Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Paige v. State (06/18/2005) ap-1987
Paige v. State (06/18/2005) ap-1987
NOTICE
Memorandum decisions of this court do not create legal
precedent. See Alaska Appellate Rule 214(d) and
Paragraph 7 of the Guidelines for Publication of Court
of Appeals Decisions (Court of Appeals Order No. 3).
Accordingly, this memorandum decision may not be cited
as binding precedent for any proposition of law.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ADRIAN PAIGE,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals Nos. A-8663/8664
Trial Court Nos. 1JU-02-1077 CR
1JU-02-1509 CR
O P I N I O N: [No. 1987 - June 17, 2005]
Appeal from the Superior Court, First
Judicial District, Juneau, Larry Weeks,
Judge.
Appearances: Brant McGee, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
In this case, the sentencing judge did not specify
during his remarks at sentencing whether the defendants sentences
were concurrent or consecutive. We hold that, under former AS
12.55.025(e), when a sentencing judge does not specify whether a
defendants sentences are concurrent or consecutive, the sentences
must be deemed concurrent.
Factual background
Adrian Paige was convicted of multiple offenses arising
out of two separate criminal episodes.
The first incident took place on August 20, 2002. As a
result of this incident a jury convicted Paige of one class C
felony, criminal mischief in the third degree,1 and three
misdemeanors: assault in the fourth degree,2 resisting arrest,3
and misconduct involving weapons in the fifth degree.4
The second episode took place on October 25, 2002. As
a result of this incident, a jury convicted Paige of two
felonies: robbery in the second degree (a class B felony),5 and
theft in the second degree (a class C felony).6
Paige was sentenced for all of these crimes in a single
sentencing proceeding. For the first incident, Superior Court
Judge Larry Weeks sentenced Paige to 5 years of imprisonment with
2 years suspended for criminal mischief, 1 year of imprisonment
with 6 months suspended for assault and resisting arrest, and 90
days of imprisonment for the weapons misconduct. Judge Weeks did
not say whether he imposed these sentences concurrently or
consecutively.
For the second incident, Judge Weeks sentenced Paige to
10 years of imprisonment with 4 years suspended for the second-
degree robbery, and he sentenced Paige to 5 years of imprisonment
for the theft. Here, Judge Weeks stated his intention to impose
these sentences concurrently with each other. Thus, Paiges
composite sentence from this second incident was 10 years of
imprisonment with 4 years suspended.
Judge Weeks did not say whether Paiges sentences from
the first incident were consecutive to or concurrent with Paiges
sentences from the second incident.
But later, when Judge Weeks issued his written
judgements in Paiges case,
Judge Weeks specified that Paiges sentences on each count arising
from the first incident were to be served consecutively to one
another, and he further specified that Paiges sentences from the
first incident were to be served consecutively to his sentence
from the second incident. Thus, according to Paiges written
judgments, he received a composite sentence (from both cases) of
17 years and 90 days of imprisonment, with 7 years suspended.
Why we conclude that Paiges sentences must be
deemed concurrent with each other
Both the Alaska Supreme Court and this Court have
consistently held that a judges oral sentencing remarks control
over any conflicting provision in the later written judgment.7
We must therefore decide the legal effect of Judge Weekss
sentencing remarks where, with one exception, he failed to
specify whether Paiges sentences were consecutive or concurrent.
It is important to note, at the outset, that Alaska
sentencing law has recently changed. Until last year, the
statutory rules governing the imposition of consecutive and
concurrent sentences were found in AS 12.55.025(e) and (g). But
in its 2004 session, the Alaska legislature repealed these two
statutes and enacted a new statute, AS 12.55.127, that contains a
different set of rules.8 Paige was sentenced under the former
law, and our decision today deals with that former law. We
express no opinion on the meaning or proper application of the
new statute.
Paige relies on Griffith v. State9 for the proposition
that, under Alaska law until the 2004 amendment, if a sentencing
judge did not specify whether a sentence is imposed concurrently
or consecutively, the sentence will be deemed to have been
imposed concurrently.10
We recently addressed this same issue in Baker v.
