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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JOSHUA S. TWOGOOD, | ) |
| ) Court of Appeals No. A-9881 | |
| Appellant, | ) Trial Court No. 4FA-99-1370 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2194 November 21, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Ward Merdes, Merdes & Merdes,
Fairbanks, for the Appellant. Marilyn J.
Kamm, Assistant Attorney General, and Talis
J. Colberg, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Joshua S. Twogood appeals the superior courts denial of
his request for a clarification of his sentence. The underlying
issue in this appeal involves the question of how to calculate
the date on which a defendant becomes eligible to apply for
discretionary parole when (1) the defendant is simultaneously
sentenced for two or more crimes, and (2) the defendants terms of
imprisonment are either wholly or partially consecutive.
The precise issue is whether the defendants parole
eligibility date varies depending on which term of imprisonment
is designated the initial or primary sentence i.e., the sentence
to be served first, and which serves as the base for calculating
the remaining wholly or partially consecutive sentences.
As we explain in this opinion, a defendants parole
eligibility date does indeed hinge on which term of imprisonment
is considered the initial or primary sentence.
Alaskas current law on this subject specifically,
AS 33.16.090(b)(7) contains explicit rules for identifying the
primary sentence when a defendant is sentenced for two or more
crimes. But this law was enacted in 2005,1 and Twogoods offenses
pre-date this law.
Alaskas pre-2005 law did not contain a rule for
identifying the initial or primary sentence in situations like
Twogoods. And (as we explain below), when the superior court
sentenced Twogood, the court refused to identify which of his two
terms of imprisonment was the primary one. This leads us to
conclude that there is a flaw in Twogoods sentence a flaw that
makes it impossible to ascertain the date of Twogoods parole
eligibility. Thus, Twogood is entitled to the sentence
clarification he seeks.
Underlying facts
In 2000, Twogood was convicted of two
felonies: attempted murder and first-degree sexual
assault. For the attempted murder, Superior Court
Judge Mary E. Greene sentenced Twogood to 20 years
imprisonment with 5 years suspended (15 years to
serve). For the sexual assault, Judge Greene sentenced
Twogood to 14 years imprisonment with 4 years suspended
(10 years to serve).
Judge Greene declared that the time to serve
components of these two sentences would be partially
consecutive, so that Twogood would serve a total of
20 years in prison (with an additional 9 years
suspended). However, even though both the prosecutor
and the defense attorney asked Judge Greene to be more
specific about how Twogoods sentences were structured
i.e., whether Twogood was to serve 10 years for sexual
assault followed by a consecutive 10 years for
attempted murder or, conversely, 15 years for attempted
murder followed by a consecutive 5 years for sexual
assault Judge Greene refused to specify the precise
way in which Twogoods two sentences added up to the
composite 20 years to serve. Judge Greene concluded
that this kind of specificity was not required because
it made no difference to Twogoods total penalty. In
particular, Judge Greene stated that the precise
relationship of the two sentences did not affect
Twogoods parole eligibility.
After Twogood began serving these sentences,
the Department of Corrections notified him that he
would be required to serve 11 years of his composite
20-year term before he became eligible to apply for
discretionary parole and that his parole eligibility
date was therefore June 14, 2010.
(Twogood was arrested in connection with
these offenses on June 13, 1999, and he remained in
custody through his conviction and sentencing. Thus,
he effectively began serving his sentence on the date
of his arrest June 13, 1999. See AS 12.55.025(c).)
Twogood questioned whether he was required to
serve so much time before he was eligible to apply for
discretionary parole, but in October 2003 the Board of
Parole sent Twogood a letter confirming this June 2010
parole eligibility date.
Approximately two and a half years later,
Twogood hired an attorney, and this attorney filed a
motion in the superior court asking for clarification
of Twogoods sentence. In this motion, Twogoods
attorney argued that the order or structure of Twogoods
two sentences did, in fact, affect the calculation of
Twogoods parole eligibility date and, thus, the
superior court was required to clarify exactly how the
two sentences were structured.
