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Jackson v State (08/31/2001) ap-1762
Jackson v State (08/31/2001) ap-1762
NOTICE: The text of this opinion can be corrected before the opinion
is published in the Pacific Reporter. Readers are encouraged to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIE K. JACKSON, )
) Court of Appeals No. A-7552
Appellant, ) Trial Court No. 4FA-99-826 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1762 August 31, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Richard D. Savell, Judge.
Appearances: Willie K. Jackson, pro se,
Seward, for Appellant. Timothy W. Terrell, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Willie K. Jackson appeals the dismissal of his application
for post-conviction relief. Jackson advances several reasons why
the superior court should not have dismissed his application, but,
with one exception, we conclude that none of his reasons is
meritorious.
In July 1993, Jackson was convicted of three counts of
third-degree misconduct involving a controlled substance. [Fn. 1]
The superior court sentenced Jackson to 3 years in prison with 18
months suspended. We affirmed Jackson's conviction and the supreme
court denied Jackson's petition for hearing. [Fn. 2] Jackson began
3 years of probation when he was released from prison on August 1,
1994. [Fn. 3]
In June 1995, Jackson was convicted of fourth-degree
misconduct involving a controlled substance for possessing cocaine.
[Fn. 4] The superior court sentenced Jackson to a 2-year
presumptive term. That sentence was stayed pending appeal. We
affirmed Jackson's conviction and the supreme court denied Jackson's
petition for hearing. [Fn. 5] While the sentence on Jackson's June
1995 conviction was stayed pending appeal, Jackson was convicted of
three offenses that occurred in August 1995: another felony count
of fourth-degree misconduct involving a controlled substance and two
misdemeanor counts of leaving the scene of an accident and driving
with a suspended license. [Fn. 6] Superior Court Judge Richard D.
Savell sentenced Jackson to a composite sentence of 3 years, 45 days
for these offenses. We affirmed Jackson's conviction but remanded
for resentencing on the misdemeanor counts. [Fn. 7] After
resentencing, Jackson's composite sentence remained the same.
Jackson appealed again and specifically contested a restitution
order. We vacated the restitution order but otherwise affirmed and
the supreme court denied Jackson's petition for hearing. [Fn. 8]
On February 5, 1996, Superior Court Judge pro tem Jane F.
Kauvar revoked Jackson's probation for his July 1993 drug
convictions and imposed the full 18 months of his suspended time on
those offenses. However, Judge Kauvar ordered Jackson to serve 1
year concurrent with, and 6 months consecutive to, the 3-year, 45-
day sentence imposed by Judge Savell for Jackson's August 1995
offenses.
Jackson was released on discretionary parole on February
17, 1999. In April 1999, Jackson filed this post-conviction relief
application claiming that the Department of Corrections (DOC) had
miscalculated his sentence and that he had served more than his
required time in prison. After filing his application, Jackson's
parole was revoked and he was re-incarcerated on May 11, 1999.
The State moved for summary disposition of Jackson's
application, claiming that Jackson had raised no genuine issues of
material fact and that his claims failed as a matter of law. On
June 24, 1999, Judge Savell dismissed Jackson's application for the
reasons advanced in the State's motion. Jackson appeals the trial
court's summary dismissal of his application.
Based on DOC's calculations, Jackson would have been
released on mandatory parole on June 4, 1999, if he had not been
released in February 1999 on discretionary parole, which was later
revoked. Jackson argues that DOC improperly calculated his good
time and as a result kept him incarcerated past December 27, 1998,
the date he should have been released on mandatory parole.
Jackson's claim that DOC miscalculated his good time
centers on DOC's treatment of the 18-month sentence that Judge
Kauvar imposed in 1996 for Jackson's violation of probation on his
1993 convictions. As we noted above, Judge Kauvar imposed a
partially consecutive sentence: 1 year concurrent with and 6 months
consecutive to the composite sentence Jackson received for his three
August 1995 offenses. Under AS 12.55.025(e), when a defendant is
sentenced for a new crime and faces revocation of probation for a
previous crime, the sentences must be imposed consecutively. [Fn.
9] To the extent that Judge Kauvar imposed Jackson's sentence
concurrently, that sentence was illegal. However, it is clear that
Judge Kauvar intended that Jackson serve 6 months of additional
imprisonment for his probation violation.
