Opinion
Court of Appeals No. A-10596.
August 17, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge, Trial Court No. 3AN-03-10475 CR.
John K. Bodick, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellant.
David E. George, Attorney at Law, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
On July 19, 2006, Superior Court Judge Philip R. Volland sentenced Craig Nicholas Berumen II in case no. 3AN-04-11581 CR ("the 2004 case") to fifty-four months' imprisonment to serve with six months suspended. At the same hearing, the court also sentenced Berumen in this case to twenty-four months' imprisonment with twenty months suspended for second-degree burglary. The court ordered that Berumen be placed on probation for concurrent periods of four years. The amended judgment also noted that the sentence in this case would be consecutive to the sentence in the 2004 case.
Berumen appealed his conviction in the 2004 case, and this court reversed. We directed the superior court to dismiss the 2004 case because the parties had stipulated that the issue on appeal was dispositive (it was a Cooksey appeal).
Berumen v. State, 182 P.3d 635, 642 (Alaska App. 2008).
Id.
Berumen was released from prison on May 15, 2009, but he violated a condition of his probation by failing to report to his probation officer. Berumen's probation officer filed a petition to revoke his probation. In response, Berumen filed a motion to terminate his probation. He argued that the time he served for this case was delayed by the time he served for the 2004 case. He claimed that if he had not been serving the invalid sentence in the 2004 case, then he would have served the entire sentence in this case.
Superior Court Judge Michael Spaan concluded that the commencement of the sentence in this case was delayed by the invalid sentence in the 2004 case and that Berumen was entitled to credit for the time he served in the 2004 case toward the suspended time remaining on this case. The State appeals from this ruling.
In Marker v. State, this court recognized that "there is authority for the proposition that `even if the offenses are technically unrelated, credit is allowed on a subsequent sentence for time served on [an] invalid sentence . . . when service of that previous term delayed commencement of the subsequent sentence." This observation is consistent with many other federal and state cases. In general,
Marker v. State, 829 P.2d 1191, 1195 (Alaska App. 1992) (quoting Sancinella v. Henderson, 380 F. Supp. 1393, 1395 (N.D. Ga. 1974), aff'd, 502 F.2d 784 (5th Cir. 1974)); see also Meadows v. Blackwell, 433 F.2d 1298, 1299 (5th Cir. 1970) (holding that the defendant was entitled to credit for time spent in custody since, "[h]ad it not been for the intervention of the invalid . . . sentence, the commencement of service of the remainder of his earlier sentence would have been advanced").
See, e.g., Blitz v. United States, 153 U.S. 308, 318 (1894) (indicating that, where two of three counts were later held invalid, the term of imprisonment for the remaining count should be held to commence from the date the original, invalid sentence commenced); Hoffman v. United States, 244 F.2d 378, 380 (9th Cir. 1957) (holding that, if a sentence imposed for some counts of an indictment is invalid, then the time for the simultaneously imposed consecutive sentence will begin "as of the date of the inception of the sentence under the [invalid] count"); Ekberg v. United States, 167 F.2d 380, 387-88 (1st Cir. 1948) ("Since the sentence on the [void] first count, which [the defendant] had fully served, was for the same length of imprisonment as the concurrent sentences imposed on the second and third counts, appellant is now entitled to release from prison."); Sancinella, 380 F. Supp. at 1395 ("[E]ven if the offenses are technically unrelated, credit is allowed on a subsequent sentence for time served on [an] invalid sentence when service of that previous term delayed commencement of the subsequent sentence."); Gardner v. Comm'r of Corr., 775 N.E.2d 426, 431 (Mass. App. 2002) ("[A] prisoner is entitled to credit toward a consecutive or `from and after' sentence for time served under an erroneous conviction when the prisoner would otherwise face dead time and where such an award would not clearly result in double credit nor allow the prisoner to `bank time' against future offenses.").
[w]here separate, consecutive sentences have been imposed at the same time — for example, under a multiple count indictment — and the conviction for which the earlier sentence was imposed is reversed, or the earlier sentence is otherwise invalidated, it has been held that the later sentence runs from the date on which imprisonment under the earlier sentence was commenced.
R.D. Hursh, Annotation, Effect of Invalidation of Sentence Upon Separate Sentence Which Runs Consecutively,68 A.L.R.2d 712 § 2(a) (1959).
On the other hand, prisoners may not "bank" time to use as a credit in future convictions.
See, e.g., Meadows, 433 F.2d at 1299 ("We do not intend that this opinion be interpreted as standing for the principle that prisoners may `bank' time. Rather, we intend that it be restricted to cases strictly within the factual situation here involved, i.e. time served on an invalid sentence at a time when a presently existing sentence could have been served."); Piggott v. Comm'r of Corr., 666 N.E.2d 1314, 1316 (Mass. App. 1996) ("In evaluating the proper scope of relief, judges are guided by twin principles: prisoners should, where possible, not be required to serve `dead time,' but have no right to bank time served against future offenses.").
