Opinion
Court of Appeals No. A-11374 No. 6168
04-15-2015
WILLIAM G. OSBORNE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal 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. 3AN-09-12263 CI t/w 3AN-07-14638 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan and Gregory Miller, Judges. Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
William G. Osborne filed an application for post-conviction relief asserting that he was denied the right to effective assistance of counsel. The superior court dismissed the application for failure to state a prima facie case. Osborne appeals. For the reasons explained here, we affirm the superior court's dismissal.
Background facts and prior proceedings
In 2009, Osborne pleaded guilty to first-degree robbery. As part of his plea bargain, he agreed to a set sentence of 20 years with 10 years suspended and imposition of all his outstanding parole time in an unrelated case from 1993. Superior Court Judge Michael Spaan accepted Osborne's plea and imposed the agreed-upon sentence of 10 years to serve for the first-degree robbery.
When, a few months later, Osborne still had not had a hearing in front of the Parole Board on his parole revocation in the 1993 case, the prosecutor filed a motion in the superior court asking Judge Spaan to order the imposition of Osborne's remaining parole time. Osborne's attorney opposed the motion, pointing out that the superior court had no jurisdiction over Osborne's parole because the matter rested with the Parole Board.
As we discuss later, Osborne's attorney was correct that Judge Spaan had no authority to impose the parole time, nor did he have authority to order the Parole Board to revoke Osborne's parole. Judge Spaan nevertheless issued an order stating, "Pursuant to the negotiated plea agreement the remainder of defendant's parole time in [the earlier case] is imposed by the parole board. Time accounting will be completed by the Department of Corrections."
The record indicates that the Parole Board viewed Judge Spaan's order simply as notice of the terms of Osborne's plea agreement. As the Parole Board recognized, the plea agreement bound Osborne, but it did not bind the Parole Board, which was not a party to the agreement.
The Parole Board then independently made the decision to impose all of Osborne's remaining parole time in his 1993 case. The revoked parole time was imposed consecutively to his sentence for first-degree robbery as required by statute.
See AS 12.55.127(a).
Osborne filed a pro se motion with the superior court, arguing that the imposed parole time should run concurrently with his sentence for first-degree robbery. Judge Spaan denied the motion, pointing out that AS 12.55.127(a) required the revoked parole time from the earlier, unrelated case to run consecutively to the time from the new case.
Around this same time, Osborne's appointed attorney filed a motion in superior court requesting that the attorney's appointment as Osborne's counsel continue until Osborne's co-defendants were tried, even though a final judgment had been entered in Osborne's case. Judge Spaan denied the motion.
Osborne then filed an application for post-conviction relief in which he asserted that the superior court erred in denying him continued representation by his appointed attorney. Osborne argued that if his attorney had continued to represent him, the attorney would have been able to appeal his sentence as excessive and challenge the consecutive nature of the revoked parole time. Osborne also argued that his attorney was ineffective for failing to make it clear to the superior court that the appointment needed to be continued for these purposes. Judge Spaan and Judge Miller, to whom Judge Spaan assigned Osborne's claims related to Judge Spaan's own performance, denied the application for failure to state a prima facie case.
Osborne now appeals.
Why we agree with the superior court that Osborne's application for post-conviction relief failed to state a prima facie case for relief
To state a prima facie case for relief, a post-conviction relief application must "set[] out facts which, if true, would entitle the applicant to the relief claimed."
State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
On appeal, Osborne argues that he was prejudiced by the superior court's refusal to extend his attorney's appointment because this left Osborne without the assistance of counsel to challenge the consecutive imposition of his parole time and the excessiveness of his composite sentence.
But, as the superior court recognized, this claim of prejudice fails as a matter of law. Alaska Statute 12.55.127(a) requires a defendant's parole time to be imposed consecutively to a sentence for a new offense committed while the defendant was on parole. Given this statutory requirement, Osborne could not have successfully challenged the imposition of his parole time consecutive to his first-degree robbery sentence even if he had the assistance of counsel.
See AS 12.55.127(a); Smith v. State, 187 P.3d 511, 512-20 (Alaska App. 2008) (finding that AS 12.55.127 was intended to codify decisions of this Court and the Alaska Supreme Court interpreting former AS 12.55.025); Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986) (holding that former AS 12.55.025(e) required trial judges to impose consecutive sentences for crimes committed after the defendant had already been imprisoned for a prior offense).
Nor could Osborne have challenged his sentence as excessive, with or without counsel, given that he "bargained for, and received, a specific, fixed sentence, and the sentencing court's discretion was limited to accepting or rejecting the plea agreement as a whole."
Johnson v. State, 334 P.3d 701, 702-03 (Alaska App. 2014).
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We accordingly AFFIRM the superior court's judgment.