Opinion
Court of Appeals No. A-12825 No. 6853
02-05-2020
EDWARD JOSEPH PAGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, and Edward Joseph Page, in propria persona, Wasilla, for the Appellant. Matthias Cicotte, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-15-10628 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, and Edward Joseph Page, in propria persona, Wasilla, for the Appellant. Matthias Cicotte, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Harbison, Judge, Mannheimer, Senior Judge, and Lyle, Superior Court Judge. Judge LYLE, writing for the Court. Judge MANNHEIMER, concurring.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Edward Joseph Page appeals the superior court's denial of his application for post-conviction relief. In his application, Page sought a declaratory ruling that his mandatory release date under AS 33.20 had already passed, and that he was therefore entitled to immediate release from prison on mandatory parole. For the reasons explained in this opinion, we affirm the superior court's denial of Page's application.
Procedural history of this litigation
Page was convicted by a jury of first-degree burglary, first-degree robbery, kidnapping, and two counts of first-degree sexual assault. Superior Court Judge Elaine M. Andrews sentenced Page to a composite term of 99 years of imprisonment.
Page appealed his convictions and his sentence. This Court affirmed Page's convictions, but we remanded the case for resentencing, directing the superior court to reconsider Page's composite sentence.
Page v. State, 1997 WL 45119, at *1, *13 (Alaska App. Feb. 5, 1997) (unpublished).
On remand, Judge Andrews sentenced Page to a composite term of 65 years of imprisonment. Page again appealed his sentence, but this Court affirmed the new sentence, concluding that it was not clearly mistaken.
Page v. State, 1999 WL 189587, at *1-2 (Alaska App. Apr. 7, 1999) (unpublished).
Page later filed a motion to correct his sentence. In his motion, Page claimed that Judge Andrews had not identified his "primary" offense when she resentenced him. Page also claimed that the Department of Corrections had miscalculated his discretionary parole date by misconstruing the concurrent sentences imposed in Judge Andrews's resentencing order. Nevertheless, in his briefing on the motion to correct his sentence, Page agreed that Judge Andrews had imposed a 65-year composite term.
Superior Court Judge Kevin M. Saxby (who was now assigned to the case) issued an order correcting Page's sentence. In this order, Judge Saxby identified Page's primary offense, and he reconciled the potential ambiguities in the terms of Page's concurrent sentences. Judge Saxby also concluded that Page's composite sentence remained 65 years of imprisonment.
Page filed an appeal from Judge Saxby's order. In his appeal, Page challenged Judge Saxby's finding as to which offense was his primary offense, but Page did not challenge Judge Saxby's conclusion that his composite sentence was 65 years of imprisonment. Page later declined to pursue this appeal; he dismissed the appeal before briefing.
Page subsequently filed an application for post-conviction relief, alleging that the Department of Corrections had miscalculated his mandatory parole release date. Page claimed that the Department had incorrectly calculated the effect of his concurrent sentences as spelled out in Judge Saxby's sentencing order when it performed its time-accounting calculation. Page also asserted there were ambiguities in the concurrent sentences that Judge Andrews had originally imposed, and he argued that both Judge Saxby's sentencing order and the Department's time-accounting calculation were flawed, since neither the judge nor the Department had resolved these purported ambiguities in Page's favor.
Page contended that, if his sentence was properly construed, he was entitled to immediate release on mandatory parole. (In fact, Page asserted that he had been held for more than five years past his mandatory release date.)
Under AS 33.20.030 and AS 33.20.040, a prisoner must be released from incarceration when the remaining portion of the prisoner's total active term of imprisonment equals their total good time credit.
Judge Saxby dismissed Page's application for post-conviction relief, finding that Page had failed to provide any grounds for believing that the Department had incorrectly computed his parole release date, or that he was being held in custody illegally.
This appeal followed.
Summary of our decision
A court may grant summary judgment on an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review this type of order de novo, viewing the evidence and all reasonable inferences in the light most favorable to the non-moving party. A trial court's decision may be affirmed "on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party."
Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011).
Brandner v. Pease, 361 P.3d 915, 920 (Alaska 2015).
We uphold the superior court's resolution of this case for two reasons. First, Page waived his present claim that his composite sentence is less than 65 years when he conceded (during the earlier litigation before Judge Saxby on his motion to correct his sentence) that his composite sentence was 65 years, and then failed to pursue his appeal of Judge Saxby's order.
Second, even if Page did not waive his present claim, we conclude (for the reasons explained in this opinion) that his composite sentence is unambiguously 65 years to serve and that the Department of Corrections properly calculated Page's mandatory release date.
Why we conclude that Page failed to preserve his argument that his composite sentence is less than 65 years to serve
As we noted above, Page was resentenced in 1998 (following his direct appeal to this Court). When Judge Andrews resentenced Page, she expressly stated that Page's new composite sentence was 65 years to serve. And when Page appealed his new sentence to this Court, we reviewed Page's sentence with the understanding that Page had received a composite sentence of 65 years. Page did not seek rehearing of our decision, nor did he indicate in any other way that he thought we had misconstrued his sentence.