Under AS 33.20.010, any inmate sentenced to more than 3
days of imprisonment receives good-time credit equal to one-third
of that sentence. [Fn. 10] An inmate such as Jackson, who is
serving a composite sentence in excess of 2 years, must be released
on mandatory parole after serving that composite sentence minus good
time. [Fn. 11] The computation of the mandatory parole release date
is based on the inmate's aggregate sentence; that is, each term of
imprisonment is not separately offset with good time. [Fn. 12]
When DOC calculated Jackson's good-time credit, DOC added
the 6 months of consecutive time imposed by Judge Kauvar to his
other sentences (the 3-year, 45-day sentence for his August 1995
offenses and the 2-year presumptive sentence for his June 1995
conviction). Because Jackson's 1-year concurrent sentence did not
increase the length of his total sentence, DOC ignored that sentence
when calculating good time.
Jackson disputes DOC's method of calculating his good
time. First, he argues that the general rule articulated in Wilson
v. State [Fn. 13] and Callan v. State [Fn. 14] that an inmate's
mandatory parole release date (which is based on accumulated good
time) should be derived from the total length of an inmate's term
of imprisonment rather than each sentence does not apply in his case
because his sentences are not entirely consecutive. Second, he
argues that AS 33.20.010 should be interpreted to mandate good time
for concurrent sentences. Based on these two premises, he contends
that he should have received 6 months good-time credit for the 18-
month sentence imposed by Judge Kauvar even though 1 year of that
sentence was imposed concurrently. Moreover, he argues that he has
no additional time to serve as a result of Judge Kauvar's sentence
because his 6 months of good time credit eliminates the need to
serve the consecutive 6 months that she imposed.
The statute governing computation of good time does not
expressly state that good time is computed based on composite
sentences. The statute provides that an inmate convicted of "an
offense" and sentenced to "a term" of imprisonment is entitled to
a deduction of one-third of that term. [Fn. 15] Viewed in
isolation, the statute's use of "a term" might be read to suggest
that an inmate must receive good-time credits equal to one-third of
the sentence for each offense. When purely consecutive sentences
are involved, the result is no different than one-third of an
aggregate term of imprisonment. However, the statutes governing
mandatory parole and the discharge of inmates make clear that, for
purposes of calculating an inmate's release date, good time is not
offset against each separate sentence, as Jackson urges, but against
the composite sentence. The mandatory parole statutes provide that
an inmate whose "term or terms" of imprisonment exceeds two years
must be placed on mandatory parole for the term of good-time
deductions credited under AS 33.20. [Fn. 16] The discharge statute
provides that a prisoner must be released "at the expiration of the
term of sentence less the time deducted for good conduct." [Fn. 17]
Because an inmate is released only after serving all
pending sentences, good time must be deducted from the inmate's full
term of imprisonment. Read together, these statutes compel the
conclusion that an inmate serving more than one sentence receives
the benefit of good-time credits and is released on mandatory parole
only after serving two-thirds of that aggregate sentence. This was
the conclusion reached in Callan [Fn. 18] and Wilson, [Fn. 19] and
Jackson has offered no legal authority or policy rationale for
distinguishing his case because one of his sentences is partially
consecutive.
The question remains whether Jackson's 1-year concurrent
sentence should be included in the calculation of his good time.
This issue was not addressed in Callan and Wilson, which involved
only consecutive sentences. [Fn. 20] Because AS 33.20.010(a)
requires that good time be calculated based on an inmate's "term of
imprisonment" rather than an inmate's "sentence" and because
concurrent sentences do not affect the length of an inmate's "term
of imprisonment" the plain language of the statute suggests that
only consecutive sentences should be included in the computation of
good time. [Fn. 21]
Moreover, Jackson's argument is flawed because it rests
on the unstated assertion that a prisoner should receive separate
good time credit for each concurrent sentence. DOC calculated
Jackson's good-time credit by assessing his total time to serve (the
3 years, 45 days imposed by Judge Savell, plus the consecutive 6
months imposed by Judge Kauvar). Jackson would be entitled to an
earlier release date only if (1) Judge Kauvar's 18-month sentence
was reduced to 12 months to serve because of good-time credit, and,
at the same time (2) Jackson was additionally awarded more good-time
credit for simultaneously serving his other concurrent sentence (the
3-year, 45-day sentence imposed by Judge Savell). Prisoners are
entitled to good-time credit equal to one-third of their term of
imprisonment, but prisoners whose term of imprisonment comprises
multiple concurrent sentences do not earn good-time credit at a
multiple rate.
Jackson also argues that DOC's interpretation of the good-
time statutes violates the constitutional prohibition against double
jeopardy and his state and federal rights to due process and equal
protection. Because Jackson makes only conclusory assertions and
does not cite legal authority or explain how these rights were
violated, we conclude that Jackson has waived these claims. [Fn. 22]
Jackson next argues that the Parole Board was required to
discharge him from mandatory parole under AS 33.16.210. That
statute provides in relevant part:
(b) Notwithstanding (a) of this section,
the board may unconditionally discharge a mandatory parolee before
the parolee has completed two years of parole if the parolee is
serving a concurrent period of residual probation under AS
33.20.040(c), and the period of residual probation and the period
of suspended imprisonment each equal or exceed the period of
mandatory parole.[ [Fn. 23]]
Jackson argues that this provision should be construed as mandatory
because it does not guide the Parole Board in the exercise of its
discretion by providing some alternative to discharging a parolee
once the conditions outlined in the statute have been met.
