Opinion
Court of Appeals No. A-9476.
April 11, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge., Trial Court No. 4FA-85-2169 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W . Márquez, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
In 1985, Gary Brown was convicted of murder in the first degree. Superior Court Judge Jay Hodges sentenced Brown to 50 years of imprisonment. In 1993, Brown moved to have his sentence reduced. Judge Hodges reduced Brown's sentence to 40 years with 10 years suspended. But Judge Hodges did not state any term of probation for the suspended 10 years.
In 2005, the Department of Corrections asked the superior court for clarification of Brown's sentence, in particular, the absence of a term of probation. Because Judge Hodges had retired, Superior Court Judge Randy M. Olsen clarified Brown's sentence by ordering Brown to serve a 5-year period of probation.
Judge Olsen did not address Brown's conditions of probation at the sentencing hearing. In a later written order, Judge Olsen specified eleven conditions for Brown's probation.
On appeal, Brown contends that Judge Olsen only had the authority to impose the minimum term necessary to make Brown's sentence legal, which would be 1 day of supervised probation. Brown also argues that Judge Olsen erred in imposing conditions of probation after sentencing. We affirm Judge Olsen's order imposing the 5-year term of probation supervision. We remand to the superior court to consider Brown's conditions of probation so that he will have notice of those conditions and an opportunity to oppose them.
Factual and procedural background
In 1985, Gary Brown was convicted of one count each of murder in the first degree, tampering with physical evidence, and misconduct involving a controlled substance in the fourth degree. Superior Court Judge Jay Hodges sentenced Brown to consecutive terms of 50 years for the murder conviction, 1 year for the evidence tampering conviction, and 90 days for the controlled substance conviction.
AS 11.41.100(a)(1).
AS 11.56.610.
AS 11.71.040(a)(3)(A).
In 1993, Brown applied to the superior court to modify his sentence. After an evidentiary hearing, Judge Hodges granted the motion. However, Judge Hodges found that, despite Brown's apparently exemplary behavior while he was incarcerated, Brown's sentence did not warrant substantial modification. Accordingly, Judge Hodges suspended 10 years of Brown's 50-year murder sentence. He ordered Brown's other sentences to be served concurrently with the 40-year murder sentence. Judge Hodges did not address the period of time that Brown would serve on probation.
In 2005, the Alaska Department of Corrections (DOC) notified the superior court that Brown's sentence modification did not address Brown's term of probation. Judge Hodges had retired, and the matter was assigned to Superior Court Judge Randy M. Olsen. Judge Olsen ordered a hearing. Brown argued that Judge Hodges's order should be modified to the minimum extent necessary to make the sentence legal: 1 day of supervised probation. The parties agreed that, no matter what the superior court decided, Brown would be subject to 13 years of supervised parole at the end of his term of incarceration. The State argued that Judge Olsen should impose 5 years of supervised probation.
Judge Olsen decided to impose a 5-year period of supervised probation. But he did not specify any probation conditions. Following the sentencing hearing, however, Judge Olsen issued a written judgment ordering supervised probation and specifying eleven conditions of probation. According to Judge Olsen's written judgment, Brown was required to abide by the following conditions of probation: (1) report to the DOC on the day following release; (2) secure permission from DOC before changing employment/residence, or leaving the region of residence assigned; (3) make a reasonable effort to secure and maintain steady employment; (4) report to a DOC probation officer twice per month; (5) not possess a firearm, concealed weapon, switchblade, or gravity knife; (6) not knowingly associate with a person on probation or parole, or a person who has a record of a felony conviction unless prior permission to do so has been granted by DOC; (7) make a reasonable effort to support legal dependants; (8) not consume alcohol; (9) comply with all municipal, state, and federal laws; (10) report all purchases, sales, and trades of motor vehicles, and report current motor vehicle license numbers to DOC; and (11) abide by any special instructions given by the court or DOC.
Brown now appeals Judge Olsen's decision to impose the 5-year term of probation and his decision to impose the conditions of probation set out in the written order.
Why we uphold Judge Olsen's decision to impose the 5-year term of probation
This case is governed by our decision in Figueroa v. State. In Figueroa, the superior court sentenced Figueroa to 4 years of imprisonment with 2 years suspended. But, at the sentencing hearing, the sentencing judge did not order Figueroa to be placed on probation during the suspended portion of his sentence. Several weeks later, the superior court, in a written order, specified that Figueroa was to serve a 2-year period of probation, subject to standard probation conditions. Figueroa argued that the later inclusion of the 2-year probationary period in the written judgment amounted to an illegal increase in his sentence.
689 P.2d 512 (Alaska App. 1984).
Id. at 514.
Id.
