Opinion
Court of Appeals No. A-10523 Court of Appeals No. A-10524 Trial Court No. 3PA-02-1288 CR Trial Court No. 3PA-04-1557 CR No. 5829
04-18-2012
CARL GAGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Caitlin Shortell, Attorney at Law, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Caitlin Shortell, Attorney at Law, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Carl Gage was convicted of several offenses related to the burglary of the Big Lake Foodmart and the Wasilla Elk's Lodge. On appeal, Gage claims that Superior Court Judge Kari Kristiansen should have dismissed the charges because the State failed to file a detainer requesting his return to Alaska for trial until shortly before he was scheduled to be released from prison in California. We conclude that the Interstate Agreement on Detainers does not set any deadline on the State's decision to file a detainer. Gage also argues that his combined sentence in these two cases is excessive because the sentences were imposed consecutively. But we conclude that the decision to impose consecutive sentences was not clearly mistaken.
Background
In May 2002, Carl Gage burglarized the Big Lake Foodmart in Big Lake, Alaska. In June 2002, Gage and another man burglarized the Elk's Lodge in Wasilla, Alaska. Gage was indicted for the Foodmart burglary in June 2002, and was released on bail. In October 2002, Gage failed to appear for his trial, and the court issued an arrest warrant.
After Gage failed to appear for his trial, he was convicted of various crimes in Arizona, California, and Washington. While he was serving a sentence for a burglary he committed in Lassen County, California, the sheriff of Shasta County lodged a detainer against Gage relating to another outstanding charge. The correctional facility informed Gage of the detainer and of his right to request disposition of the untried charges. In response, Gage submitted to prison officials a handwritten request for disposition of the untried Shasta County charge and "of any outstanding warr[an]ts or detainers [nationwide.]"
In June 2008, several days prior to Gage's scheduled release from prison in California, the State of Alaska filed a detainer notifying the California prison officials that Gage was wanted in Alaska on burglary, criminal mischief, and theft charges. Gage was subsequently transported to Alaska and arraigned in both pending Alaska cases. The State also filed a petition to revoke Gage's probation in a 1999 case, in which he had been convicted of custodial interference.
Gage filed a motion to dismiss both cases, claiming the State violated his rights under the Interstate Agreement on Detainers (Agreement) because the State did not file a detainer with California in a timely manner. Judge Kristiansen denied Gage's motion to dismiss, concluding that the Agreement was inapplicable to Gage's 2005 request for disposition because Alaska did not lodge a detainer against Gage until June 9, 2008, and because, under the Agreement, an inmate's request for disposition of charges can only be made after the prosecuting jurisdiction files a detainer.
AS 33.35.010.
Gage was convicted of second-degree burglary, third-degree criminal mischief, and fourth-degree theft in the Foodmart burglary case. Gage was also convicted of second-degree burglary, second-degree criminal mischief, and second-degree theft in the Elk's Lodge burglary case. Based on these convictions, Judge Kristiansen granted the State's petition to revoke his probation in the 1999 custodial interference case.
At sentencing, Judge Kristiansen merged Gage's theft convictions with his burglary convictions and imposed his criminal mischief sentences concurrent to his burglary sentences. For each burglary conviction, Judge Kristiansen imposed three years to serve. Although Gage argued that the burglary sentences should be imposed concurrently, Judge Kristiansen imposed the three-year sentences consecutively. Judge Kristiansen also imposed the remaining six months of Gage's previously suspended sentence for his custodial interference conviction.
Discussion
The State did not violate the Interstate Agreement on Detainers.
On appeal, Gage argues that Judge Kristiansen should have granted his motion to dismiss because the State violated the Interstate Agreement on Detainers by filing an untimely detainer.
A state seeking to use the Agreement to place a hold on a prisoner in another state begins the process by lodging a detainer against the prisoner at the correctional institution in which the prisoner is held. A "detainer" is "a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent."
New York v. Hill, 528 U.S. 110, 112 (2000) (citing Fex v. Michigan, 507 U.S. 43, 44 (1993)).
Carchman v. Nash, 473 U.S. 716, 719 (1985).
After a detainer has been lodged, the prisoner has a right to demand speedy resolution of the charges. The prisoner may submit a "request for a final disposition to be made of the indictment, information or complaint" that forms the basis for the detainer. In that case, the prisoner must be brought to trial within a 180-day period that begins when the prisoner's request for final disposition of the charges has been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against the prisoner. If the prisoner is not brought to trial within the applicable statutory period, "the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing it with prejudice."
See AS 33.35.010 art. III(a), art. IV(a).
AS 33.35.010 art. III(a).
AS 33.35.010 art. III(a); see also Fex, 507 U.S. at 51.
AS 33.35.010 art. V(c).
The Agreement is specifically limited to charges that form the underlying basis for a detainer filed by a prosecuting authority. In cases where a state receiving a prisoner from another state never files a detainer against that prisoner, the Agreement never becomes applicable, and the receiving state is never bound by its provisions. The provisions of Article III of the Agreement apply only when a detainer has first been lodged against the prisoner with the jurisdiction that has custody over him or her. Thus, the provisions of the Agreement are triggered only when a detainer is filed with the custodial or "sending" state by the other "receiving" state that has untried charges pending against the prisoner.
