JETER v. STATE (2015)

Order

Petition for Rehearing.

The Appellant, Darien Jeter, seeks rehearing of our decision in his case: Jeter v. State, Alaska App. Memorandum Opinion No. 6187 (May 20, 2015), 2015 WL 2453715.

Jeter's case is a sentence appeal in which he argues that he received an excessive sentence when the superior court revoked his probation from a vehicle theft that he committed in 2012. Jeter's probation was revoked because he committed a new crime (second-degree theft) in 2013.

As we noted in our earlier decision, in addition to the probation revocation sentence that Jeter challenged on appeal, he received a separate sentence for the 2013 felony, and he also received a third sentence because his probation was revoked in a previous felony case from 2011.

Under current Alaska case law, the alleged excessiveness of the sentence that Jeter received when his 2012 probation was revoked could not be evaluated without also considering the two other sentences he received. So, in our decision, we cautioned the defense bar “that, in future cases, we may decline to hear sentence appeals if the defense does not provide us with the record of all the pertinent court proceedings. We will not allow defendants to challenge individual portions of a composite sentence as excessive.”

Jeter now asks us to reconsider, or at least clarify, this language.

Jeter points out that, traditionally, the phrase “composite sentence” has been used to describe the total sentence that a defendant receives for two or more convictions in the same court case. Alaska law provides that if a defendant challenges the sentence that was imposed for two or more criminal convictions, it is normally the composite sentence that matters: the appellate court will assess whether the defendant's combined sentence is clearly mistaken, given the whole of the defendant's conduct and history. Tickett v. State, 334 P.3d 708, 713 (Alaska App.2014).¹ In these situations, the law “[does] not require that each specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation.” Brown v. State, 12P.3d201,210(Alaska App.2000).

But this Court has employed the phrase “composite sentence” in a broader sense in cases where a defendant's probation is revoked based on the defendant's commission of a new crime. In such cases, we have applied the same rule that applies when a defendant receives multiple sentences in a single case: we have treated the defendant's sentence for the new crime and the defendant's probation revocation sentence as one composite sentence, and we have then evaluated the appropriateness of that composite sentence in light of the totality of the defendant's conduct and background. See Steve v. State, 875 P.2d 110, 126 (Alaska App.1994); Moya v. State, 769 P.2d 447, 449 (Alaska App.1989); Betzner v. State, 768 P.2d 1150, 1157 (Alaska App.1989).

This approach seems particularly appropriate because, under Alaska's sentencing statutes, when a defendant who is on probation commits a new crime, the sentence for the new crime and any probation revocation sentence for the previous crime must be imposed consecutively. See AS 12.55.127(a), as interpreted in Smith v.. State, 187 P.3d 511, 514–15 (Alaska App.2008).

But in his petition for rehearing, Jeter points out that, often, not all of the pertinent sentences will be appealable, due to the limits on the right of sentence appeal codified in Alaska Appellate Rule 215(a). In light of this, Jeter asks whether a defendant must actually try to appeal all of the pertinent sentences—or whether it is sufficient that the defendant provide the appeals court with the sentencing record(s) from the other pertinent cases.

Jeter also points out that, many times, the sentence for the new crime and the probation revocation sentence(s) will be imposed at different times by different judges—sometimes, without knowledge of what the other judges have done. He asks this Court to clarify the duties of defense attorneys and sentencing judges in such situations.

This Court recently addressed this problem in a pair of related cases: Phillips v. Anchorage, unpublished, 2014 WL 5799913 (Alaska App.2014), and Phillips v. State, unpublished, 2014 WL 6608927 (Alaska App.2014).

Lori Phillips was on misdemeanor probation in three different district court cases when she was convicted of new felony offenses in the superior court. Before Phillips was sentenced for the felonies, the district court imposed a composite probation revocation sentence of 698 days' imprisonment. Phillips appealed this 698–day sentence—arguing (among other things) that the sentence was excessive because the district court should have anticipated that Phillips would receive a far lengthier sentence from the superior court.

