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Owen v. Alaska Dept. of Corrections (10/1/93), 859 P 2d 1308
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
BOB OWEN, )
) Supreme Court File
Appellant, ) No. S-5271
) Superior Court File No.
v. ) 3AN-92-5179 Civil
)
BERT MATSUMOTO, Assistant )
Classification Officer, ALASKA )
DEPARTMENT OF CORRECTIONS, )
TIME ACCOUNTING TASK FORCE, ) O P I N I O N
STATE OF ALASKA, )
)
Appellees. ) [No. 4006 -- October 1, 1993]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian C. Shortell, Judge.
Appearances: Bob Owen, pro se, Palmer.
Michael J. Stark, Assistant Attorney General,
Juneau, and Charles E. Cole, Attorney
General, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
Justices.
COMPTON, Justice.
This case presents the question whether the superior
court has appellate jurisdiction over a Department of
Corrections (DOC) sentencing calculation. The superior
court held it did not have such jurisdiction. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 1992, Bob Owen submitted a letter to Bert
Matsumoto, Assistant Classification Officer for DOC,
explaining that DOC miscalculated his two sentences
after he was resentenced in 1987.1 Matsumoto responded
that the Time Accounting Task Force determined that
none of Owen's claims had merit.
Owen filed a notice of appeal in the superior court
pursuant to Alaska Rules of Appellate Procedure
602(a)(2) and 602(b)(1), and AS 22.10.020(d).2 The
State moved to dismiss the appeal for lack of
jurisdiction. Superior Court Judge Brian C. Shortell
dismissed the appeal, stating that Owen's proper remedy
for a miscalculation of his sentence was to file for
post-conviction relief under Criminal Rule 35.1. This
appeal followed.
II. DISCUSSION
A. STANDARD OF REVIEW
This appeal requires an interpretation of
AS 22.10.020(d), which defines the superior court's
appellate jurisdiction. On questions of statutory
interpretation this court exercises its independent
judgment. Hertz v. Carothers, 784 P.2d 659, 660
(Alaska 1990).
B. THE SUPERIOR COURT DOES NOT HAVE APPELLATE
JURISDICTION OVER A DEPARTMENT OF CORRECTIONS
SENTENCE CALCULATION
Alaska Statutes 22.10.020(d) provides that the superior
court has jurisdiction "in all matters appealed to it
from a subordinate court, or an administrative agency
when appeal is provided by law." AS 22.10.020(d)
(emphasis added). In Hertz, we addressed whether the
superior court has jurisdiction under AS 22.10.020(d)
to review a DOC administrative decision. We held that
the Administrative Procedure Act, AS 44.62.010-.650,
does not provide an appeal from a DOC administrative
decision. Hertz, 784 P.2d at 660. Nor did we find any
other statutory provision providing for superior court
review of a DOC administrative decision. Id. Thus
there is no appeal provided for by law conferring
jurisdiction on the superior court to hear Owen's
appeal.
Nevertheless, Owen argues that his case falls under the
exception created by McGinnis v. Stevens, 543 P.2d 1221
(Alaska 1975), and Department of Corrections v. Kraus,
759 P.2d 539 (Alaska 1988), which concluded that a
superior court may exercise appellate review of inmate
disciplinary proceedings raising fundamental
constitutional questions. Owen claims that the time
calculation error has resulted in his serving a portion
of his 1978 sentence twice, thereby violating the
prohibition against multiple punishment in article I,
Section 9 of the Alaska Constitution. Alaska Const.
art I, 9; see U.S. Const. amend. V.
The State argues that a superior court's appellate
jurisdiction over DOC decisions is limited to major
disciplinary decisions which involve issues of
constitutional magnitude. In Kraus, we provided
several reasons for allowing appellate review of major
disciplinary proceedings where issues of constitutional
magnitude are raised:
First, in McGinnis we referred to the
judicial review of major disciplinary
proceedings as an appeal. Second, we agreed
with that aspect of the superior court
decision in McGinnis which stressed that the
review would be based on the tape recording
of the disciplinary proceedings. A review on
the record, as distinct from the de novo
reception of evidence, is characteristic of
appeals. Third, this court has consistently
shown a preference for reviewing adjudicative
decisions of an administrative agency by
means of an appeal. . . . Fourth, appellate
review should be less expensive and time
consuming than the proceedings suggested by
the state, each of which entails discovery
and evidentiary hearings.
