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Alvin v. State (03/08/2002) ap-1794
Alvin v. State (03/08/2002) ap-1794
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
MICHAEL M. ALVIN, )
) Court of Appeals No.
A-7908
Appellant, )
Trial Court No. 3AN-96-1121 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1794 March 8, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Tena M. Foster, Rupright &
Foster, LLC., Wasilla, 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.
Michael M. Alvin was convicted of criminally negligent
homicide, failure to render assistance at the scene of an injury
accident, and driving while intoxicated.1 When Superior Court
Judge Larry D. Card sentenced Alvin for these crimes, he declared
that [Alvins] permit to drive any vehicle is hereby revoked for
life. [He] shall not ever drive a motor vehicle again. However,
Judge Card said this during his announcement of Alvins conditions
of probation, and he in fact referred to the license revocation
as [Condition] Number 10.
The question is whether Judge Card imposed the
revocation of Alvins license as a condition of probation or as a
direct component of Alvins sentence. The answer makes a
substantial difference in the sentence. If the license
revocation is a condition of probation, then it operates only
during the 10-year term of Alvins probation. If, on the other
hand, it is a direct component of the sentence, then Alvins
drivers license is revoked for life.
We conclude that Judge Cards sentencing remarks
demonstrate beyond a reasonable doubt that he intended to bar
Alvin from ever again driving a motor vehicle a result that
could be achieved only if the license revocation was a direct
component of Alvins sentence. We thus conclude that Judge Card
made an objectively ascertainable mistake when he referred to the
license revocation as a condition of Alvins probation.
Underlying facts: the imposition of sentence, the
ensuing written judgement, and Alvins later motion to
modify the written judgement
On September 25, 1996, Alvin appeared for
sentencing in front of Judge Card. After Judge Card
announced the terms of imprisonment for Alvins two
felonies (negligent homicide and leaving the scene of
an injury accident), the judge then stated that he was
going to follow the recommendations [of the pre-
sentence investigator] and impose special conditions of
probation in addition to the general conditions ...
normally associated with probation.
Judge Card then began reciting these special
conditions of probation. The pre-sentence investigator
had proposed ten special conditions of probation, and
Judge Card initially started to impose conditions from
the list contained in the pre-sentence report. But
when he got to Condition Number 6 which read: Not
drive unless insured and provide proof of insurance to
the Probation / Parole Officer Judge Card said:
The Court: Number 6, not drive unless
youre insured. Let me take that back.
Excuse me. Disregard Number 6. Ill come
back to that in a second.
Judge Card then announced a new [Condition]
Number 6 that tracked the language of the pre-
sentence investigators proposed Condition
Number 7 (obtain a substance abuse evaluation
while in custody and participate in treatment
as recommended by the program). In other
words, Judge Card omitted the pre-sentence
investigators proposed Condition Number 6 and
skipped ahead to the next proposed condition,
re-numbering the list. Proceeding in this
fashion, Judge Card imposed all the remaining
conditions proposed by the pre-sentence
investigator. The judge numbered these
conditions 7, 8, and 9 (instead of 8, 9, and
10 the numbers given to them in the pre-
sentence report).
After he had done this, Judge Card
returned to the subject of Alvins drivers
license:
The Court: Number 10: Your permit to
drive any vehicle is hereby revoked for life.
You shall not ever drive a motor vehicle
again.
This statement concluded Judge Cards
imposition of sentence on Alvins felonies.
He then addressed Alvins remaining conviction
(the misdemeanor conviction for driving while
intoxicated) and imposed sentence on that
charge.
A few minutes later, Judge Card
returned to the subject of Alvins drivers
license. Again, he mentioned this subject
during a discussion of Alvins probation:
The Court: Mr. Alvin shall be on
probation at the conclusion of [his term of
imprisonment] for a period of 10 years. [I
have chosen] 10 years ... for maximum
protection of the public. And I sincerely
hope that Mr. Alvin never has any problems
again. My goal is that Mr. Alvin will never
get behind the wheel of a vehicle again,
because I feel that he is just too dangerous
for the public to be [taking that] risk.
Three weeks later, on October 14,
1996, Judge Card signed the written
judgement. This written judgement contained
only nine special conditions of probation;
these were the ten conditions proposed by the
pre-sentence investigator, minus the one
condition that Judge Card rejected the
condition that Alvin not drive unless he was
insured, which the pre-sentence investigator
had originally numbered 6. In this written
judgement, the revocation of Alvins drivers
license appears as a direct component of his
sentence: IT IS FURTHER ORDERED that
defendants drivers license is REVOKED for his
lifetime.