State, __ P.3d __, Alaska App. Opinion No. 1980 (April 15, 2005),
2005 WL858938. In Baker, we reaffirmed the rule that when a
sentencing judge did not specify that a defendants sentences were
to be served consecutively, or when the judges remarks, taken as
a whole, did not clearly show the judges intent to impose
consecutive sentences, the sentences should be deemed to have
been imposed concurrently.11
As we noted earlier, former AS 12.55.025(e) and (g)
were in effect when Paige was sentenced. His case is therefore
governed by our decision in Baker.
The State argues that Judge Weekss sentencing remarks
demonstrate his intent to impose consecutive sentences. It is
true that, in his sentencing remarks, Judge Weeks referred to the
fact that Paige had a terrible record going back over a lot of
years. But after making this statement, Judge Weeks made only
general sentencing remarks discussing the factors that sentencing
judges must consider in imposing sentence. We have carefully
reviewed the record of the sentencing, and we conclude that Judge
Weekss sentencing remarks, viewed in context, do not clearly
establish his intention to impose consecutive sentences.
Therefore, under Baker, Paiges sentences must be deemed
concurrent.
The State also challenges the Griffith-Baker rule. The
State relies on our decision in State v. Andrews, where we
construed former AS 12.55.025(e) and (g) as establishing a
preference for consecutive sentences.12 The State suggests that
this statutory preference for consecutive sentences had the
effect of altering the traditional Alaska rule that sentences
would be deemed concurrent unless the sentencing judge specified
otherwise. The State argues that, under the former statutes,
when a sentencing judge was silent as to whether a defendants
sentences were consecutive or concurrent, those sentences should
be deemed consecutive.
However, the States sole argument on this point
consists of citing Judge Mannheimers concurring opinion in an
unpublished decision of this Court, Stotesbury v. State.13 In
that concurring opinion, Judge Mannheimer noted that the apparent
majority rule [in American jurisdictions] is that a sentencing
judge must take affirmative action to impose consecutive
sentences; if the sentencing judge is silent on this question,
the defendants sentences are deemed concurrent.14 Judge
Mannheimer then noted that it was possible to argue, given our
interpretation of AS 12.55.025(e) in State v. Andrews, that AS
12.55.025(e) now embodies the minority rule the rule that two
sentences should be deemed consecutive if the sentencing judge
fails to affirmatively express an intention to impose them
concurrently.15 But Judge Mannheimer found it unnecessary to
resolve this issue to decide the Stotesbury case.
In other words, Judge Mannheimers concurrence in
Stotesbury simply identified a potential argument concerning the
interpretation of former AS 12.55.025(e) and (g). Judge
Mannheimer reached no conclusion on that issue.
By citing that concurring opinion, the State shows only
that one member of this Court has previously recognized the
existence of the issue. The Stotesbury concurring opinion is not
authority for the States argument that Griffith and Baker were
wrongly decided. And the State has presented nothing else to
support its argument. Accordingly, we reject the States
contention that we misconstrued former AS 12.55.025(e) and (g) in
Griffith and Baker.
For all of these reasons, we conclude that we must
interpret Judge Weekss sentencing remarks as imposing all of
Paiges sentences concurrently.
Judge Weeks did not commit plain error when
he increased Paiges sentence based upon two
aggravating factors that Paige conceded
Paige was convicted of two felony offenses, criminal
mischief in the third degree (a class C felony), and robbery in
the second degree (a class B felony). Because Paige was a third
felony offender for purposes of presumptive sentencing, he faced
a 3-year presumptive term for the criminal mischief and a 6-year
presumptive term for the robbery.16
Paige conceded the existence of two aggravating
factors: that his prior criminal history included repeated
instances of assaultive behavior,17 and that, when he committed
the robbery, he was on bail release from another felony charge
(the criminal mischief).18
Based on Paiges concession, Judge Weeks found both of
these aggravating factors. And, based on the aggravating
factors, Judge Weeks increased Paiges sentences for both offenses
by adding an additional amount of suspended imprisonment on top
of the presumptive term. For the criminal mischief, Judge Weeks
imposed 5 years with 2 years suspended, and for the robbery,
Judge Weeks imposed 10 years with 4 years suspended.