In response, the State argued that there was
no ambiguity in Twogoods sentence and that [m]oreover,
the decision about how to calculate [a prisoners]
eligibility for discretionary parole is ... one that
the legislature has entrusted to the [Alaska] [P]arole
[B]oard and/or [the] Department of Corrections.
Because Judge Greene had retired, Twogoods
case was assigned to Superior Court Judge Randy M.
Olsen. Judge Olsen agreed with the State that Twogoods
sentence needed no clarification. Here are the
concluding paragraphs of his decision:
In essence, Mr. Twogood asks this Court
to do the Parole Boards job. Courts can
clarify sentences if there is ambiguity, but
the Judgment and Order of Commitment signed
by Judge Greene is quite clear. It
unequivocally states that Mr. Twogood was
sentenced to a composite sentence of 29 years
with 9 [years] suspended ... . ...
[Twogood] must serve the statutory mandatory
minimum periods of incarceration before he is
eligible for discretionary parole. Because
the Alaska Legislature has entrusted the task
of calculating parole eligibility dates to
the Alaska Parole Board, this Court will not
engage in that activity.
The sentence imposed by Judge Greene
needs no clarification. The Defendants
eligibility for discretionary parole is
controlled by statutes. The Defendants
Motion to Clarify is DENIED.
Twogood now appeals the superior
courts decision. In his brief to this Court,
Twogood renews his claim that there is a
crucial ambiguity in his sentence, and that
this ambiguity needs to be clarified because
the calculation of his parole eligibility
date hinges on the structure of his two
sentences (i.e., which term of imprisonment
is to be served first, and which is partially
consecutive).
Our request for the State to clarify its interpretation
of the pertinent parole eligibility statutes, and
the States response
After the briefing in this appeal was
complete, we concluded that Twogoods request for
sentence clarification was actually analogous to a
request for relief under Alaska Criminal Rule
35(a) the rule that authorizes a sentencing court
to correct an illegal sentence at any time.
Twogoods sentence is not illegal in the sense
that it exceeds the scope of sentences authorized for
his crimes. But when a court fails to specify an
essential component of a sentence, the sentence is
legally incomplete and it can be corrected on the
motion of either party. See Christensen v. State, 844
P.2d 557, 558-59 (Alaska App. 1993), and Figueroa v.
State, 689 P.2d 512, 514 (Alaska App. 1984). Here,
Twogood argues that Judge Greene failed to specify an
essential component of his partially consecutive
sentences: to wit, which term of imprisonment was the
initial or primary one, and which was secondary (i.e.,
the one that is partially concurrent with, and
partially consecutive to, the initial or primary
sentence).
To determine whether Twogoods sentences are
indeed missing an essential component, we have to
decide whether Twogood is correct in his underlying
assertion about parole eligibility i.e., his assertion
that the structure of his terms of imprisonment affects
the calculation of his parole eligibility date.
If Twogood is correct that his parole
eligibility date hinges on which of his terms of
imprisonment is to be served in full and which one is
partially concurrent, then Twogoods sentence is legally
incomplete. As we have explained, Judge Greene refused
to clarify this matter and, if Twogood is correct, the
extent of his criminal liability remains unsettled
without this clarification. On the other hand, if
Twogoods parole eligibility date is the same regardless
of how the superior court might have structured his two
sentences, then Twogoods sentence would be complete for
purposes of Criminal Rule 35(a).
Although the parties briefs addressed this
issue in general terms, neither brief contained a
detailed analysis of the pertinent parole statutes and
an explanation of why the structure of Twogoods
sentences either did or did not make a difference to
his parole eligibility date. We therefore began
exploring this legal question on our own. Our research
indicated that the structure of Twogoods sentences
might indeed make a difference in the calculation of
his parole eligibility date.