Four and a half years after this
written judgement was distributed, Alvin
filed a motion asking Judge Card to modify
this document. Alvin contended that the
written judgement did not correctly reflect
the sentence pronounced by Judge Card at the
sentencing hearing. He pointed out that
Judge Card had referred to the license
revocation as [Condition] Number 10 of Alvins
probation. Alvin therefore asked Judge Card
to amend the written judgement by deleting
the part that described the license
revocation as a direct component of Alvins
sentence and by adding the license revocation
to the list of Alvins conditions of
probation.
(As explained above, the practical
effect of this change would be to convert the
license revocation provision from a lifetime
revocation to a 10-year revocation.)
Judge Card declined to amend the
written judgement. The judge stated that he
had reviewed the official transcript of the
sentencing hearing and that this transcript
demonstrated that he clearly stated [his]
intention on the record that the defendant
never be permitted to get behind the wheel of
a vehicle again. ... [There is] no
ambiguity in [the courts] stated intentions
... .
Alvin now appeals Judge Cards
decision.
Judge Cards oral pronouncement of sentence clearly
demonstrates his intention to revoke Alvins
drivers license for life
Alvins true sentence is the one that Judge
Card pronounced at the sentencing hearing. If the
written judgement does not accurately embody that
oral sentence, then Alvin is entitled to have the
written judgement changed.2
(This can be done at any time under Alaska
Criminal Rule 35(a), because a non-conforming
written judgement is an illegal sentence for
purposes of that rule. See Bishop v. Anchorage,
685 P.2d 103, 105 (Alaska App. 1984).)
Because Alvin was convicted of negligent
homicide, leaving the scene of an injury accident,
and driving while intoxicated, Judge Card had the
authority to revoke Alvins drivers license as a
direct component of his sentence. See AS
28.15.181(a)(1), (a)(3), and (a)(5). However, as
noted above, Judge Card referred to the revocation
of Alvins license as probation condition number
10. Thus, the written judgement seemingly departs
from the judges oral pronouncement of sentence by
describing the license revocation as a direct
component of Alvins sentence. But the ultimate
issue is not Judge Cards wording, but rather his
intention.
In Shagloak v. State, 582 P.2d 1034 (Alaska
1978), the supreme court held that a written judgement
need not track the sentencing judges precise words if
the contemporaneous record (i.e., the record as it
existed at the time of sentencing) reveals that the
judge made an objectively ascertainable mistake when
describing the sentence.3 An objectively ascertainable
mistake exists when the judges description of the
sentence obviously conflict[s] with the [judges]
intention.4
In Shagloak, the supreme court spoke of
allowing an increase in the defendants sentence if the
contemporaneous record reveals an objectively
ascertainable mistake. This is a little misleading,
because the defendants true sentence is the sentence
that the judge intended to impose when sentence was
pronounced. When the judges sentencing intention is
clear, the act of amending the written judgement to
make it conform to the judges intention does not
constitute an increase in the sentence, but rather only
a correction of the written judgement.
The heart of the Shagloak rule is the supreme
courts recognition that the judicial power to amend the
written judgement in a criminal case raises substantial
double jeopardy problems. The double jeopardy clause
generally forbids a court from reconsidering a sentence
and altering it to the defendants disadvantage. If the
law allowed the court to amend a written judgement
whenever the sentencing judges original description of
the defendants sentence was ambiguous or unclear, or
whenever for any other reason the court later decided
that the written judgement did not accurately describe
the intended sentence, this power could easily serve as
a screen for a judges decision to reconsider the
defendants sentence and increase it. To make sure that
the power of amendment is not misused in this fashion,
the Shagloak decision established two rules to restrict
it.
First, when the court and the parties seek to
ascertain the sentencing judges intention, they are
confined to the contemporaneous sentencing record.
Neither the State nor the court can rely on the
sentencing courts subsequent explanation of its
subjective purpose.5 Second, any reasonable debate
regarding the sentencing judges intention must be
resolved in favor of the defendant. The written
judgement can be amended to reflect a more severe
sentence only when the contemporaneous record
establishes beyond a reasonable doubt that the
sentencing judge intended to impose this sentence.6
At Alvins sentencing, Judge Card announced
that Alvins drivers license was hereby revoked for life
... [so that he] shall not ever drive a motor vehicle
again. A few minutes later, Judge Card explained that
[his sentencing] goal [was] that Mr. Alvin [would]
never get behind the wheel of a vehicle again because
he concluded that Alvin [was] just too dangerous for
the public to be [taking that] risk.
