September 12, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: S. Joe Montague, Assistant
Public Defender, Kenai, and John B. Salemi, Public Defender,
Anchorage, for Appellant. Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Andrews, Superior
Court Judge, and Joannides, District Court Judge.
COATS, Chief Judge.
Over a several year period, Jerry M. Wilson was convicted
of several misdemeanor offenses and assault in the third degree, a
class C felony. Wilson was originally sentenced to five years'
imprisonment with three years suspended on the assault conviction,
but refused parole, and was ultimately sentenced to serve five
years of imprisonment. In a post-conviction relief action Wilson
challenged the Department of Corrections' calculations of awards of
good time. Superior Court Judge Jonathan H. Link granted the
state's motion to dismiss the post-conviction relief claim. Wilson
now appeals to this court. We affirm.
Wilson first contends that the Department of Corrections
erred in aggregating both his misdemeanor and felony sentences to
determine good time. Wilson contends that his misdemeanor
sentences should not have been aggregated to determine good time.
He argues that since the Department of Corrections erroneously
placed him on mandatory parole by counting his misdemeanor
convictions, he was required to serve extra time in prison when the
parole board revoked his parole and required him to serve his
accrued good time.
The statutes governing mandatory parole provide, in
relevant part:
Sec. 33.16.010. Parole. (a) A prisoner who is
serving a term or terms of two years or more is eligible for
mandatory parole.
. . . .
(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, if the term or terms of
imprisonment are two years or more.
33.16.900(8) "mandatory parole" means the
release of a prisoner who was sentenced to one or more terms of
imprisonment of two years or more, for the period of good time
credited under AS 33.20, subject to conditions imposed by the board
and subject to its custody and jurisdiction[.]
Pursuant to AS 33.20, [Fn. 1] which governs remission of sentences,
inmates with sentences of more than three days receive statutory
good time credits towards early release in the amount of one-third
off of their sentences. [Fn. 2] Thus, prisoners are released when
they have served their sentences minus good time credits. The
question of whether they are released and placed on mandatory
parole, or released unconditionally, is determined by the length of
their "term or terms" of imprisonment. Under AS 33.20.040(a), an
inmate whose "term or terms" of imprisonment exceeds two years is
placed on mandatory parole. On the other hand, an inmate whose
"term or terms" of imprisonment is less than or equal to two years
is not subject to mandatory parole, but is released unconditionally
(although he or she is still subject to probation, if probation is
imposed). This brings us to the critical inquiry in the instant
case: whether a prisoner's "term or terms" of imprisonment should
be aggregated to determine whether the total length of imprisonment
exceeds two years, or instead, whether an inmate should be placed
on mandatory parole only for each separate "term" of imprisonment
that exceeds two years.
The starting point in construing any statute is the
language of the statute itself. Helton v. State, 778 P.2d 1156,
1158 (Alaska App. 1989). It seems that the legislature's use of
the phrases "term or terms of imprisonment [of] two years or more"
in AS 33.20.040, and "one or more terms of imprisonment of two
years or more" in AS 33.16.900(8), indicates that a prisoner's
terms of imprisonment are to be aggregated under the statute.
Otherwise, it seems that the legislature would have employed the
phrase "term of imprisonment."
A review of AS 33.16, which governs parole adminis-
tration, reveals that nothing in the express language of the parole
administration statutes prohibits the Department of Corrections
from placing a person convicted of a misdemeanor on mandatory
parole. Further, the statute makes no distinction between
prisoners convicted of misdemeanors versus felonies. Instead, the
statute appears to focus on the total length of the inmate's
sentences to determine whether the inmate is subject to mandatory
parole.
Moreover, a review of the sentencing statutes, AS 12.55,
reveals that nothing in the language of those statutes prohibits
persons convicted of misdemeanors from being placed on parole. To
the contrary, AS 12.55.135, which governs misdemeanor sentencing,
contemplates the situation where a prisoner convicted of a
misdemeanor might be placed on parole:
(e) If a defendant is sentenced under
(c) or (d) of this section,
(1) execution of sentence may not be
suspended and probation or parole may not be granted until the
minimum term of imprisonment has been served[.]
Wilson recognizes that Alaska's good time and mandatory
parole statutes are based on former federal statutes. See Morton
v. Hammond, 604 P.2d 1, 2 (Alaska 1979). He also recognizes that
federal cases which interpret the former federal statutes hold that
consecutive sentences are to be aggregated to determine a person's
mandatory parole release date. However, he argues that we should
distinguish the federal cases because under the former federal
system a prisoner who had a longer sentence would accrue good time
at a more favorable rate. Therefore the federal cases, applying
the rule of lenity, were favorable to prisoners. However, we do
not believe that this is a valid reason to distinguish the federal
authority. We fail to see that there is any reason to distinguish
between a person who receives a five-year sentence on a felony
offense and a prisoner who receives a sentence of four years on a
felony offense and a consecutive one-year sentence on a
misdemeanor. The plain language of the statute and the statutory
history support treating these prisoners the same. This seems to
be sound policy.
In a cursory two-sentence argument, Wilson argues that
the Department of Corrections erred in refusing to give him credit
for good time which he had previously served on a parole
revocation. Wilson has failed to show that the Department of
Corrections did not give him full credit for good time which he
earned.
AFFIRMED.
FOOTNOTES
Footnote 1:
The relevant sections provide:
Sec. 33.20.010. Computation of good time. (a) Notwith-
standing AS 12.55.125(f)(3) and AS 12.55.125(g)(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[.]
Sec. 33.20.030. Discharge. A prisoner shall be released
at the expiration of the term of sentence less the time deducted
for good conduct. A certificate of deduction shall be entered on
the commitment by the warden, keeper, or the commissioner.
Sec. 33.20.040. Released Prisoner. (a) 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.
Footnote 2:
Subsections (1) and (2) of AS 33.20.010(a) provide two
exceptions to this general rule; neither is applicable to this
case.
