MAHER v. STATE, A-8813 (Alaska App. 5-11-2005)

JAMES C. MAHER, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8813.Court of Appeals of Alaska.
May 11, 2005.

Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Trial Court No. 1KE-02-0520 CR.

Brant McGee, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.

Terisia K. Chleborad, 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.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

This case raises the issue of whether a sentencing judge can modify a written judgment to reflect the sentence that he intended to impose. We conclude that where the sentencing judge’s intent to impose a particular sentence is sufficiently clear from his oral remarks at the time of sentencing, the judge has the authority to modify the written judgment to reflect his original intent.

Factual background

James C. Maher entered a plea of guilty to a charge of theft in the second degree, a class C felony.[fn1] Maher appeared for sentencing before Superior Court Judge Michael A. Thompson along with two co-defendants, Knight and Watson. All the defendants had entered into a plea agreement with the State. The State had agreed that Knight and Watson would face a maximum term of imprisonment of 120 days. Because Maher had a more extensive prior criminal record, the State had agreed that Judge Thompson would sentence Maher to no more than 1 year of imprisonment and no less than 180 days. The parties left the issues of the amount of time to be suspended and probation conditions up to Judge Thompson.

Judge Thompson sentenced all three defendants at a single sentencing hearing on November 13, 2002. During the sentencing hearing, the parties and Judge Thompson agreed that Maher had the most serious prior record of the three co-defendants.

In sentencing the defendants, Judge Thompson observed that a major goal of sentencing in property cases was to obtain restitution for the lost property. He explicitly set out his intent to impose suspended sentences as well as a period of incarceration:

In terms of deterring these individual defendants, a suspended sentence works best for that. Putting them in jail doesn’t deter them, the threat to put them in jail in the future deters them and, of course there will be suspended sentences in all cases.

Judge Thompson sentenced Watson and Knight to 2 years of imprisonment, all suspended except for 120 days. He placed them on probation for a period of 2 years. He imposed probation conditions of 100 hours of community service and restitution in an amount that would be determined later. Judge Thompson stated that he would impose similar probation conditions for Maher when he sentenced him.

Judge Thompson then sentenced Maher to serve 180 days of imprisonment. He imposed 2 years of probation with various conditions of probation including restitution and 100 hours of community work service. But Judge Thompson failed to mention a suspended term of imprisonment.

On November 25, 2002, Judge Thompson entered a written judgment. In the written judgment, Judge Thompson imposed a sentence of 180 days. The written order directs Maher to report to the department of corrections after he serves his term of imprisonment. The order places Maher on probation for a period of 2 years following his release from confinement and sets out general conditions of probation along with several special conditions. But the order does not mention a suspended term of imprisonment.

Several months later, on June 2, 2003, the State filed a motion to modify the judgment. The State asked the court to modify the judgment to reflect the imposition of a suspended term of incarceration. Maher did not oppose this motion, but filed a motion asking for credit for time served in a rehabilitation program. On June 13, 2003, Judge Thompson granted the State’s motion. Judge Thompson concluded that, in context, his oral sentencing comments had clearly conveyed to Maher that the court sentenced him to 2 years with all of that time suspended except for 180 days.

Several months later, on March 18, 2004, Maher filed a motion to correct the judgment. Maher argued that Judge Thompson, in his oral sentencing remarks, had sentenced him to 180 days’ imprisonment and had not imposed any suspended time. Maher asked Judge Thompson to modify his sentence to reflect the oral sentencing remarks. Judge Thompson denied Maher’s motion, referring to his earlier order in which he had stated that he believed that his intent to sentence Maher to 2 years with all but 180 days suspended was sufficiently clear at the original sentencing hearing. Maher now appeals to this court.

Judge Thompson could modify Maher’s judgment to reflect his oral sentencing remarks

Once a court meaningfully imposes a sentence, the court cannot increase the sentence at a later time. Such a modification violates the constitutional prohibition against double jeopardy.[fn2] But it is clear that when there is a conflict between the written judgment and the judge’s oral pronouncement of the sentence, the oral pronouncement will control.[fn3]
When there is a conflict between the judge’s oral sentencing remarks and the later written judgment, it does not violate a defendant’s due process or double jeopardy rights to amend the written order to reflect the sentence that was imposed orally.[fn4]

We have carefully reviewed Judge Thompson’s sentencing remarks. We agree with Judge Thompson that his sentencing remarks, in context, reflect his intent to sentence Maher to a sentence of 2 years, with all of that time suspended except for 180 days of imprisonment.