True, Judge Card referred to the license
revocation as condition number 10 of Alvins probation,
but there are two reasons why it is clear that Judge
Card could not have intended the license revocation to
be a condition of probation.
First, a judges announcement that a
defendants drivers license is revoked does not appear
to be a condition of probation as that term is normally
understood. Probation is similar to a contract between
the court and the defendant.7 For this reason, even
though terms of probation are generally worded as
commands, they are in a real sense promises: the
defendant agrees to do something or agrees to refrain
from doing something. But here, Judge Card simply
declared that Alvins license was revoked for life. He
did not require Alvin to do anything or refrain from
doing anything. The judge simply announced a penalty
that he was imposing on Alvin.
(Compare this with the condition of probation
imposed in Baum v. State, where the judge ordered the
defendant not [to] apply for a hunting or guiding
license [during the entire 10-year] period of
probation.8 We held that this was a true condition of
probation and not a direct revocation of the defendants
license.9)
Second, Judge Card repeatedly declared that
he intended to revoke Alvins privilege to drive for the
remainder of his life. This intention could not
possibly be achieved through the conditions of Alvins
probation because the obligations imposed by the
conditions of probation expire when the term of
probation expires10, and Alvins term of probation is
only 10 years.
We therefore conclude that Judge Card made an
objectively ascertainable mistake when he referred to
the license revocation as a condition of Alvins
probation. Beyond a reasonable doubt, his intention
was to revoke Alvins drivers license for life. Every
time Judge Card mentioned the subject of Alvins drivers
license, he unambiguously expressed his intent to
revoke the license throughout Alvins lifetime so that
Alvin would never again drive a motor vehicle. Under
these circumstances, Judge Cards reference to a
probation condition is akin to clerical error for the
judges intention could only be achieved by making the
license revocation a direct component of Alvins
sentence.
Judge Card was therefore authorized to issue
a written judgement that seemingly varied from his
literal words at the sentencing hearing. When Judge
Cards contemporaneous remarks are viewed as a whole,
they unambiguously demonstrate that the judges
intention was to revoke Alvins drivers license for life
and thus to make the license revocation a direct
component of Alvins sentence rather than a condition of
his probation.
We have addressed similar situations in the
past situations where a sentencing judges unambiguous
intent was at variance with the wording the judge used
to describe the defendants sentence. In these
situations, we have construed the defendants sentence
so as to implement the judges clear intent despite the
judges apparently contrary wording.
For example, in Merry v. State, 752 P.2d 472
(Alaska App. 1988), the sentencing judge stated that
the defendants sentences would be concurrent, but the
rest of the judges sentencing remarks clearly
established that the judge intended to impose
consecutive sentences. We concluded that the judge
obviously misspoke when he used the word concurrent,
and we therefore held that the defendants sentences
were indeed consecutive.11
Again, in Coates v. State, 721 P.2d 655
(Alaska App. 1986), the sentencing judge originally
stated that 8 months of the defendants sentence would
be suspended, but the sentencing record unambiguously
showed that the judge [intended] to impose a total
sentence that would require Coates to serve three years
of unsuspended incarceration in addition to the time he
had spent in juvenile detention and that the judges
decision to suspend 8 months of Coatess sentence was
made only as a means of allowing credit for the eight
months Coates had spent in detention, which the judge
believed would not otherwise be allowed.12 We
therefore upheld the judges later action of amending
the sentence to delete the reference to 8 suspended
months, after it became clear that Coates was in fact
entitled to 8 months credit for the time he served in
juvenile detention.13 We stated:
Although the reimposed sentence may, on its
face, appear to be an increase over the term
originally imposed, the appearance is one of
form rather than of substance: the full
eight-month misdemeanor term has already been
served by Coates, as indeed, it had been at
the time of the original sentencing hearing.
Nor was the sentencing court precluded
by double jeopardy considerations from
rectifying its original mistake with respect
to credit for time served by reinstating the
initially suspended eight-month misdemeanor
term. Because the courts original sentencing
intent and its error with respect to the
applicability of credit for time served are
both apparent on the contemporaneous record
of the original sentencing hearing, the
imposition of a nominally more severe
sentence is not precluded by double jeopardy.
Coates, 721 P.2d at 658.
Another similar situation was presented in DeMario v.
