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Herrin v. State (06/18/2004) ap-1938
Herrin v. State (06/18/2004) ap-1938
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
PATRICK G. HERRIN, )
) Court of Appeals No.
A-8553
Appellant, )
Trial Court Nos. 3KN-97-1016 Cr
) and 3KN-97-
358 Cr
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1938 June 18, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Harold M. Brown, Judge.
Appearances: Patrick G. Herrin, in propria
persona, Spokane, Washington, for the
Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In December 1997, Patrick G. Herrin was convicted of
first-degree stalking and third-degree assault for acts of
domestic violence against his then-wife, J.H.. Herrin received a
composite sentence of 10 years imprisonment with 5 years
suspended, and he was placed on probation for 8 years following
his sentence of imprisonment. One of Herrins conditions of
probation prohibited him from having any contact, direct or
indirect, with his wife, J.H..1
In July 2000, while Herrin was serving his sentences
for these crimes, and shortly before he was scheduled to be
released on parole, Herrin wrote numerous threatening letters to
J.H.. Based on this conduct, the State indicted Herrin for first-
degree stalking and also petitioned the superior court to revoke
Herrins probation from his 1997 convictions.
Following a jury trial, Herrin was convicted of the new
count of first-degree stalking in March 2001. Based on this new
offense, the superior court revoked Herrins probation from his
two 1997 convictions and imposed an additional year to serve in
each case.2
In both of the written judgements revoking Herrins
probation from the 1997 convictions, the superior court wrote:
[Herrins] [p]robation is extended during
the period of time [that] the [petition for
revocation of probation] was pending[, that
is, from] 7/11/00 [to] 2/4/02.
In this appeal, Herrin contends that it was
unlawful for the superior court to include
this provision in the two judgements i.e.,
it was illegal for the superior court to toll
the running of Herrins probation during the
time that the petitions to revoke his
probation were pending because the judge
failed to explicitly order this tolling when
the judge orally pronounced Herrins
sentences.
Under Alaska law, when the terms of
a defendants sentence contained in the
written judgement differ from the terms of
the sentence announced orally at the
defendants sentencing hearing, the oral
sentence controls.3 But this rule applies
only to components of the sentence that are
within the sentencing judges discretion.
For instance, a sentencing judge
has no discretion regarding whether to limit
or expand a defendants eligibility for parole
by declaring the defendants sentence to be
presumptive or non-presumptive. That
categorization and the corresponding scope
of the defendants parole eligibility are set
by statute.4 Similarly, a sentencing judge
has no discretion regarding whether to grant
or deny a defendant credit for time spent in
jail before sentencing. That, too, is
determined by statute.5
Likewise, a sentencing judge has no
discretion on the question of whether a
defendants term of probation should be tolled
during the pendency of a petition to revoke
probation. In Gage v. State, 702 P.2d 646
(Alaska App. 1985), this Court held that if a
defendant is ultimately found to have
violated the conditions of their probation,
the running of the defendants term of
probation must be tolled during the time that
the petition was pending. (That is, the
total length of the defendants term of
probation must be extended by the amount of
time that the petition to revoke was
pending.) As Gage explains,
[When] a petition to revoke probation
formally charging a probationer with
committing a violation is filed and the court
subsequently determines that the alleged
violation was in fact committed, there can be
no legitimate justification for allowing the
probationer to claim credit for time served
on probation during the period between the
filing of the petition and its ultimate
adjudication.
Gage, 702 P.2d at 647-48.
Accordingly, it makes no difference
whether the superior court expressly
announced at the sentencing hearing that
Herrins term of probation was tolled during
the pendency of the petitions to revoke his
probation. This result is required by law.
(Under AS 12.55.090(b), the
superior court had the authority to reduce
Herrins total term of probation so as to
mitigate or negate the effect of this
required tolling. But to do this, the
superior court would have had to expressly
amend Herrins sentence.)
The judgements of the superior
court are AFFIRMED.
_______________________________
1 See Herrin v. State, Alaska App. Memorandum Opinion No.
4773 (October 15, 2003), pages 1-2, 2003 WL 22351623 at *1.
2 Id. at page 3, 2003 WL 22351623 at *1.
3 See Graybill v. State, 822 P.2d 1386, 1388 (Alaska App.
1991).
4 See Reyes v. State, 978 P.2d 635, 642-43 (Alaska App.
1999).
5 See Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995).
