BRANDON v. STATE, A-9417 (Alaska App. 12-20-2006)

RICHARD BRANDON, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9417.Court of Appeals of Alaska.
December 20, 2006.

Appeal from the Superior Court, Third Judicial District, Anchorage, Craig F. Stowers, Judge, Trial Court Nos. 3AN-03-8229 CI, 3AN-87-2868 CR, 3AN-85-6704 CR.

Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John K. Bodick, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, STEWART, Judge, and ANDREWS, Senior Superior Court Judge.[fn*] [Mannheimer, Judge, not participating.].

[fn*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Richard Brandon was convicted in 1986 of misconduct involving a controlled substance in the fourth degree and attempted tampering with physical evidence. While out on bail pending appeal, he was charged with assault and kidnaping. He was convicted and sentenced for those crimes in 1987. The Alaska Department of Corrections aggregated all of Brandon’s sentences in order to calculate his good time credit. In 1988, the Department of Corrections forfeited approximately 150 days of good time credit Brandon had earned because of disciplinary violations he committed.

In 1989, this Court reversed Brandon’s conviction for kidnaping and assault. However, Brandon was reconvicted on these charges in 1990.

In 1999, the Department of Corrections, based on Brandon’s good behavior, decided to restore the 150 days of good time credit which Brandon had forfeited in 1988. But, in 2004, the D epartment of Corrections concluded that Brandon had not been eligible to have his 150 days of good time credit restored. The Department reasoned that the good time had been forfeited while Brandon was serving his 1986 convictions for misconduct involving a controlled substance and attempted tampering with evidence. The Department concluded that Brandon’s sentence for kidnaping and assault was not imposed until 1990 and that Brandon was not entitled to have good time credit that was forfeited on his former charges applied to these new convictions. Brandon filed an application for post-conviction relief challenging the Department’s refusal to reinstate his good time credit. The superior court upheld the Department’s decision and dismissed Brandon’s case.

We disagree with the superior court. W e conclude that Brandon’s sentences for misconduct involving a controlled substance and attempted tampering with evidence should be aggregated with his later sentences for assault and kidnaping in order to calculate Brandon’s eligibility for good time credit. To rule otherwise would penalize Brandon for successfully appealing his kidnaping and assault convictions. Therefore, Brandon was eligible to have the good time credit that had previously been forfeited applied to his aggregated sentence.

Factual and procedural background

In 1985, Brandon was charged with one count of misconduct involving a controlled substance in the fourth degree,[fn1] and one count of attempted tampering with physical evidence.[fn2] In 1986, Brandon was convicted on these charges following a plea of no contest. The trial court sentenced Brandon to 3 years for the misconduct involving a controlled substance charge, and imposed a concurrent 6-month sentence for the evidence tampering charge.

In 1987, while out on bail pending appeal of the 1986 conviction,[fn3]
Brandon was charged with one count of kidnaping and two counts of first-degree assault.[fn4] Brandon was convicted in a jury trial on the kidnaping and assault charges. The trial court sentenced him to a total of 35 years. By law, this sentence was consecutive to Brandon’s former sentences.[fn5]

For purposes of time accounting, the Department of Corrections aggregated Brandon’s sentence for kidnaping and assault with his former sentence. In 1988, as punishment for infractions which Brandon had committed, the Department forfeited 150 days of Brandon’s good time credit. Therefore, with credit for some good time but not the 150 days that were forfeited, Brandon completed his 3-year sentence for misconduct involving a controlled substance and attempted tampering with evidence on July 1, 1989.

On July 28, 1989, this Court reversed Brandon’s convictions for kidnaping and assault.[fn6] Although the Department of Corrections determined that Brandon had completed his sentence for misconduct involving a controlled substance and attempted tapering with evidence on July 1, 1989, Brandon remained incarcerated on the kidnaping and assault charges. In October of 1989, Brandon was released on bail pending his retrial.

In 1990, a jury reconvicted Brandon of kidnaping and assault. Brandon was sentenced to two consecutive 15-year sentences, with 5 years suspended. Brandon returned to custody to serve this sentence on June 14, 1990.

Initially, the Department of Corrections treated Brandon’s kidnaping and assault sentence as a new sentence because Brandon had completed his earlier sentence, been released on bail, and then was reconvicted. But Brandon filed a grievance and argued that, for purposes of time accounting, his 1990 sentence for kidnaping and assault should be aggregated with his completed 1986 sentence for misconduct involving a controlled substance and attempted tampering of physical evidence. The Department of Corrections agreed with Brandon, aggregated the sentences, and restored the approximately 150 days of Brandon’s previously forfeited good time. (The Department restored Brandon’s good time credit based on a policy of restoring forfeited good time to inmates who had gone for a specific period of time without committing further disciplinary infractions.)[fn7]

But in 2004, the Department reversed its position and determined that Brandon was not entitled to restoration of the 150 days of good time. The Department reasoned that Brandon’s good time credit had been forfeited on his earlier sentence. The Department concluded that when Brandon was returned to custody to serve his sentence for kidnaping and assault in 1990, he was serving a new sentence which was unconnected with his prior sentence. The Department concluded that Brandon could not have his good time, which had been forfeited on his earlier sentence, applied to his new unrelated sentence for kidnaping and assault.

Brandon filed an application for post-conviction relief. Brandon argued that his sentences should be aggregated so that he could receive credit for the previously forfeited good time. The State argued that the sentences should not be aggregated and therefore Brandon could not receive credit for the previously forfeited good time. Superior Court Judge Craig F. Stowers granted summary disposition for the State. Judge Stowers concluded that, under Alaska law, Brandon’s sentences could not be aggregated for purposes of determining his good time credit. Brandon appeals the superior court’s decision. We reverse.

