GODSOE v. STATE, A-9505 (Alaska App. 6-20-2007)

NOLAN GODSOE, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9505.Court of Appeals of Alaska.
June 20, 2007.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge, Trial Court No. 4FA-S98-535 CR.

Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION AND JUDGMENT
STEWART, Judge.

At the conclusion of the sentencing of Nolan Godsoe for second-degree assault, criminal possession of explosives, and third-degree assault,[fn1] Superior Court JudgePage 2
Charles R. Pengilly announced that he was imposing a composite 12-year term with 4 years suspended on all three convictions.

Years later, when Godsoe faced the last in a series of petitions to revoke his probation, and after Godsoe had pursued a sentence appeal in this court, Godsoe filed a “Motion to Clarify Sentence.” Godsoe contended that the court’s original sentencing comments were ambiguous and conflicted with the written judgment. This claim can be raised under Alaska Criminal Rule 35(a), because a judgment that does not conform to a judge’s oral pronouncement of a sentence is an “illegal sentence” for purposes of the rule.[fn2]

Even though Judge Pengilly announced that he imposed a 12-year term with 4 years suspended, Godsoe argued that a composite 11-year term with 3 years suspended is consistent with the court’s overall sentencing comments.

Judge Pengilly rejected Godsoe’s argument. We conclude that the judgment conforms with Judge Pengilly’s announced sentence.

Facts and proceedings

On February 22, 1998, Godsoe committed, in Judge Pengilly’s words, an “extraordinarily serious assault” on his girlfriend, threatened to blow up her home with dynamite, and assaulted his girlfriend’s adult daughter. The facts of Godsoe’s crimes are discussed in detail in Godsoe’s sentence appeal and we need not repeat them here.[fn3]

The grand jury indicted Godsoe for two counts of second-degree assault, one count of first-degree assault, two counts of kidnapping, one count of criminal possession of explosives, and one count of third-degree assault. In return for Godsoe’sPage 3
no contest plea to one count each of second-degree assault, criminal possession of explosives, and third-degree assault, the State agreed to dismiss the other charges. The plea agreement limited Judge Pengilly to imposing a composite term to serve of no more than 10 years, but permitted the imposition of additional suspended time.

Godsoe was sentenced under pre-2005 sentencing law. Because Godsoe had one prior felony conviction for purposes of presumptive sentencing, he faced a presumptive 4-year term for second-degree assault and for the explosives charge.[fn4] He faced a presumptive 2-year term for third-degree assault.[fn5] The court found three aggravating factors and one mitigating factor, so the court reviewed the Chaney[fn6] criteria to decide whether to depart from the presumptive term. After the court reviewed the factors, Judge Pengilly informed the parties: “I am . . . creating a composite sentence that I hope addresses all the concerns, and I am focusing only secondarily on the three composite elements.”

Judge Pengilly addressed the second-degree assault count first: “I think that that is a charge that merits an enhanced presumptive sentence of 5 years to serve. Based on the way I am going to add things up, I am only going to add 1 year of suspended time as to that charge.”

The judge turned next to the explosives charge. He found that the aggravating factors did not have the same impact and that the mitigating factor applied to this count. He concluded that the proper result was the “imposition of the presumptive term.” He imposed 6 years with 2 years suspended.Page 4

On the remaining count, third-degree assault, Judge Pengilly noted that Godsoe’s conduct in that offense was “factually hard to distinguish” from the explosives charge, and although he recognized that the offenses were separate and merited separate punishment, he did not see them as “meriting consecutive time.” He imposed 4 years with 1 year suspended on this count.

Godsoe’s case turns on Judge Pengilly’s next comment: “But given my inability to meaningfully distinguish [the explosives count] from [the third-degree assault count], I am going to run those two concurrently.”

The judge then continued his comments as follows:

As to the 5 years you are going to be serving on [second-degree assault] and the 4 years you are going to be serving on [the explosives count and the third-degree assault count concurrently], I think it is appropriate, given that it was one extended course of conduct, although there was a substantial break, the acts that you were convicted of performing were different, the victims were different, there was still certainly a connection between the two, and I think that justifies me in imposing some time to overlap.

What I am going to do is impose 1 year of the concurrent sentence on [the explosives count and the third-degree assault count], as concurrent with [the second-degree assault count]. I know it is confusing. What it adds up to, if I have got it right here, is 12 years, 4 suspended, 8 years to serve.