This argument is without merit. The term "may" denotes
"permissive or discretionary authority and not a mandatory duty."
[Fn. 24] As the State points out, the statute provides the Parole
Board with two alternatives once the specified conditions are met:
it may discharge the parolee or not discharge the parolee. Moreover,
administrative regulations direct the Parole Board to
consider specific factors in making that determination. [Fn. 25]
If the Parole Board in exercising its discretion exceeds its
statutory authority or acts arbitrarily, Jackson's recourse is to
seek judicial review of the board's decision. [Fn. 26] In any
event, Jackson has not established that he should have been released
on mandatory parole or that he otherwise met the prerequisites of
the statute.
Next, Jackson argues that DOC made two errors in
calculating his prior service credits. First, Jackson argues that
three misdemeanor sentences (10 days each) that he served in October
and November 1995 should have run concurrently to his felony
sentences because the sentencing courts ordered him to "begin
serving time now" and because DOC did not have authority to "stop
Felony time which had already begun so that its balance would run
consecutive to the Misdemeanor time." Jackson has not submitted the
sentencing orders from those misdemeanor cases and thus has not
provided a record to review his claim that the sentences were
imposed concurrently. [Fn. 27] And while the State concedes that
Jackson should have served his misdemeanor sentences after his
felony sentences, any error was harmless because the length of his
overall term was unchanged. [Fn. 28]
Second, Jackson claims that DOC failed to credit him for
20 days of service on the sentence for his June 1995 conviction.
[Fn. 29] Jackson argues that his presentence report shows that he
should have received 25 days credit for time served before
sentencing when DOC actually credited him with only 5 days. The
State maintains that the time accounting sheet produced by DOC
explains their actions. This creates a question of fact that the
superior court must resolve. Because the issue cannot be decided
without resolving that issue of fact, the superior court erred by
granting the State's motion for summary disposition of Jackson's
application. Accordingly, we must reverse the superior court's
order dismissing the case insofar as it relates to Jackson's claim
that he did not receive proper credit for the time served before
sentencing.
Jackson next argues that the superior court erred in
rejecting his claim that the composite sentence for his August 1995
offenses should have been stayed under Appellate Rule 206(a)(1)
because he appealed his convictions to this court and because he was
released on discretionary parole while that appeal was pending. But
Jackson's basic claim is that DOC did not properly calculate his
release date. Appellate Rule 206(a)(1) does not operate to provide
any additional credit towards the service of the defendant's
sentence. A defendant who is released while an appeal is pending,
whether the defendant is released on bail conditions by the court
or is released by the Parole Board, does not receive credit towards
the service of his sentence whether on bail release or parole
release. Finally, Jackson argues that the superior court
violated Civil Rule 54 by signing the State's proposed order. Civil
Rule 54(a) provides that a judgment "shall not contain a recital of
pleadings." Jackson's argument fails for two reasons. First, the
adoption of a prevailing party's proposed order is permitted by the
civil rules. Civil Rule 52(a) requires the superior court "[i]n all
actions tried without a jury or with an advisory jury ... [to] find
the facts specially and state separately its conclusions of law."
However, a trial court may adopt attorney-prepared findings and
conclusions "so long as they reflect the court's independent view
of the weight of the evidence." [Fn. 30] Second, while the civil
rules require that judgments be set forth on a separate document
distinct from findings of fact or conclusions of law, the criminal
rules relating to post-conviction relief proceedings do not so
require. Criminal Rule 35.1(g) directs that: "The court shall make
specific findings of fact, and state expressly its conclusions of
law, relating to each issue presented. The order made by the court
is a final judgment." Because Rule 35.1(g) applies specifically to
post-conviction relief proceedings, it controls the form of
judgments in those proceedings over more general civil rules that
may be in conflict. [Fn. 31] We have considered Jackson's arguments
about the court's order in light of the civil rules and Criminal
Rule 35.1(g) and conclude that the superior court did not violate
these procedural rules.
Conclusion
The judgment of the superior court dismissing Jackson's
claim that he was not properly credited with 20 days credit for time
served before sentencing is REVERSED. In all other respects, the
judgment of the superior court is AFFIRMED.
