Opinion
Court of Appeals No. A-11478 No. 6195
06-17-2015
JEFFREY ERIC BRIGMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage (opening brief), and Elizabeth D. Friedman, Assistant Public Advocate and Richard Allen, Public Advocate, Anchorage (reply brief), for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KO-04-548 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage (opening brief), and Elizabeth D. Friedman, Assistant Public Advocate and Richard Allen, Public Advocate, Anchorage (reply brief), for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In September 2010, while Jeffrey Eric Brigman was concurrently on probation and parole from a manslaughter conviction, his probation officer received word that Brigman was using illicit drugs (in violation of both his probation and his parole). When the probation officer ordered Brigman to submit to a urine test, Brigman disappeared, leaving no forwarding address.
After a few weeks, Brigman was apprehended. The State commenced probation revocation proceedings against him in the superior court, and the Parole Board commenced proceedings to revoke Brigman's parole.
During the pendency of these two revocation proceedings, Brigman was sometimes in jail, and at other times he was placed in a community resource center (or "CRC").
The Parole Board resolved the parole revocation matter in March 2011 by revoking Brigman's parole but then releasing him back to parole. About six weeks later, the superior court resolved the probation revocation matter by revoking Brigman's probation and imposing 2 years of his previously suspended jail time.
At the probation revocation sentencing hearing, the prosecutor reminded the superior court that, under Alaska law, the court had the discretion to make this 2-year sentence consecutive to the jail time that Brigman was ordered to serve under the Parole Board's decision. See AS 33.20.040(c). But the court told the prosecutor, "I am just imposing the 2 [suspended] years. Whatever they [i.e. the Parole Board] want to do [as far as making the sentences consecutive or concurrent] is their decision."
The present appeal arises because Brigman disagrees with the way the Department of Corrections has calculated how much credit he should receive for the time he spent in custody pending the resolution of these probation and parole revocation matters.
With respect to Brigman's original manslaughter sentence (6 years to serve), the Department of Corrections has given Brigman credit against this sentence for all the time he spent in custody — either in jail or in a CRC — pending the resolution of the parole revocation matter. But with respect to the 2 additional years that Brigman received when the superior court revoked his probation, the Department has only credited Brigman with the time he spent in jail; the Department has not given Brigman credit against this 2-year sentence for the time he spent in the CRCs.
Brigman filed a motion challenging the Department's calculations and asking the superior court to give him credit against the 2-year probation revocation sentence for the time he spent in the community resource centers. The superior court denied Brigman's motion on the ground that he was impermissibly seeking double credit. Brigman now appeals the superior court's ruling.
The superior court's "double credit" rationale would have been correct if the superior court had imposed a consecutive 2-year sentence when it revoked Brigman's probation. A defendant is entitled to no more credit than the number of days spent in pre-judgement custody. Thus, a defendant is not entitled to separate credit for the same days in custody against two or more consecutive sentences. Rather, the defendant is only entitled to credit against their composite (i.e., aggregate) sentence. Endell v. Johnson, 738 P.2d 769,771 (Alaska App. 1987).
But Brigman's probation revocation sentence was not imposed consecutively. As we have explained, when the prosecutor openly suggested that the superior court might want to make the 2-year probation revocation sentence consecutive to the jail time that Brigman was ordered to serve by the Parole Board, the superior court declined to do so. And under Alaska law, when a sentencing judge has the discretion to impose a sentence consecutively or concurrently, and when the judge does not specify whether the sentence is consecutive or concurrent, the sentence is concurrent by operation of law. Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005).
In its brief to this Court, the State suggests that the Parole Board expressly made their sentence consecutive to whatever sentence the superior court might impose (in the future) in connection with the revocation of Brigman's probation. But there is nothing in the record of the Parole Board's proceedings to support the State's suggestion.
What all of this means is that the superior court relied on a mistaken rationale when it denied Brigman's motion for additional credit against his 2-year probation revocation sentence.
This is not to say, however, that Brigman is necessarily correct when he asserts that the Department's time calculation is wrong, and that he is still owed additional credit for time served. Based on the current record, we are unable to discern the Department's reason(s) for its time calculations in Brigman's case. We therefore remand this case to the superior court for renewed proceedings on Brigman's motion for additional credit against his 2-year probation revocation sentence.
We strongly suggest that, rather than having the parties speculate about the Department's reasons for its calculation, the superior court should have a time-accounting technician from the Department come to court, or submit an affidavit (with the consent of the parties), to explain how the Department calculated Brigman's credit for time served.
This case is REMANDED to the superior court for further proceedings in accordance with this opinion. We do not retain jurisdiction of this case.