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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES A. CRAGG, )
) Court of Appeals No. A-6528
Appellant, ) Trial Court No. 4BE-91-1394 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1589 - May 8, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: Douglas Moody, Gingras & Moody,
Anchorage, for Appellant. Eric A. Johnson, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we are asked to decide whether the
superior court abused its discretion in refusing to strike disputed
factual allegations from a pre-sentence report. As explained in
more detail below, the State alleged that James A. Cragg had
violated his probation by failing to report to his probation officer
and by possessing alcohol, drugs, and drug paraphernalia. Cragg
admitted his failure to report, but he disputed the other
allegations. At the ensuing probation revocation hearing, the
superior court concluded that the State had failed to prove the
other allegations. Nevertheless, Cragg's probation officer later
prepared a pre-sentence report in which she asserted that Cragg was
in fact guilty of these other violations. Cragg objected to the
inclusion of these allegations in the pre-sentence report, but the
superior court refused to amend the report. We conclude that this
was error. Because these matters had been litigated and resolved
in Cragg's favor, the superior court was obligated under Alaska
Criminal Rule 32.1(e) to delete these unproved allegations from
Cragg's pre-sentence report.
We are also asked to decide whether the superior court
imposed an excessive sentence when it revoked Cragg's probation.
We conclude that Cragg has no right to appeal this sentence because,
even after the probation revocation, his total sentence is still
less than 2 years to serve. We therefore certify this portion of
Cragg's appeal to the supreme court under Appellate Rule 215(k).
Facts of the case
In 1992, James A. Cragg was convicted of fourth-degree
misconduct involving a controlled substance. [Fn. 1] He received
a sentence of 3 years' imprisonment with 2 years suspended (1 year
to serve). Cragg served his time in prison, and he was then
released on probation.
In 1996, the State filed a petition to revoke Cragg's
probation. The petition alleged that Cragg had failed to report to
his probation officer, and it additionally alleged that Cragg had
been found in possession of alcohol, cocaine, and drug parapher-
nalia. Cragg conceded that he had failed to report to his probation
officer, but he contested the other allegations. In particular,
Cragg asserted that any alcohol or drugs found in his house had been
put there without his knowledge. Cragg explained that he had been
living in a motel with his girlfriend, and that he had allowed a
friend to use his residence while he was away. At the end of the
adjudication hearing, Superior Court Judge Dale O. Curda found that
the State had failed to prove the alcohol and drug allegations.
Because Cragg conceded the probation violation of failing
to report, Judge Curda calendared a disposition hearing, and he
directed the Department of Corrections to prepare an updated pre-
sentence report for that hearing. In this updated report, Cragg's
probation officer took the opportunity to express her disagreement
with Judge Curda's adjudication of the alcohol and drug allegations.
She declared that Cragg's account of how the alcohol and drugs had
come to be in his house was "less than believable", and she asserted
that Cragg's failure to report "may have been [an attempt] to avoid
detection for marijuana, cocaine, and/or alcohol consumption and
possession".
Cragg objected to the inclusion of these assertions and
allegations in the pre-sentence report, and he asked Judge Curda to
strike them from the report. Cragg pointed out that his probation
officer was essentially saying that he was guilty of the other
alleged probation violations, even after those allegations were
litigated and resolved in Cragg's favor (that is, the superior court
found that the State had failed to prove the allegations). The
State responded that the pre-sentence report did not need to be
amended because the probation officer was merely giving her personal
opinion of the facts an opinion that the court was free to ignore.
Judge Curda declined to strike the disputed portions of
the pre-sentence report. He found that, in the main, the probation
officer had merely summarized the series of events that had brought
Cragg to court. Although the pre-sentence report contained the
probation officer's opinion about those events, the report also
acknowledged that the court had ruled against the State on the
allegations of drug and alcohol possession. Because Cragg was free
to offer argument concerning how much deference should be given to
the probation officer's evaluation of the facts, Judge Curda
concluded that there was no need to delete the portions of the
report that contained that evaluation.