In the Court of Appeals of the State of Alaska
Willie K. Jackson, )
) Court of Appeals No. A-07552
Appellant(s), )
v. ) Order
)
State of Alaska, )
)
)
Appellee(s). ) Date of
Order: 8/31/01
Trial Court Case # 4FA-99-00826CI
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
On consideration of the motion to publish the memorandum
opinion and judgment No. 4428, issued on August 1, 2001,
It is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 4428, issued on August
2, 2001, is Withdrawn and Opinion No. 1762 is issued in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Court of Appeals Judges
Central Staff
Trial Court Judge
Trial Court Appeals Clerk
Publishers
Distribution:
Timothy W Terrell, OSPA
Willie Jackson, pro se
FOOTNOTES
Footnote 1:
AS 11.71.030(a)(1).
Footnote 2:
See Jackson v. State, Memorandum Opinion and Judgment No.
3080 (Alaska App., March 1, 1995), petition for hearing denied,
Case No. S-7027 (Alaska Supreme Court, July 12, 1995).
Footnote 3:
See Jackson v. State, 926 P.2d 1180, 1183 (Alaska App. 1996).
Footnote 4:
AS 11.71.040(a).
Footnote 5:
See id. at 1191, petition for hearing denied, Case No. S-7875
(Alaska Supreme Court, December 20, 1996).
Footnote 6:
AS 11.71.040(a)(3)(A); AS 28.35.050(c); AS 28.15.291(a),
respectively.
Footnote 7:
See Jackson v. State, Memorandum Opinion and Judgment No. 3699
at 19-20 (Alaska App., November 19, 1997).
Footnote 8:
See Jackson v. State, Memorandum Opinion and Judgment No. 4207
at 9 (April 19, 2000), petition for hearing denied, Case No. S-9682
(Alaska Supreme Court, May 30, 2000).
Footnote 9:
See Callan v. State, 904 P.2d 856, 857 & n.3 (Alaska App.
1995); Jennings v. State, 713 P.2d 1222, 1223-24 (Alaska App. 1986).
Footnote 10:
AS 33.20.010(a), provides in relevant part:
Compu
tatio
n of
good time. (a) Notwithstanding AS 12.55.125(f)(3) and
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.
Footnote 11:
See AS 33.20.030, which provides in relevant part:
Disch
arge.
A prisoner shall be released at the expiration of the term of
sentence less the time deducted for good conduct.
AS 33.20.040(a) provides in relevant part:
Relea
sed
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.
Footnote 12:
See Wilson v. State, 944 P.2d 1191, 1192-93 (Alaska App. 1997);
Callan, 904 P.2d at 857-58.
Footnote 13:
944 P.2d 1191.
Footnote 14:
904 P.2d 856.
Footnote 15:
See AS 33.20.010(a).
Footnote 16:
See AS 33.16.010(a), (c); AS 33.20.040(a).
Footnote 17:
AS 33.20.030.
Footnote 18:
See 904 P.2d at 857-58.
Footnote 19:
See 944 P.2d at 1192-93.
Footnote 20:
It is worth noting that Callan was ordered to serve a
concurrent sentence, which was not included in DOC's computation of
his good time. See Callan, 904 P.2d at 856 & n.1. Callan did not
challenge this aspect of his sentence.
Footnote 21:
See AS 33.20.010(a), supra, note 10.
Footnote 22:
See Tenala, Ltd. v. Fowler, 921 P.2d 1114, 1121 n.10 (Alaska
1996).
Footnote 23:
Emphasis added.
Footnote 24:
Gerber v. Juneau Bartlett Mem'l Hosp., 2 P.3d 74, 76 (Alaska
2000).
Footnote 25:
See 22 AAC 20.280(d).
Footnote 26:
See Interior Alaska Airboat Ass'n, Inc. v. State, 18 P.3d 686,
689-90 (Alaska 2001).
Footnote 27:
See Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic
Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska 1979), modified
at 615 P.2d 1391 (Alaska 1980) (a party's failure to designate a
record to support the party's claims justifies a reviewing court in
deciding those claims against the party).
Footnote 28:
See Alaska R. Crim. P. 47(a) ("Any error ... which does not
affect substantial rights shall be disregarded.").
Footnote 29:
See AS 12.55.025(c) ("A defendant shall receive credit for time
spent in custody pending trial, sentencing, or appeal, if the
detention was in connection with the offense for which sentence was
imposed.").
Footnote 30:
Industrial Indem. Co. v. Wick Constr. Co., 680 P.2d 1100, 1108
(Alaska 1984); see also J.A. Bryant, Jr., Annotation, Propriety and
Effect of Trial Court's Adoption of Findings Prepared by Prevailing
Party, 54 A.L.R.3d 868 (1973) (citing cases in support of this
principle).
Footnote 31:
Cf. Waiste v. State, 808 P.2d 286, 289 (Alaska App. 1991).