The beginning point of our analysis is the
fact that, under Alaska law, a defendant who is
sentenced for two or more crimes and who receives
wholly or partially consecutive sentences does not
become eligible to apply for discretionary parole until
the defendant has served a specified portion of each
sentence. Under both Alaskas current parole law and
the earlier (pre-2005) version that applies to Twogood,
the calculation of these requisite portions hinges on
several factors. One critical factor is the
identification of one of the defendants sentences as
the initial or primary sentence because there is one
method for calculating the requisite portion of the
defendants initial or primary sentence, and another
method for calculating the requisite portions of the
defendants other sentences.
(In general, defendants who receive two or
more wholly or partially consecutive felony sentences
do not become eligible to apply for discretionary
parole until they have served (a) the requisite portion
of their initial or primary term of imprisonment,
calculated as if that sentence had been the only one
imposed, plus (b) additional (but generally smaller)
portions of their other consecutive or partially
consecutive terms of imprisonment. These portions vary
according to the class of the felony, whether the
defendant was subject to a mandatory minimum term,
whether the defendants sentence was presumptive or not,
and whether the sentencing judge imposed a restriction
on parole eligibility under AS 12.55.115.)
If Twogood had been sentenced under Alaskas
current law, Twogoods eligibility for parole would be
governed by AS 33.16.090(b) as re-written in 2005.
Subsection (7) of this statute contains the rules for
calculating the parole eligibility of defendants who
receive consecutive or partially consecutive sentences.
Under this subsection, a prisoner whose sentences are
wholly or partially consecutive becomes eligible for
discretionary parole when the prisoner has served the
longest term yielded by the following three
calculations:
(A) the composite total of any mandatory
minimum sentence or sentences[,] ...
including [mandatory consecutive terms
imposed under] AS 12.55.127;
(B) any [minimum] term set [by the
sentencing judge] under AS 12.55.115; or
(C) the amount of time [to qualify for
parole eligibility] under [subsections] (1)
(5) of [AS 33.16.090(b)] for the sentence
imposed for the [defendants] primary crime
[as that term is defined in AS 12.55.127],
had that been the only sentence imposed, plus
one-quarter of the composite total of the
active term of imprisonment imposed as
consecutive or partially consecutive
sentences ... for all [of the defendants]
crimes other than the primary crime.
Under this current scheme, Twogoods
parole eligibility would be governed by
subsection (C), which directs the Parole
Board to identify Twogoods primary crime
under the rules specified in AS 12.55.127.
Twogood would become eligible to apply for
parole after serving the sentence for this
identified primary crime, plus one-quarter of
the consecutive portion of his other
sentence.
(Under AS 12.55.127(d)(4), a
defendants primary crime is the crime for
which the superior court impose[d] the
longest active [i.e., non-suspended] term of
imprisonment. If the defendant received the
same amount of unsuspended imprisonment for
two or more crimes, the defendants primary
crime is the one designated as primary by the
sentencing court.)
Because Twogood committed his
crimes in 1999, his parole eligibility is not
governed by the current statutes, but rather
by the pre-2005 version of the statutes.2
But under the pre-2005 versions
of AS 33.16.090 and AS 33.16.100, as
supplemented by 22 AAC 20.055 075, the
calculation of Twogoods eligibility date
again seems to hinge on which of Twogoods
sentences is his initial or primary sentence.
The problem is that the pre-2005 statutes
apparently do not contain a rule for
identifying which of Twogoods sentences is
the initial or primary one.
In order to give the State an
opportunity to clarify its position on these
matters (in case we had overlooked a
clarifying statute or regulation, or we had
misinterpreted the ones we found), we asked
the State to respond to a series of five
questions about how the Department of
Corrections would, under the pre-2005 law,
calculate the parole eligibility date of a
prisoner who received partially or wholly
consecutive sentences for attempted murder
and first-degree sexual assault.