Why we conclude that Brandon’s sentences should be aggregated for purposes of calculating his entitlement to good time credit

In Callan v. State,[fn8] we held that when a prisoner is serving two separate consecutive sentences, the prisoner’s good time credit should be calculated based upon a composite sentence for all of the prisoner’s convictions.[fn9] Under Callan, had Brandon not successfully appealed his convictions for kidnaping and assault, his sentence for those offenses would have been aggregated with his sentence for misconduct involving a controlled substance and attempted tampering with physical evidence. He would have served one aggregated sentence for purposes of calculating his eligibility for good time credit and release on parole.[fn10]

But Callan does not directly resolve whether Brandon’s sentences should be aggregated. The State points out that Brandon had finished serving his 1986 misconduct and tampering sentence several months before he returned to jail to begin serving his 1990 kidnaping and assault sentence. The State argues that, under these circumstances, Brandon should not be able to aggregate his sentence and receive credit for the good time that he had previously forfeited on his former charges.

We disagree with the State. If Brandon had not successfully appealed his kidnaping and assault conviction, Brandon’s sentences would have been aggregated for purposes of calculating good time credit. And Brandon would have been eligible to have his good time credit restored. The State’s position would penalize Brandon for succeeding in his appeal from the original 1987 kidnaping and assault conviction.

We have found two cases where courts, in situations similar to Brandon’s, have concluded that it is unfair to calculate a prisoner’s good time credit in a less favorable manner when this less favorable treatment results from the prisoner exercising his right to appeal. InState v. De Rosa,[fn11] the court rejected an argument by the State of New Jersey which is similar to the State of Alaska’s argument here.[fn12] The De Rosa court relied on North Carolina v.Pearce,[fn13] where the United States Supreme Court held that it would be a denial of due process to impose a lengthier sentence on a defendant if the lengthier sentence was designed to punish the defendant for having successfully appealed the original conviction.[fn14] Drawing onPearce, the De Rosa court concluded that it would be a denial of due process for the state to deny De Rosa credit for good time that he would have received had he not successfully appealed one of his convictions.[fn15] Similarly, in Cogdell v. Jackson,[fn16] a federal district court, applying the same statute upon which Alaska’s good time statutes are based,[fn17] held that applying good time credit less favorably to a sentence that was imposed after the defendant successfully appealed his original conviction violated the constitutional guarantee against double jeopardy.[fn18]

The Cogdell and De Rosa cases are consistent with the Alaska Supreme Court’s interpretation of the due process clause of the Alaska Constitution. In Shagloak v. State,[fn19] the Alaska Supreme Court held that the due process clause of Article I, Section 7 of the Alaska Constitution prohibits a court from imposing a more severe sentence on a defendant after that defendant has successfully appealed his original conviction for the same crime.[fn20] Although it is true that Brandon received a lesser sentence on the kidnaping and assault charges after he was convicted on retrial, that reduction in sentence was unrelated to the Department’s decision on how to calculate Brandon’s eligibility for good time credit. It seems clear that Brandon’s eligibility for good time credit should not be penalized by the fact that he successfully appealed his conviction for kidnaping and assault. The order of the superior court dismissing Brandon’s application for post-conviction relief is reversed.[fn21] The case is remanded for further proceedings.

REVERSED and REMANDED.

[fn1] AS 11.71.040(a)(3)(A).

[fn2] AS 11.56.610; AS 11.31.100(a).

[fn3] Brandon lost his appeal of the 1986 conviction and his sentence was affirmed. Brandon v. State, Alaska App. Memorandum Opinion and Judgment No. 1439 (July 1, 1987), 1987 WL 1357125.

[fn4] AS 11.41.300(a)(1)(C) and AS 11.41.200(a)(1), (a)(2), respectively.

[fn5] Former AS 12.55.025(e).

[fn6] Brandon v. State, 778 P.2d 221, 229 (Alaska App. 1989).

[fn7] See AS 33.20.060.

[fn8] 904 P.2d 856 (Alaska App. 1995).

[fn9] Id. at 857-58.

[fn10] See id. at 859 (Mannheimer, J., concurring) (explaining why sentences are combined to reach one composite sentence to calculate total time of state supervision).

[fn11] 753 A.2d 1164 (N.J.Super. App. Div. 2000).

[fn12] Id. at 1167-68.

[fn13] 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969),overruled on other grounds by Alabama v. Smith, 490 U.S. 794,109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

[fn14] Pearce, 395 U.S. at 725, 89 S.Ct. at 2080.

[fn15] De Rosa, 753 A.2d at 1167.

[fn16] 397 F. Supp. 362 (D.D.C. 1975).

[fn17] Alaska’s mandatory release scheme (AS 33.20.010) is derived from former federal statutes (18 U.S.C. §§ 4161-66); see Morton v.Hammond, 604 P.2d 1, 2 (Alaska 1979) (citing 1960 House Journal 194).

[fn18] Cogdell, 397 F. Supp. at 365-66.

[fn19] 597 P.2d 142 (Alaska 1979).

[fn20] Id. at 144-45.

[fn21] The State contends that, even if Brandon prevails in this appeal, he would only be entitled to 105 days of the previously forfeited good time. The trial court has not previously considered this issue and should address it on remand. The trial court should also resolve a statute of limitations issue previously unconsidered.