In this appeal, Paige argues that this increase over
the applicable presumptive term violated the Sixth Amendment to
the United States Constitution as construed in Blakely v.
Washington.19 In Blakely, the Supreme Court held that, with the
exception of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt,
unless the defendant concedes that aggravating fact.20
Paige did not raise a Blakely challenge in the superior
court. He must therefore show plain error.
Paiges assertion of plain error founders on a
significant legal hurdle: Blakely does not forbid increases to
sentences based on aggravating factors that the defendant
concedes. Here, as we have explained, Paige conceded the two
aggravating factors that Judge Weeks relied on when he increased
Paiges sentences.
One might conceivably argue that, given the Supreme
Courts decision in Blakely, Paige should not be held to his
concession of these two aggravating factors. But Paige has
neither identified nor briefed this issue.
(However, it is still possible for Paige to pursue this
point by filing a motion to correct his sentence under Alaska
Criminal Rule 35(a), or by filing an application for post-
conviction relief.)
Conclusion
Because Judge Weekss remarks at Paiges sentencing do
not clearly establish his intention to impose consecutive
sentences, Paiges sentences must be deemed concurrent under
Alaskas former law on this subject. We direct the superior court
to amend the written judgments to reflect that Paiges sentences
are to be served concurrently.
Judge Weeks did not commit plain error when he
increased Paiges sentences for criminal mischief and robbery
based on aggravating factors that Paige conceded. For this
reason, we uphold Judge Weekss decision to impose additional
suspended imprisonment for these two offenses.
The judgments of the superior court are REVERSED as to
the imposition of consecutive sentences; they are AFFIRMED as to
the imposition of suspended imprisonment.
_______________________________
1 AS 11.46.482(a)(1).
2 AS 11.41.230(a)(1).
3 AS 11.56.700(a)(1).
4 AS 11.61.220(a)(1).
5 AS 11.41.510(a)(1)/(2).
6 AS 11.46.130(a)(2).
7 Whittlesey v. State, 626 P.2d 1066, 1067-68 (Alaska 1980);
Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991);
Figueroa v. State, 689 P.2d 512, 514 (Alaska App. 1984).
8 See Ch. 125 7, SLA 2004 and Ch. 125 3, SLA 2004.
9 675 P.2d 662 (Alaska App. 1984), overruled on other
grounds, State v. Andrews, 707 P.2d 900 (Alaska App. 1985), affd
723 P.2d 85 (Alaska 1986).
10 Id. at 664.
11 Baker, slip opinion at 12, 2005 WL858938 at *6-7.
12 707 P.2d at 910, affd (but not this specific holding),
723 P.2d 85 (Alaska 1986).
13 Alaska App. Memorandum Opinion and Judgment No. 4545
(March 13, 2002), 2002 WL386126.
14 Id. at 6, 2002 WL386126 at *3. See the discussion of
this point in People v. Sandoval, 974 P.2d 1012, 1014-16 (Colo.
App. 1998), and in Commonwealth v. Pfeiffer, 579 A.2d 897, 899-
900 (Pa. Super. Ct. 1990). Compare Loper v. Shillinger, 772 P.2d
552, 553 (Wyo. 1989), a case in which the court acknowledged the
usual presumption that sentences are concurrent but refused to
apply this presumption and in fact adopted the presumption that
sentences are consecutive when a defendant is sentenced at the
same time for a new crime and a parole revocation based on the
new crime. Finally, see King v. Maxwell, 184 N.E.2d 380, 381
(Ohio 1962), cert. denied 371 U.S. 869, 83 S.Ct. 133, 9 L.Ed.2d
106 (1962), a case from a jurisdiction that follows the minority
rule: Concurrent sentences ... require a positive act by the
[sentencing] court, and, in the absence of a declaration thereof
by the ... court, it is presumed [that] sentences will run
consecutively.
15 Stotesbury, Memorandum Opinion and Judgment No. 4545 at
7, 2002 WL386126 at *3.
16 AS 12.55.125(e)(2) and (d)(2).
17 AS 12.55.155(c)(8).
18 AS 12.55.155(c)(12).
19 ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
20 Blakely, ___ U.S. at ___, 124 S.Ct. at 2537 (citations
omitted).