We rejected Phillips's argument that the district court should have anticipated the superior court's sentencing decision. Instead, we stated that Phillips's attorney should have brought this matter to the attention of the superior court (i.e., the court that sentenced Phillips second), so that the superior court judge could take the district court's 698–day sentence into account when deciding what sentence to impose in the felony case:

While it may have been obvious that Phillips was going to receive a long term of imprisonment for her felony convictions, Phillips's district court sentencing hearing occurred first, and it would have been completely speculative for the district court to make assumptions about the length and contours of the felony sentence that the superior court might impose. Rather, the length of Phillips's misdemeanor sentences would be a proper subject for Phillips's attorney to address at the later sentencing hearing in the superior court—because Phillips's final composite term of imprisonment could not be known until that time.

To the extent that Phillips means to attack the composite sentence she received for all of her offenses (both her misdemeanor convictions in the district court and her felony convictions in the superior court), we can not resolve that claim here.

When this Court reviews a composite sentence imposed for two or more criminal convictions, we assess whether the combined sentence is clearly mistaken, given the whole of the defendant's conduct and history.2 We do not require that a specific sentence imposed for a particular count or offense be individually justifiable as if that one crime were considered in isolation. 3 For this reason, we will not hear a defendant's challenge to the consecutive imposition of sentences unless the defendant has appealed each of the sentences that contributes to the composite total, so that this Court can meaningfully evaluate the whole.4

Accordingly, we will take Phillips's misdemeanor sentences into account when we decide Phillips's sentence appeal in her felony case, but we will not evaluate Phillips's misdemeanor sentences in a vacuum.

Phillips v. Anchorage, 2014 WL 5799913 at *3.

Two weeks later, we issued our opinion in Phillips's felony case—which included Phillips's argument that her composite sentence in the felony case was excessive. In our opinion, we adhered to the rule that, in situations where a defendant receives separate sentences for new crimes and for probation revocations, the question to be decided on appeal is whether the defendant's combined sentence is excessive, “given the whole of her conduct and history”. 2014 WL 6608927 at *6. Therefore, when we gauged whether Phillips's composite sentence in the felony case was excessive, we also took into account the 698 days that she received from the district court because of her probation revocations. Ibid.

Our two decisions in Phillips (when read together) suggest, but do not directly hold, that when a defendant will be sentenced by different judges for new crimes and for probation revocations, it is up to the defense attorney to apprise whichever judge sentences the defendant second that the defendant has already received one or more related sentences.

We acknowledge that we may be unaware of the real-world difficulties and repercussions of this approach. Jeter's petition for rehearing raises some valid concerns about how this approach works in practice. We note, moreover, that the Public Defender Agency agrees that these matters need clarification. The Agency has filed a motion seeking permission to intervene in the proceedings on rehearing for the purpose of addressing these issues. And, finally, Jeter's case appears to be a suitable vehicle for clarifying these issues.

Accordingly, IT IS ORDERED:

1. The petition for rehearing is GRANTED.

2. The Public Defender Agency's motion to participate in the proceedings on rehearing is GRANTED.

3. The three parties (i.e., Jeter, the State, and the Public Defender Agency) are invited to file briefs addressing the issues we have discussed in this order (as well as any other related questions that the parties believe this Court should consider). In their briefs, the parties may make recommendations to this Court regarding the rules that should govern these situations.

4. The parties' briefs shall be filed on or before Monday, August 31, 2015. This deadline may be extended upon proper motion.

FOOTNOTES

1.  See also Carlson v. State, 128 P.3d 197, 214 (Alaska App.2006); Brown v. State, 12 P.3d 201, 210 (Alaska App.2000); Comegys v. State, 747P.2d 554, 558–59 (Alaska App.1987).

2.  Brown v. State, 12 P.3d 201, 210 (Alaska App.2000); Comegys v. State, 747 P.2d 554, 558–59 (Alaska App.1987).

3.  Waters v. State, 483 P.2d 199, 202 (Alaska 1971); Jones v.. State, 765 P.2d 107, 109 (Alaska App.1988); Comegys v. State, 747 P.2d 554, 558–59 (Alaska App.1987).

4.  Preston v. State, 583 P.2d 787, 788 (Alaska 1978).