Page, 1999 WL 189587, at *1.
Page later filed a motion to correct his sentence, claiming that Judge Andrews had not identified his "primary" offense when she resentenced him. Page also claimed that the Department of Corrections had miscalculated the date on which he became eligible for discretionary parole (by misconstruing the concurrent sentences imposed by Judge Andrews when she resentenced him).
During the litigation of Page's motion to correct his sentence, Page's attorney told Judge Saxby, "Mr. Page is not asking for a more lenient sentence — he agrees that his sentence imposes a 65-year composite term." And when Judge Saxby issued the order resolving Page's motion to correct his sentence, Judge Saxby confirmed that Page's composite sentence was 65 years of imprisonment.
As we have explained, Page initially filed an appeal of Judge Saxby's order, but in that appeal Page did not challenge Judge Saxby's conclusion that his composite sentence was 65 years of imprisonment. And in any event, Page later voluntarily dismissed his appeal of Judge Saxby's order.
In the present appeal, Page now claims that his composite sentence is less than 65 years. Given this procedural history, Page is estopped from raising this claim except as a matter of plain error. "We will not consider arguments that parties fail to raise in the lower court, let alone arguments they have conceded below, unless the trial court committed plain error." And for the reasons we are about to explain, we see no plain error here.
Tybus v. Holland, 989 P.2d 1281, 1285 (Alaska 1999) (citing Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988)).
Why we conclude there is no ambiguity in the composite sentence
Page claims that the wording of Judge Andrews's order on resentencing contains various ambiguities regarding the consecutive or concurrent nature of his separate sentences, and that these ambiguities must be construed in Page's favor when calculating his composite active term of imprisonment. According to Page, once these ambiguities are resolved in his favor, his resulting composite term of imprisonment is well under 65 years, and his mandatory parole release date has already passed. We disagree.
A prisoner's mandatory parole date is calculated by subtracting good time credit from the prisoner's composite sentence. The composite sentence is the sum of the consecutive sentences imposed on multiple counts or across multiple cases. Callan v. State, 904 P.2d 856, 857-58 (Alaska App. 1995); see also id. at 859 (Mannheimer, J., concurring) (explaining why, under Alaska law, a prisoner's various consecutive sentences should be treated as one composite sentence when calculating the prisoner's good time credit and parole release date).
"When we construe a judgment, we primarily seek to ascertain the sentencing judge's intention as stated in the contemporaneous sentencing record." Here, the key to understanding Judge Andrews's intention when she resentenced Page is to read each provision of her sentencing decision in the order that Judge Andrews wrote it, and to construe the provisions in light of Judge Andrews's announced intention to impose a 65-year composite term of imprisonment.
Lapp v. State, 220 P.3d 534, 537 (Alaska App. 2009) (citing Alvin v. State, 42 P.3d 1156, 1159 (Alaska App. 2002)).
The following table summarizes the sentences that Judge Andrews imposed for each count, including Judge Andrews's statements as to the concurrent or consecutive nature of each sentence. In this table, Page's sentences on each count are set out in the sequence that Judge Andrews announced them in her written sentencing order.
| Conviction | Sentenceimposed forthat count | Judge Andrews'sstatements regarding theconcurrent & consecutivenature of the sentence | Consecutive timeimposed for thatcount |
|---|---|---|---|
| I - Burglary 1 | 10 years | n/a | |
| II - Robbery 1 | 15 years | "Count I and Count II areconcurrent with eachother, and consecutiveto all other counts." | 15 years |
| III - SexualAssault 1 | 25 years | "Count III is consecutiveto all other counts." | 25 years |
| IV - SexualAssault 1 | 25 years | "Count IV runs ten yearsconcurrent with Count IIIand fifteen yearsconsecutive to Count III." | 15 years |
| VI - Kidnapping | 40 years | "Count VI runs thirtyyears concurrent and tenyears consecutive to allother counts." | 10 years |
When the consecutive portions of these five sentences are added together, the total comes to 65 years to serve — the same total that Judge Andrews stated she intended to impose.
Page argues that there are unresolved ambiguities in Judge Andrews's descriptions of the concurrent and consecutive portions of his five sentences. But these supposed ambiguities only exist if one reads the provisions of Judge Andrews's judgment out of sequence. When each provision of the judgment is read in the order it was written, and in light of Judge Andrews's expressed intention to impose a composite sentence of 65 years, the supposed ambiguities disappear.
We therefore reject Page's claim that his composite sentence is plainly something other than 65 years to serve, and we uphold Judge Saxby's dismissal of Page's application for post-conviction relief.