A few moments later, Judge Pengilly warned the defendant that, although he had imposed a “relatively lenient sentence” hoping that Godsoe would successfully address his alcohol problem, Godsoe could expect that he would be “doing the 4 years suspended” if he broke his probation by engaging in another alcohol-related act of violence.

DiscussionPage 5

Godsoe argues that Judge Pengilly’s comment that the term for the explosives count and the term for the third-degree assault count would run concurrently meant that the unsuspended and the suspended imprisonment must all run concurrently. Godsoe relies on two cases that interpret former AS 12.55.025, Griffith v. State[fn7] and Baker v.State.[fn8]

In Griffith, we stated that “where the sentencing judge has discretion to impose concurrent sentences [under AS 12.55.025, the judge] should make findings to justify the imposition of a consecutive sentence.”[fn9]
And Godsoe relies on our recognition in Baker that Griffith required “that a sentencing judge must specify that a sentence is consecutive in order to impose a sentence consecutively.”[fn10]

But we also recognized in Baker that a judge’s sentencing remarks taken as a whole can reflect an intent to impose consecutive sentences.[fn11] Judge Pengilly obviously focused on the term of unsuspended imprisonment that he was imposing for all three crimes. He imposed the 3 unsuspended years from the third-degree assault concurrently with the 4 unsuspended years from the explosives charge and thereafter referred to that concurrent imprisonment as a 4-year term. He then provided that 1 year imposed in the 5-year term for second-degree assault would run concurrently with the 4-year term of imposed imprisonment resulting in an 8-year term to serve.

Although Judge Pengilly did not expressly impose the 1 suspended year of imprisonment from the third-degree assault consecutive to the 2 suspended years of imprisonment from the explosives charge, that was his obvious intent in order to fashionPage 6
the composite 12-year term with 4 years suspended. He twice expressly announced that Godsoe’s composite sentence included 4 years of suspended imprisonment. Viewing all of Judge Pengilly’s sentencing remarks as a whole, he implicitly imposed the suspended imprisonment consecutively.

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] AS 11.41.210(a)(1), AS 11.61.240(a), and AS 11.41.220(a)(1)(A), respectively.

[fn2] See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984).

[fn3] Godsoe v. State, Alaska App. Memorandum Opinion and Judgment No. 4183 (Feb. 2, 2000), 2000 WL 123956.

[fn4] AS 11.41.210(b), AS 11.61.240(b)(2), and former AS12.55.125(d)(1).

[fn5] AS 11.41.220(d) and former AS 12.55.125(e)(1).

[fn6] State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

[fn7] 675 P.2d 662 (Alaska App. 1984).

[fn8] 110 P.3d 996 (Alaska App. 2005).

[fn9] Griffith, 675 P.2d at 664.

[fn10] Baker, 110 P.3d at 1002.

[fn11] Id. at 1002-03.Page 7

MANNHEIMER, Judge, dissenting.

The question presented in this case is whether Nolan Godsoe’s sentence included 3 years of suspended imprisonment or 4 years.

Godsoe was convicted of three crimes: second-degree assault, unlawful possession of explosives, and third-degree assault. Superior Court Judge Charles R. Pengilly imposed the following sentences for these three crimes:

Offense Time to Serve Add’l Suspended Jail Time
second-degree assault 5 years 1 year
possession of explosives 4 years 2 years
third-degree assault 3 years 1 year

During his sentencing remarks, Judge Pengilly declared that Godsoe’s second and third sentences — that is, Godsoe’s sentences for unlawful possession of explosives and third-degree assault — were being imposed concurrently. When Judge Pengilly made this statement, he drew no distinction between the “time to serve” portions of the two sentences and the suspended portions of those sentences.

If Judge Pengilly had said nothing more on this subject, there would be no debating that Godsoe received a composite total of 4 years to serve and an additional 2 years suspended for these latter two crimes. In other words, there would be no debating that the two sentences for unlawful explosives possession and third-degree assault were imposed entirely concurrently — including the suspended portions of the two sentences.

This is, in fact, how Judge Pengilly treated these two sentences when he addressed the issue of Godsoe’s composite time to serve. Judge Pengilly stated that 1 year of Godsoe’s sentence for second-degree assault (the first sentence listed in the chart) would run concurrently with the concurrent sentences that Godsoe had received for the two other offenses. Thus, instead of having to serve 9 years (which would have been the case ifPage 8
Judge Pengilly had made the 5-year prison term for second-degree assault completely consecutive to the combined 4-year prison term for the explosives charge and the third-degree assault charge), Judge Pengilly stated that Godsoe would have to serve only 8 years.