Kraus, 759 P.2d at 540 (citations and footnotes omitted).
The State argues that in Owen's case, none of the
reasons we gave in Kraus for permitting review by an
administrative appeal is present. Specifically, the
State argues that there is an inadequate record on
which to provide review; therefore, the proper
procedure for review of Owen's claim is pursuant to a
request for post-conviction relief under Criminal Rule
35.1.3
We agree. However, we do not hold that judicial review
of DOC administrative decisions is limited to
disciplinary actions. Any alleged violation of
fundamental constitutional rights must be afforded
judicial review. However, Owen has not shown that
review by administrative appeal is the proper avenue
for judicial review of an alleged miscalculation of his
sentence. Owen has a right to have his sentence
calculation reviewed, but not by way of appeal to the
superior court.
III. CONCLUSION
The superior court was correct in determining that this
case does not fit the McGinnis and Kraus exceptions for
judicial review by administrative appeal of major
disciplinary proceedings involving fundamental
constitutional rights. DOC calculations of sentences
are not adjudicative proceedings producing records
reviewable on an administrative appeal. The dismissal
of Owen's appeal for lack of appellate jurisdiction is
AFFIRMED.
_______________________________
1. In 1978, Superior Court Judge S. J. Buckalew sentenced
Owen to 13 years with 3 years suspended for armed
robbery. In 1983 Judge Buckalew sentenced Owen on a
second robbery charge to a presumptive 15 years. In
November 1987 Judge Buckalew resentenced Owen on the
1978 and 1983 cases because a prior suspended
imposition of sentence, that did not result in a
conviction of record, had been improperly used to
enhance Owen's sentences. Judge Buckalew reduced
Owen's 1978 sentence to 7 years and the 1983 sentence
to a presumptive 10 years. Judge Buckalew did not
clarify whether Owen had satisfied his 1978 sentence
with the time that he had served as of the date of
resentencing.
2. Owen has filed an appeal of the superior court's
refusal to clarify his sentence. Owen v. State, No. A-
4708 (Alaska App., October 30, 1992). Owen also filed
a civil action for declaratory relief that his sentence
was miscalculated. Owen v. Rupp, No. 3PA-92-1353 Civ.
(Alaska Super. December 7, 1992) However, the only
question before the court at this time is whether the
superior court has appellate jurisdiction over DOC
calculations of sentences.
3. Criminal Rule 35.1 reads in part:
Post-conviction Procedure.
(a) Scope. Any person who has
been convicted of, or sentenced for, a crime
and who claims:
(1) that the conviction or the
sentence was in violation of the constitution
of the United States or the constitution or
laws of Alaska;
. . . .
(5) that his sentence has expired,
his probation, parole or conditional release
have been unlawfully revoked, or he is
otherwise unlawfully held in custody or other
restraint;
. . . .
(7) . . .; may institute a
proceeding under this rule to secure relief.
(b) Not a substitute for Remedies
in Trial Court -- Replaces All Other Remedies
for Challenging the Validity of a Sentence.
This remedy is not a substitute for nor does
it affect any remedy incident to the
proceedings in the trial court, or of direct
review of the sentence or conviction. It is
intended to provide a standard procedure for
accomplishing the objectives of all of the
constitutional statutory or common law writs.
Criminal Rule 35.1(b) does state that it "Replaces All Other
Remedies for Challenging the Validity of a Sentence."
The question whether Criminal Rule 35.1 is the only
proper procedure is not before the court. We do note
that Owen is not required to wait until he has been
imprisoned longer than he should have been in order to
challenge the sentence calculation under Criminal Rule
35.1. The sentence, if miscalculated, violates Owen's
constitutional rights from the time of the calculation
and he is entitled to have it corrected.
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