Conclusion
The judgment of the superior court is AFFIRMED. Judge MANNHEIMER, concurring.
More than twenty years ago, Edward Joseph Page was convicted by a jury of first-degree burglary, first-degree robbery, kidnapping, and two counts of first-degree sexual assault. He received a composite sentence of 99 years' imprisonment.
Page appealed both his convictions and his sentence to this Court. This Court affirmed Page's convictions, but we remanded Page's case to the superior court for reconsideration of his composite sentence. On remand, Superior Court Judge Elaine M. Andrews reduced Page's sentence, imposing a composite term of 65 years. Page again appealed his sentence, but this Court affirmed the 65-year term of imprisonment.
Page v. State (I), unpublished, 1997 WL 45119 at *13 (Alaska App. 1997).
Page v. State (II), unpublished, 1999 WL 189587 (Alaska App. 1999).
Page later filed a motion to correct his sentence. In this motion, Page claimed that his sentence was legally incomplete because Judge Andrews had not explicitly identified Page's "primary" offense. (A defendant's "primary" crime is a crucial factor in calculating when the defendant becomes eligible for discretionary parole.) Page also claimed that the Department of Corrections had misconstrued the concurrent-term provisions of his individual sentences — thus leading the Department to miscalculate the date on which Page became eligible for discretionary parole release.
See AS 33.16.090(b)(7) and AS 12.55.127(e)(4).
However, for purposes of the present appeal, the most important aspect of Page's motion to correct his sentence is that, when Page argued his motion, he explicitly agreed that Judge Andrews had imposed a composite term of 65 years.
By the time Page litigated this motion to correct his sentence, Judge Andrews had retired, and Page's case was assigned to Superior Court Judge Kevin M. Saxby. Judge Saxby issued an order that identified Page's primary offense and that resolved certain potential ambiguities in the terms of Page's concurrent sentences.
But again, for purposes of the present appeal, the most important aspect of Judge Saxby's order is that he confirmed what this Court had said in Page II, and what Page had explicitly acknowledged when he argued his motion: the fact that Judge Andrews had sentenced Page to a composite term of 65 years' imprisonment.
Page initially filed an appeal of Judge Saxby's order, but Page dismissed that appeal before briefing.
See order dismissing appeal dated October 20, 2014 in Court of Appeals File No. A-11921.
The present appeal arises from a petition for post-conviction relief that Page filed in 2015. In this post-conviction relief litigation, Page claimed that the Department of Corrections had miscalculated his mandatory release date—that is, the date on which Page would be entitled to mandatory parole release under AS 33.20.030 - 040.
Under the provisions of AS 33.20, if a prisoner is eligible for good time credit, the prisoner must be released from prison when their good time credit equals their remaining time to serve. Thus, when the Department of Corrections calculates a prisoner's prospective mandatory release date, the Department deducts the amount of the prisoner's good time credit from the length of the prisoner's composite active term of imprisonment.
In Page's case, the Department calculated his mandatory parole release date under the assumption that Page had received a composite sentence of 65 years to serve.
In Page's petition for post-conviction relief, and in the present appeal, Page contends that his composite term of imprisonment is not 65 years. Specifically, Page argues that both Judge Saxby and the Department of Corrections misconstrued the individual sentences that Judge Andrews imposed for Page's various crimes — and that, when the consecutive and concurrent portions of these individual sentences are correctly calculated, the result is a composite sentence that is substantially shorter than 65 years. Thus, according to Page, he has already reached his mandatory release date, and he is being held in prison illegally.
I conclude that Page is foreclosed from advancing this claim, on two separate grounds.
First, when this Court issued our decision in Page II, we expressly stated that Page's composite sentence was 65 years to serve, and this is the sentence that we reviewed for excessiveness. Page did not seek rehearing of our decision, nor did he petition the Alaska Supreme Court to review it, nor did he claim in any other fashion that we had misconstrued the record when we stated that his composite sentence was 65 years to serve.
See Page II, 1999 WL 189587 at *1.
Second, when Page litigated his post-appeal motion to correct his sentence, Judge Saxby expressly confirmed that Page's composite sentence was 65 years to serve. (Indeed, in Page's pleadings to the superior court, he acknowledged that he had received a 65-year sentence.) Page did not pursue an appeal of Judge Saxby's order.
Given this procedural history, Page cannot now pursue a petition for post-conviction relief to claim that his composite sentence is something other than 65 years' imprisonment.
Under AS 12.72.020(a)(2), a defendant cannot raise a claim in a post-conviction relief action if "the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction". And under AS 12.72.- 020(a)(5), a defendant cannot raise a claim in a post-conviction relief action if "the claim was decided on its merits or on procedural grounds in any previous proceeding".
For these reasons, in addition to the reasons explained in Judge Lyle's lead opinion, I join my colleagues in affirming the superior court's denial of Page's petition for post-conviction relief.