The court was under a duty to strike the contested, unproved
allegations from the pre-sentence report.
The Alaska Supreme Court has repeatedly indicated that
only verified allegations of misconduct should remain in a
defendant's pre-sentence report. [Fn. 2] Because pre-sentence
reports often "follow the defendant long past the sentencing
hearing", care must be taken to ensure that the reports are as
accurate as possible. [Fn. 3] This policy is now codified in Alaska
Criminal Rules 32.1 and 32.2.
Under Criminal Rule 32.1(d)(1)(B), both the State and the
defendant are called upon to say whether they object to any
information in the pre-sentence report. When an objection is made,
the sentencing judge must determine, either at a pre-sentencing
hearing or at the sentencing hearing itself, whether the challenged
factual assertion has been properly proved. [Fn. 4] When the
sentencing judge concludes either that an assertion of fact is not
based on sufficiently verified information, or (if based on verified
information) that it has not been proved to the applicable standard
of proof, then the judge is to strike the assertion from the final
version of the pre-sentence report. [Fn. 5]
In Cragg's case, the pre-sentence report contained the
probation officer's assertions that Cragg had violated his probation
by possessing alcohol and drugs. These matters had already been
litigated and resolved in Cragg's favor. Because Judge Curda found
that the State had failed to prove its allegations that Cragg
possessed alcohol and drugs, and because Cragg objected to the
probation officer's contrary assertions, Judge Curda was required
under Criminal Rule 32.2(a)(3) to strike the unproved allegations
from the pre-sentence report. This is true even if the judge
concluded that he should or would disregard these allegations when
he sentenced Cragg for the probation violation of failing to report.
Under Rule 32.2(a)(3), a sentencing judge's duty to strike
controverted allegations from the pre-sentence report extends not
only to "[a]llegations that the judge finds are not established" but
also to allegations "that the judge determine[s] will not be
considered".
We therefore conclude that Cragg's case must be remanded
to the superior court with directions to delete the unproved
allegations from the existing pre-sentence report, thus creating an
expurgated version of the report which will be designated as the
"approved version" under Criminal Rule 32.2(a)(3).
We now turn to Cragg's attack on his sentence. As noted
above, Cragg was originally sentenced to 3 years' imprisonment with
2 years suspended. At the probation disposition hearing, Judge
Curda imposed 6 months of the previously suspended 2 years. Thus,
Cragg's composite time to serve is now 18 months.
When this court hears a sentence appeal from the
revocation of a defendant's probation, we assess whether the
defendant's new total time to serve is "clearly mistaken" in light
of the totality of the circumstances, including the defendant's
conduct since the time of the original sentencing. [Fn. 6] However,
Cragg's total time to serve is only 18 months. Because Cragg's
composite felony sentence does not exceed 2 years to serve, Cragg
has no right to appeal this sentence, and this court has no
jurisdiction to consider Cragg's claim that his sentence is
excessive. [Fn. 7] Cragg may, however, seek discretionary review
of his sentence from the supreme court under Appellate Rule
215(a)(2).
We REMAND this case to the superior court for amendment
of Cragg's pre-sentence report under Criminal Rule 32.2(a)(3). And,
having decided the issue in this appeal that lies within our juris-
diction, we now REFER the sentencing portion of Cragg's case to the
supreme court under Appellate Rule 215(k).
FOOTNOTES
Footnote 1:
AS 11.71.040(a)(1).
Footnote 2:
See Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977);
Thurlkill v. State, 551 P.2d 541, 544 (Alaska 1976).
Footnote 3:
Thurlkill, 551 P.2d at 544.
Footnote 4:
Criminal Rule 32.1(e); Criminal Rule 32.2(a)(2)(C).
Footnote 5:
Criminal Rule 32.1(e); Criminal Rule 32.2(a)(3).
Footnote 6:
See e.g., DeMario v. State, 933 P.2d 558, 562 (Alaska App.
1997); Evenson v. State, 894 P.2d 681, 683 (Alaska App. 1995).
Footnote 7:
See AS 12.55.120(a); AS 22.07.020(b).