State, 933 P.2d 558 (Alaska App. 1997). DeMario was being
sentenced for a probation violation. DeMario asked the judge to
impose all of his remaining jail time so that his probation would
end, and the record of the revocation hearing unequivocally
reveal[ed] that the sentencing judge intended to [grant DeMarios
request and] impose all previously suspended [jail time] that
remained outstanding against DeMario.14 Even though DeMario
correctly calculated that he had more than 1 year of remaining
jail time, the prosecutor mistakenly informed the judge that
DeMario had only 227 days of suspended jail time. Relying on the
prosecutors mistaken calculation, the judge declared that she was
sentencing DeMario to 227 days.15
Later, the judge realized that she had overlooked
several months of suspended jail time. She therefore modified
the judgement, increasing the original 227-day sentence by adding
these omitted months. On appeal, we upheld the sentencing judges
action:
The contemporaneous record of the
original probation revocation hearing ...
reveals that Magistrate Andree intended to
grant DeMarios request and impose all of his
remaining jail time[,] and that the 227-day
sentence Magistrate Andree imposed reflected
a miscalculation of DeMarios then-suspended
incarceration. Since this is unquestionably
an objectively ascertainable mistake, ... the
[written judgement] was subject to subsequent
correction under [Alaska Criminal] Rule 36
without violence to the double jeopardy
prohibition.
Id. at 561-62.
Finally, we note that the Alaska Supreme Court has
followed the same rule, ignoring a sentencing judges precise
words in order to implement the judges unambiguous intent. In
Cochran v. State, 586 P.2d 175 (Alaska 1978), the defendant was
convicted of two crimes: forgery and uttering a check with
insufficient funds. The sentencing judge imposed a normal
sentence for the forgery (i.e., a term of imprisonment with a
portion of it suspended), then gave the defendant a suspended
imposition of sentence (SIS) on the check charge. The judge
declared that the defendant would be on probation for 5 years on
the forgery charge, and that the defendants SIS probation [was]
to run consecutive to the [forgery sentence].16
The problem with this sentence (as worded) is that,
under Alaska law, SIS probation must begin on the day that
sentence is imposed. The sentencing judge simply could not make
the SIS probation consecutive to the forgery sentence, nor could
the sentencing judge otherwise cause that period [of probation]
to begin several years in the future.17
Nevertheless, the supreme court concluded (from the
judges contemporaneous sentencing remarks) that the judges
unambiguous intention was to place the defendant on probation for
eleven years following the defendants release from prison. To
implement the sentencing judges intention (as nearly as
possible), the supreme court ignored the fact that the judge had
described Cochrans SIS probation as lasting 5 years; instead, the
supreme court declared that the judges sentencing remarks would
be construed as imposing an SIS probation of 10 years (the
maximum term of probation allowed for Cochrans offense).18
Cochrans sentence had to be construed in this fashion, the
supreme court declared, because this construction of the sentence
was the way to most nearly achieve the sentencing judges
intent.19
Based on our analysis of the contemporaneous sentencing
record in Alvins case, and based on the decisions in these prior
cases, we conclude that Judge Card acted properly when he denied
Alvins request to modify the written judgement. That written
judgement accurately embodies Judge Cards unambiguous original
sentencing intent.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.130(a), AS 28.35.060(a), and AS 28.35.030(a),
respectively.
2 See Graybill v. State, 822 P.2d 1386, 1388 (Alaska App.
1991) ([When] a conflict exists between an orally
imposed sentence and a subsequently issued written
judgment, it is well-settled that the oral
pronouncement of sentence must govern.).
3 Id. at 1038.
4 Id.
5 Cornwall v. State, 902 P.2d 336, 339 (Alaska App. 1995).
See also Shagloak, 582 P.2d at 1038.
6 See Cornwall, 902 P.2d at 338 (citing Coates v. State, 721
P.2d 655, 657 (Alaska App. 1986); Chase v. State, 479 P.2d
337, 340 (Alaska 1971)).
7 Joubert v. State, 926 P.2d 1191, 1193 (Alaska App. 1996)
(quoting McRae v. State, 909 P.2d 1079, 1083 (Alaska App.
1996)).
8 24 P.3d 577, 579 (Alaska App. 2001).
9 See id. at 582.
10 See Kelly v. State, 842 P.2d 612, 614 (Alaska App.
1992).
11 Id. at 474.
12 Id. at 658.
13 See id.
14 Id. at 561.
15 See id.
16 Id. at 176.
17 Id.
18 See id. at 177-78.
19 See id.