People v. Campbell, 742 P.2d 302, 306 (Colo. 1987).
United States v. Mauro, 436 U.S. 340, 361 (1978); see also United States v. Leon, 94 Fed. App'x 808, 809 (10th Cir. 2004).
State v. Miles, 101 S.W.3d 180, 183 (Tex. App. 2003).
Johnson v. State, 900 S.W.2d 475, 479 (Tex. App. 1995) (citing Mauro, 436 U.S. at 343), aff'd, 930 S.W.2d 589 (Tex. Crim. App. 1996).
In other words, the Agreement provides no relief for a prisoner accused of a crime in another jurisdiction when no detainer has been lodged by that jurisdiction. There is nothing in the Agreement that compels a state to file a detainer. And after a detainer has been filed, the limitation period does not begin to run until the prosecuting authority in the "receiving" state (i.e., the other state where the charges are pending) receives the request for disposition.
See AS 33.35.010 art. III(a) (providing that a prisoner has a right to request final disposition of "any untried indictment, information or complaint on the basis of which a detainer has been lodged" (emphasis added)); Newcomb v. State, 779 P.2d 1240, 1243 (Alaska App. 1989) (stating that the Agreement allows a prisoner in one state to request speedy disposition of untried charges in another state when that state has lodged a detainer against the prisoner based on those charges); see also Mauro, 436 U.S. at 343-44 ("[T]he provisions of the Agreement are triggered only when a 'detainer' is filed with the custodial (sending) State by another State (receiving) having untried charges pending against the prisoner ... .").
Fex, 507 U.S. at 51 n.4 ("[T]he [Agreement] does not require detainers to be filed ... .") (emphasis in original).
Id. at 51-52; see also Bryant v. Commonwealth, 199 S.W.3d 169, 174 (Ky. 2006); People v. Bowman, 502 N.W.2d 192, 195 (Mich. 1993); Carbaugh v. State, 348 S.W.3d 871, 878 (Mo. App. 2011); State v. Dodson, 221 P.3d 687, 696-97 (Mont. 2009); State v. Pero, 851 A.2d 41, 53 (N.J. Super. App. Div. 2004).
Gage asserts that his 2005 request for disposition of "any outstanding warr[ant]s or detainers [nationwide]" triggered his right under the Agreement to resolution of his Alaska charges "within 180 days of when his notice [was] delivered to the prosecuting attorney." But Gage's request for disposition was submitted in response to a detainer filed by Shasta County, California; consequently, the only jurisdiction required to bring Gage to trial within 180 days of Gage's request was Shasta County, California. The 2005 request had no effect whatsoever on Gage's pending Alaska charges.
It was not until June 2008, when Alaska filed a detainer against Gage, that any request by Gage for disposition of his Alaska cases would have had an effect on Alaska under the Agreement. We conclude that Gage has not demonstrated that Judge Kristiansen erred when she decided that the State had not violated the Agreement.
The superior court had the discretion to impose consecutive sentences.
Gage also argues that his sentence is excessive because his sentences were imposed consecutively instead of concurrently. Gage's sentence is governed by former Alaska Statute 12.55.025. This statute listed six circumstances when sentences could run concurrently. If none of the six circumstances applied, the statute required that the sentences be imposed consecutively. This statute expressed a legislative preference for consecutive sentences, but gave a sentencing judge the discretion to impose concurrent sentences in particular circumstances.
The statute permitted sentences to run concurrently if: (1) the crimes violated similar societal interests; (2) the crimes were part of a single, continuous criminal episode; (3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or the type of property offended, or the persons offended; (4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime; (5) . . . ; or (6) the sentence was not for a violation that resulted in physical injury or serious physical injury. Former AS 12.55.025(g) (2002).
Former AS 12.55.025(e) (2002).
See Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005); Jones v. State, 744 P.2d 410, 412 (Alaska App. 1987); State v. Andrews, 707 P.2d 900, 910 (Alaska App. 1985), aff'd, 723 P.2d 85 (Alaska 1986).
In this case, Judge Kristiansen recognized that she had the discretion to impose concurrent sentences, but she chose to impose consecutive sentences. She stated that two separate acts of misconduct on two different dates should result in separate consequences for each act. The judge acknowledged that the burglaries were committed within a month of each other, but she found that they were not part of a continuous episode.
Judge Kristiansen also discussed Gage's history of criminal activity, describing Gage as a "serial burglar." She indicated that burglary is "very harmful to society" and that, in a state where many people have weapons, someone is bound to be injured by this "very serious offense."
Judge Kristiansen recognized her discretion to impose either consecutive or concurrent sentences and stated valid reasons supporting her decision to impose consecutive sentences. We conclude that the judge's decision to impose consecutive three-year sentences was not clearly mistaken.
Conclusion
We therefore AFFIRM the superior court's judgment and sentence.