But a few minutes later, when Judge Pengilly added up the various components of Godsoe’s sentence, the judge made a statement indicating that the suspended portions of Godsoe’s second and third sentences (i.e., Godsoe’s sentences for possession of explosives and third-degree assault) were being imposed consecutively, not concurrently. Specifically, Judge Pengilly stated: “What it [all] adds up to — if I’ve got it right, here — is 12 years [with] 4 suspended, 8 years to serve.” (Emphasis added)

This italicized language is what creates the ambiguity in the judge’s sentencing remarks.

If Godsoe’s sentences for possession of explosives and third-degree assault were completely concurrent, then Godsoe would have received a total of 2 years’ suspended imprisonment for these two offenses. And, adding these 2 years to the consecutive 1 year of suspended imprisonment that Godsoe received for second-degree assault, Godsoe’s total suspended imprisonment would be 3 years.

But Judge Pengilly’s reference to “4 [years] suspended” indicates that, even though he had earlier declared that Godsoe’s sentences for possession of explosives and third-degree assault were being imposed concurrently, the judge was in fact treating the suspended portions of these two sentences as consecutive — for a total of 3 years’ suspended imprisonment. This, added to the consecutive 1 year of suspended imprisonment that Godsoe received for second-degree assault, would bring Godsoe’s total suspended imprisonment to 4 years.

Under Alaska law, when there is an ambiguity in a judge’s oral sentencing remarks, the sentence must be interpreted in favor of the defendant unless the record discloses a contrary sentencing intention beyond a reasonable doubt.Page 9

This principle was stated by our supreme court in Chase v. State,479 P.2d 337 (Alaska 1971):

[A judge’s sentencing remarks] must be framed with clarity and accuracy in order to avoid the possibility of injustice and confusion. . . . [The] sentence imposed by a court . . . in a criminal case should be definite, unequivocal and unambiguous, so that both the defendant and the officials charged with executing the sentence will be fairly apprised of the intentions of the court. . . . [W]here a criminal sentence is ambiguous, it must be interpreted in favor of the individual who has been deprived of his liberty.

Chase, 479 P.2d at 339-340.

The supreme court recognized that “the elimination of all doubt in sentencing is frequently not possible”. Chase, 479 P.2d at 340. Thus, the law does not require sentencing remarks to be free of every conceivable “technical imperfection or uncertainty”. Id. Nevertheless, ambiguities in a judge’s sentencing remarks must be interpreted in the defendant’s favor unless “there [is] no reasonable doubt as to the intention of the sentencing court”. Id.

See Coates v. State, 721 P.2d 655, 657 (Alaska App. 1986), where this Court applied the rule in Chase. See also Baker v. State, 110 P.3d 996,1002 (Alaska App. 2005), where this Court reaffirmed the rule that when a sentencing judge’s sentencing remarks, taken as a whole, do not clearly show the judge’s intent to impose consecutive sentences, the defendant’s sentences must be deemed to have been imposed concurrently.

Based on my examination of Judge Pengilly’s sentencing remarks in Godsoe’s case, I am left in doubt as to whether (1) Judge Pengilly truly intended to impose a total of 4 years of suspended imprisonment, or whether (2) he inadvertently added in the extra suspended year of the third-degree assault sentence, forgetting that he had alreadyPage 10
declared that this sentence would be concurrent with Godsoe’s sentence for unlawful possession of explosives.

My doubt arises not only from the inconsistency of Judge Pengilly’s remarks on this subject, but also from Judge Pengilly’s aside, “if I’ve got it right, here.” This parenthetical comment, which Judge Pengilly made when he was announcing Godsoe’s composite sentence for all three offenses, leads me to suspect that the judge was adding up the numbers as he spoke, rather than simply reciting a pre-determined composite sentence.

In other words, the record is consistent with the possibility that Judge Pengilly made a mistake when he separately added the 2 years of suspended imprisonment from Godsoe’s possession of explosives sentence and the 1 year of suspended imprisonment from Godsoe’s third-degree assault sentence, rather than treating these portions of Godsoe’s sentence as a combined (concurrent) 2 years.

For these reasons, I am left with a reasonable doubt concerning Judge Pengilly’s sentencing intention — and I therefore am obliged to resolve that doubt in favor of Godsoe.Page 1