For present purposes, our Questions
3 and 4 were the most important ones. In
these two questions, we asked the State to
explain the parole eligibility calculation
for the two different ways in which Twogoods
sentence might be structured:
Question 3: Suppose that Twogood had
received the following two sentences: (1)
attempted murder: 15 years to serve; (2)
sexual assault: 10 years to serve, with 5
years of this sentence consecutive to the
attempted murder sentence and 5 years of this
sentence concurrent with the attempted murder
sentence. How long would Twogood have to
serve before becoming eligible for parole?
Question 4: Suppose that Twogood had
received the following two sentences: (1)
sexual assault: 10 years to serve; (2)
attempted murder: 15 years to serve, with 10
years of this sentence consecutive to the
sexual assault sentence and 5 years of this
sentence concurrent with the sexual assault
sentence. How long would Twogood have to
serve before becoming eligible for parole?
The States answers to Questions 3
and 4 confirmed our preliminary conclusion:
the structure of Twogoods sentence (i.e., the
order of his terms of imprisonment) makes a
significant difference in the calculation of
his parole eligibility date.
The States response to Question 3:
In its response to Question 3, the State
explained that if Twogoods attempted murder
sentence is considered to be the initial one
that is, if Twogood was ordered to serve 15
years for attempted murder, followed by a
consecutive 5 years for sexual assault he
would have to serve 90 months in prison
before becoming eligible to apply for
discretionary parole.
According to the State, this
calculation has two steps. First, Twogood
would have to serve the 5-year mandatory
minimum term of imprisonment for attempted
murder,3 or one-third of the total 15 years
to serve that he received for this crime
which, in Twogoods case, would be the same 5
years. Thus, Twogood would have to serve 60
months of his attempted murder sentence
before becoming eligible to apply for parole.
Next, because Twogood faced an 8-
year presumptive term for first-degree sexual
assault, his 10-year sentence for that crime
is divided into two parts: the 8-year
presumptive term, and a 2-year increment
based on aggravating factors.
Because (under our hypothetical) 5
years of this sexual assault sentence are
concurrent with the attempted murder
sentence, the State counts the first 5 years
of Twogoods 8-year presumptive term as being
served concurrently with Twogoods attempted
murder sentence. This means that, of the 5
consecutive years that Twogood received for
the sexual assault, the first 3 years are the
remainder of his 8-year presumptive term and
the next 2 years are the increment. Under
the statutes, Twogood would be required to
serve two-thirds of the presumptive portion
(i.e., two-thirds of 3 years, or 24 months)
plus one-quarter of the increment (i.e., one-
quarter of 2 years, or 6 months).
Thus, all told, if Twogoods
sentences are structured in this manner, he
would not be eligible to apply for
discretionary parole until he served a total
of 90 months: 60 months for the attempted
murder, plus 30 months for the consecutive
portion of the sexual assault sentence.
The States response to Question 4:
In its response to Question 4, the State
explained that if Twogoods sexual assault
sentence is considered to be the initial one
that is, if Twogood was ordered to serve 10
years for first-degree sexual assault,
followed by a consecutive 10 years for
attempted murder he would only have to serve
70 months in prison before becoming eligible
to apply for discretionary parole.
Again, according to the State, this
calculation has two steps. First, because
Twogood faced an 8-year presumptive term for
first-degree sexual assault, his 10-year
sentence for that crime is divided into two
parts: the 8-year presumptive term, and a
2-year increment based on aggravating
factors. To become eligible to apply for
parole under this sentence, Twogood would be
required to serve two-thirds of the 8-year
presumptive portion (i.e., 64 months) plus
one-quarter of the 2-year increment (i.e.,
6 months) a total of 70 months.
With respect to Twogoods partially
consecutive sentence for attempted murder,
Twogood would have to serve 60 months of this
sentence before becoming eligible to apply
for parole. Again, the requisite portion is
60 months because 60 months (i.e., 5 years)
is both the mandatory minimum term of
imprisonment for attempted murder and one-
third of the total time to serve (15 years)
that Twogood received for this crime.
