Opinion
Court of Appeals No. A-10012, No. 5424.
January 7, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-04-4315 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, Joshua Fink, Public Advocate, and Rachel Levitt, Acting Public Advocate, Office of Public Advocacy, Anchorage, for the Appellant. Sara E. Simpson, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Juneau, Attorney General, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Sean M. Judd was sentenced to three years' imprisonment with two years suspended for the crime of assault in the third degree in March 2006. The superior court imposed some of the suspended time after Judd's probation violations in May and June 2006. Then the State filed another petition to revoke his probation in August 2006. Judd made it clear that he wanted to reject any further probation. At that time he had about one year and nine months of suspended time remaining on his sentence.
At the disposition hearing, Judd's attorney argued that the court could not automatically impose all of the remaining suspended time, citing D eM ario v. State. This exchange followed:
933 P.2d 558, 562 (Alaska 1997).
The Court: [H]ow could I give Mr. Judd . . . half of the nineteen months that I understand he has to serve and simply say that's it?
Defense Counsel: That's what you do.
The Court: That'd be reducing the sentence, wouldn't it?
Defense Counsel: The court's entitled to do it. I mean, the court can simply say, you know, I'm imposing this. He's refusing further probation. Case closed. He has to serve out the two months or the nine months or the ten months, whatever the court decides at the moment is the appropriate consequence for whatever brought him before the court.
The Court: All right. Mr. Gazewood, you look like you're in great distress over there. What do you have to [say?]
Prosecutor: I haven't been an attorney that long, but I don't think that's how it works. I mean, . . . he was sentenced before. You're sentencing him on a PTR and certainly you have to evaluate Chaney . . . in the context of the nineteen months to serve, but you can't cook up another sentence kind of whole-wolf and be like, oh, this is what it is now. I mean, that's . . . it's not the way it works. [Y]ou can impose anywhere up to the nineteen months. . . .
State v. Chaney, 477 P.2d 441 (Alaska 1970).
The Court: But then he'd be on probation.
Prosecutor: Yeah, exactly. I mean, so you can go. . . .
Prosecutor: . . . anywhere between. Yeah.
The Court: He doesn't want to be on probation.
Prosecutor: Right. So . . . you can't resentence him. He's been sentenced.
The Court: And I don't want him on probation.
Prosecutor: He's been resentenced. . . .
The Court: Right. I mean, as far as I'm concerned, Mr. Judd needs to go out in the world and go about his business as soon as he can finish whatever sentence he has, and do well so he's never back in front of here.
This exchange suggests that the judge accepted the prosecutor's argument that he could not terminate probation without imposing the balance of the suspended sentence. If the judge accepted this argument, then this conclusion is inconsistent with the rule we have stated in prior cases: "The fact that a defendant decides to refuse further probation does not, in itself, automatically justify imposition of the defendant's entire remaining suspended jail time." "Rather, the judge must consider the totality of the circumstances (the defendant's background and original offense, coupled with the defendant's conduct on probation) and then weigh these circumstances in light of the sentencing criteria codified in A S 12.5 5.005 ." I n oth e r w ord s, w hen th e defend ant rejects probation, the sentencing judge has the authority to terminate probation and impose any portion of the suspended sentence that is justified by the sentencing criteria.
Oyoumick v. State, 185 P.3d 771, 774 (Alaska App. 2008) (citing DeMario, 933 P.2d at 562).
Id.
We recently affirmed a similar sentence, where the judge imposed all of the remaining suspended time after the defendant rejected probation. But in that case, the judge's remarks made it clear that he understood that he had the discretion to impose a lesser sentence. In Judd's case, however, the judge apparently concluded that he could not terminate probation without imposing the balance of the suspended sentence.
See Id. at 772.
Id. at 774.
We therefore VACATE the sentence and REMAND this case to the superior court for resentencing.