In the first place, Judge Thompson made it clear that he intended to sentence all three defendants to serve a period of probation with suspended jail time to deter them from future crime. Judge Thompson indicated that a major purpose of his sentence was to insure that the defendants paid restitution. And he wanted to make sure that the defendants faced suspended jail time in order to deter them from future crimes and to enforce the conditions of probation, including payment of restitution and performance of community work service. Judge Thompson clearly placed Maher on probation for a period of 2 years and set several conditions of probation.

It is impossible for a judge to place a defendant on probation without suspending a portion of the defendant’s sentence.[fn5] Therefore, it is clear that Judge Thompson intended to give Maher suspended jail time. The only question is the amount of time that Judge Thompson intended to suspend. But it is clear from the sentencing hearing that all of the parties considered Maher to be a worse offender than Watson or Knight because of Maher’s more serious criminal record. Since Judge Thompson sentenced Watson and Knight to 2 years with all but 120 days suspended, Judge Thompson’s intent to sentence Maher to at least an equal total term of imprisonment is clear. We conclude that the sentencing record is sufficiently clear to support a conclusion that Judge Thompson expressed an intent to sentence Maher to at least 1½ years of suspended imprisonment. This was less suspended time than he imposed on Watson and Knight, who had more favorable prior records. In context, Judge Thompson intended to impose a sentence of 2 years on all three defendants, and then suspend all of it except for the time he ordered the defendants to serve: 120 days for Watson and Knight, and 180 days for Maher.

The trial court’s denial of Maher’s motion to correct his sentence is AFFIRMED.

[fn1] AS 11.46.130; AS 11.46.100.

[fn2] Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978);Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971).

[fn3] Burrell v. State, 626 P.2d 1087, 1089 (Alaska App. 1981).

[fn4] See Graybill v. State, 822 P.2d 1386, 1388-89 (Alaska App. 1991).

[fn5] AS 12.55.080; Kelly v. State, 842 P.2d 612, 613 (Alaska App. 1992); Figueroa v. State, 689 P.2d 512, 514 (Alaska App. 1984); Manderson v. State, 655 P.2d 1320, 1324 (Alaska App. 1983); Dentler v. State, 661 P.2d 1098, 1099 (Alaska App. 1983).

MANNHEIMER, Judge, concurring.

In Figueroa v. State, 689 P.2d 512, 514 (Alaska App. 1984), this Court held that a suspended sentence of imprisonment necessarily entails a term of probation. Thus, if a sentencing judge suspends a portion of a defendant’s sentence but fails to state how long the defendant will be on probation, there is no violation of the double jeopardy clause when the sentencing judge later amends the written judgement to supply this required element of the defendant’s sentence. Id.

Maher’s case presents the converse situation. Judge Thompson’s remarks at the sentencing hearing show that he intended to place Maher on probation, but the judge failed to mention a suspended portion of Maher’s sentence. Instead, Judge Thompson referred only to the 180 days that Maher would actually serve. The question presented in this appeal is whether Judge Thompson violated the double jeopardy clause when he later amended Maher’s written judgement by adding an additional suspended term of imprisonment of 18 months.

One might argue that, although Judge Thompson was constitutionally authorized to supply this missing element of Maher’s sentence, the judge could alter Maher’s sentence only to the minimal degree necessary to correct the error. See Dunham v.City and Borough of Juneau, 790 P.2d 239, 241 (Alaska App. 1990). In other words, because the problem was that Maher received no suspended term of imprisonment, one might argue that Judge Thompson was authorized to sentence Maher to an additional suspended term of 1 day, but no more.

But this Court’s decision in Figueroa stands as an implicit rejection of this argument. A similar “minimal alteration” argument might have been made in Figueroa, the case in which a sentencing judge forgot to specify the defendant’s term of probation. And yet this Court upheld the sentencing judge’s amendment of the judgement to call for a 2-year term of probation — not a 1-day term.[fn1]

For these reasons, I agree with my colleagues that Judge Thompson was authorized to amend the judgement by adding a more-than-de minimis suspended term of imprisonment. And I further agree that Judge Thompson’s contemporaneous sentencing remarks (concerning his intended sentences for all three defendants) show that he intended to sentence Maher to at least 2 years’ imprisonment with all but 180 days to serve. I therefore concur in upholding Maher’s amended judgement.

[fn1] Figueroa, 689 P.2d at 514.