However, because (under our
hypothetical), the first 5 years of Twogoods
attempted murder sentence are concurrent with
his sexual assault sentence, Twogood would be
concurrently serving the requisite 60 months
of his attempted murder sentence while he
served the requisite 70 months of his sexual
assault sentence.
The result, as a practical matter,
is that Twogoods parole eligibility date
would not be affected by his attempted murder
sentence. After serving 70 months in prison,
Twogood would satisfy the parole eligibility
requirement for both of his sentences.
Why we conclude that Twogood is entitled to
clarification of his sentence
Having undertaken these calculations for us,
the State now concedes that Twogood is currently
eligible to apply for discretionary parole. In
fact, the State concedes that Twogood became
eligible to apply for parole almost two years ago
in mid-December, 2006.
However, in making this concession, the State
is taking advantage of the ambiguity in Twogoods
sentence and is construing that ambiguity in the
light most favorable to itself.
As we explained above, Twogood was arrested
in connection with these offenses on June 13,
1999, and he has remained in custody from then
until now. In other words, Twogood began serving
his sentences on June 13, 1999.
This means that the States conceded parole
eligibility date December 13, 2006 hinges on the
implicit assertion that Twogood was required to
serve 90 months (7 years) before becoming eligible
to apply for parole. But this would be true only
if Twogoods sentences are structured as described
in Question 3. In other words, the States
calculation of 90 months hinges on viewing
Twogoods 15-year term of imprisonment for
attempted murder as his initial or primary
sentence, and on viewing his 10-year sentence for
sexual assault as divided into two parts: 5 years
to be served concurrently with the attempted
murder sentence, and 5 years to be served
consecutively to the attempted murder sentence.
But if, on the other hand, Twogoods sentences
are structured as described in Question 4, then by the
States own calculation Twogood would only have to
serve 70 months (5 years, 10 months) before becoming
eligible to apply for discretionary parole. This means
that his parole eligibility date would have been April
13, 2005 more than a year and a half earlier than the
December 2006 date offered by the State in its
concession.
In other words, the States concession on this
point simply highlights the underlying problem in this
case. Because the superior court refused to clarify
the structure of Twogoods partially consecutive
sentences, there is an irresolvable ambiguity
concerning how to calculate Twogoods parole eligibility
date under the pertinent statutes. Twogoods parole
eligibility date can not be calculated without knowing
which of his terms of imprisonment is the initial or
primary one, and which is the partially concurrent one.
Thus, the structure of Twogoods sentences must now be
clarified to resolve this matter.
Under Alaska double jeopardy law, this
ambiguity must be resolved in Twogoods favor. See
Christensen v. State, 844 P.2d 557, 558 (Alaska App.
1993); Curtis v. State, 831 P.2d 359, 360-61 (Alaska
App. 1992); Love v. State, 799 P.2d 1343, 1346-47
(Alaska App. 1990); Joseph v. State, 712 P.2d 904, 906
(Alaska App. 1986) all holding that when an illegal
sentence needs to be corrected, it may not be increased
unless the increase is absolutely necessary to correct
the illegality.
To avoid an after-the-fact increase in
Twogoods sentence, we must choose the sentence
structure that favors Twogood the alternative that
gives him the earlier parole eligibility date. Based
on the States responses to our questions, Twogood has a
significantly earlier parole eligibility date if his 20-
year composite sentence is construed as a 10-year term
of imprisonment for first-degree sexual assault,
followed by a 15-year sentence for attempted murder of
which 5 years is concurrent with, and 10 years is
consecutive to, the sexual assault sentence.
Conclusion
The decision of the superior court is
REVERSED, and the superior court is directed to amend
Twogoods judgement so that it reflects the sentences
explained in the preceding paragraph.
_______________________________
1 See SLA 2005, ch. 2, 28.
2The current version of AS 33.16.090(b) applies only to
defendants [whose] offenses [were] committed on or
after March 23, 2005. SLA 2005, ch. 2, 33.
3Twogood committed the attempted murder in 1999, when the
mandatory minimum term of imprisonment for this crime
was only 5 years.
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