In rejecting Figueroa's argument, we held that, under the Alaska Statutes, "whenever a sentencing judge suspends a sentence of imprisonment, the judge is required to place the defendant on probation." We concluded that when the sentencing judge imposed Figueroa's sentence, the sentence "was obviously incomplete when first pronounced, and it was therefore not meaningfully imposed. Correction of the original sentence was permissible under these circumstances." W e stated that "because the nature of the court's oversight is apparent from the contemporaneous record of the sentencing hearing, it was not impermissible for [the sentencing judge] to correct the error by providing for a two-year period of probation, subject to the standard conditions." Figueroa hinged on the fact that when a judge imposes a suspended sentence without a period of probation, the sentence is incomplete. Later, in Christensen v. State, when faced with the State's argument that Figueroa allowed Christensen's sentence to be clarified to allow a greater term of probation, we pointed out what makes an order suspending sentence incomplete.
Id. (citing AS 12.55.080).
Id. (citations omitted).
Id. (citations omitted).
844 P.2d 557 (Alaska App. 1993).
Id. at 558-59.
Three elements must be addressed for a complete order suspending sentence: the total length of imprisonment, the portion of the total to be suspended, and the length of the defendant's probation. In Christensen, all three elements were present, so we rejected the State's suggestion that the superior court could impose a more onerous probation condition.
Id. at 559.
Here, like Figueroa, the superior court originally imposed an incomplete suspended sentence. Because Brown's suspended sentence was incomplete and not meaningfully imposed, Judge Olsen was authorized to impose a period of probation.
Brown agrees that Figueroa stands for the proposition that, when a sentencing judge imposes a suspended sentence, the sentencing judge is required to impose a period of probation. But Brown points to the corollary principle that, when a sentencing court imposes an illegal sentence, the "illegal sentence can be modified only to the extent necessary to correct the illegality."
Id. at 558 (citations omitted).
However, we did not follow this principle in Figueroa. In Figueroa, we did not allow only a single day of probation; we authorized the sentencing judge to impose a 2-year period of probation. The apparent policy behind this ruling is that a sentencing judge who fails to specify a period of probation has simply overlooked his or her obligation and has not yet completed sentencing. Generally, a sentencing judge will be focused more on the sentence of imprisonment than the term of probation. And where the sentencing judge does not specify a term of probation, the error is obvious. The sentence is obviously incomplete. Therefore, there is a minimal possibility that the defendant will be surprised by the sentencing court's later imposition of a term of probation, or that the sentencing court's action could be perceived as retaliation. A remedy of modifying the sentence so that the defendant serves only 1 day of probation is unnecessarily extreme because it would essentially eliminate supervised probation merely because of an oversight by the sentencing court.
Figueroa, 689 P.2d at 514.
Brown attempts to distinguish Figueroa on the ground that a considerable period of time passed between when the superior court originally modified his sentence in 1993 and the superior court's clarification of Brown's probation status in 2005. But, as we have said, the error in the superior court's original modification of Brown's sentence was obvious. We assume the delay occurred because, given the length of Brown's sentence, his term of probation release only became relevant much later. We conclude that the delay in clarifying Brown's sentence did not limit the superior court's authority to impose a meaningful term of supervised probation.
Why we conclude we must remand to the superior court for a hearing on Brown's conditions of probation
Brown also contends that, because the superior court did not specify probation conditions, his probation conditions must be minimal — unsupervised probation. But this argument is contrary to what we said in Figueroa. In Figueroa, we stated that when the superior court did not specify conditions of probation, the defendant would be subject to supervised probation, and subject to standard conditions of probation.
Id.
Furthermore, after the parties submitted their briefs in this case, we decided Marunich v. State. In Marunich, the sentencing court included several conditions of probation in the written judgment that the court had not mentioned at the defendant's sentencing hearing. We held that the defendant "was entitled to advance notice of these requirements and an opportunity to argue that, under the circumstances of his case, one or more of these requirements are unreasonable or infringe his rights." Marunich held that the superior court could, after a hearing, impose standard conditions of probation which were necessary for a probation officer to supervise and control the conduct of a probationer. In addition, the superior court has the inherent authority to impose probation conditions which merely restate the probationer's obligation to obey the law.
151 P.3d 510 (Alaska App. 2006).
Id. at 513.
Id. at 522.
Id.
Id. at 515.
But, in any event, Brown is entitled to a hearing where he has notice of the proposed conditions of probation and an opportunity to argue against the conditions. In addition, Brown can argue at his hearing that the court should place him on open court probation, rather than supervised probation.
Conclusion
We conclude that the superior court did not err in imposing a 5-year term of supervised probation. But we conclude that the superior court erred in imposing probation conditions without giving Brown notice and an opportunity to be heard. We accordingly affirm Brown's sentence but remand to the superior court to consider Brown's conditions of probation.
REMANDED.