Berumen's sentences appear to fall squarely within the scope of these decisions. This is not a case where there was a time gap between the imposition of the two sentences or where the defendant is trying to create an improper "line of credit" against a future sentence; the court articulated the sentences for both cases at the same hearing within seconds of each other. The judgment for this case expressly indicated that the sentence in this case was consecutive to the sentence in the 2004 case.
Had it not been for the sentence in the 2004 case, Berumen could have immediately started serving his otherwise consecutive sentence in this case since he could have rejected probation and served the suspended sentence. Allowing Berumen to credit the time served in the 2004 case against the time remaining in this case does not involve an improper banking of time since the sentence in this case was a "presently existing sentence" that Berumen could have served during the time he was serving the invalid sentence in the 2004 case. Our decision places Berumen in the position he would have been in had he immediately started serving the sentence in this case.
See Sweezey v. State, 167 P.3d 79, 80 (Alaska App. 2007) (recognizing a defendant's right to reject probation and serve a suspended sentence).
See Meadows, 433 F.2d at 1299.
See generally Walters v. State, 798 P.2d 357, 358 (Alaska App. 1990) (indicating that the court should treat parolees and probationers with basic fairness when determining whether to provide credit for time served).
The superior court properly concluded that the time Berumen served on the the 2004 case should be credited toward the remaining suspended time in this case. We therefore AFFIRM the decision of the superior court.
The question presented in this case is whether we should make an equitable adjustment to a defendant's composite term of imprisonment when (a) the defendant is sentenced to serve consecutive terms of imprisonment for two unrelated crimes, (b) the defendant begins serving the first of these consecutive sentences, but then (c) the conviction that gave rise to that first sentence is vacated by the trial court, or reversed on appeal, without possibility of retrial.
In Marker v. State, 829 P.2d 1191 (Alaska App. 1992), we noted that some courts have adopted an equitable rule to govern these cases. Under this equitable rule, a defendant in this situation would receive credit against their second sentence for the amount of time they spent serving the now-vacated first sentence. The rationale for giving the defendant this credit is that the defendant's service of the first sentence "delayed" the defendant's service of the second sentence. In other words, if the defendant had not been serving the now-vacated first sentence, the defendant could have begun serving their second sentence. Id. at 1195.
Although we noted this potential equitable solution in Marker, we did not have to decide whether to adopt this rule — because the defendant in Marker would not have been entitled to relief even if we adopted this rule. Ibid.
We did note, however, that even if a defendant in this situation should receive credit against another term of imprisonment that had already been imposed, it would be "inauspicious social policy" to adopt any rule that gave defendants a "line of credit" against future sentences. As we explained in Marker, if we allowed defendants to "bank" the time they served in prison on any sentence that was subsequently overturned, we would give these defendants "a sense of immunity" and a perverse incentive to engage in future criminal conduct. Ibid.
The defendant in the present appeal, Craig Berumen, received consecutive sentences for two unrelated crimes — a felony drug offense committed in 2004, and a burglary committed in 2003. The sentencing judge ordered Berumen to serve 4 years in prison for the drug offense, followed by 4 months in prison for the burglary offense, followed by probation on the burglary offense, with 20 months of suspended imprisonment hanging over Berumen's head.
Berumen was serving his first sentence — the drug sentence — when this Court reversed Berumen's drug conviction. See Berumen v. State, 182 P.3d 635, 642 (Alaska App. 2008). By that time, Berumen had served essentially all of his drug sentence. The superior court later concluded that, under the equitable rule discussed in Marker, Berumen should receive 4 years of credit against his burglary sentence for the time he spent in prison serving his drug sentence.
The superior court further concluded that this 4-year credit should apply not only to the 4 months of active imprisonment that Berumen received for the burglary, but also to the 20 months of suspended imprisonment that Berumen potentially faced if he violated his probation in the burglary case. Thus, under the superior court's ruling, Berumen's credit for serving the drug sentence completely negates Berumen's burglary sentence.
My two colleagues believe that the superior court correctly applied the equitable rule discussed in Marker. They therefore conclude (1) that this Court should now formally adopt the equitable rule discussed in Marker, and (2) that we should affirm the decision of the superior court as a correct application of that rule to the facts of Berumen's case.
But though my colleagues claim to be applying the equitable rule discussed in Marker, they are in fact doing the very thing that Marker says we must avoid: they are giving Berumen a "line of credit" against the 20-month suspended portion of his burglary sentence.
Berumen has never been ordered to serve this 20 months of suspended jail time. Indeed, under Alaska law, the superior court has no authority to order Berumen to serve this 20 months unless Berumen engages in future misconduct. Thus, when the superior court gave Berumen a 48-month credit against this 20 months of suspended jail time, the superior court was essentially giving Berumen immunity for any violation of his burglary probation. This Court should not affirm that ruling.
A more detailed description of the facts of Berumen's case
In July 2006, at a combined sentencing hearing, Berumen was sentenced in two unrelated criminal cases.
Berumen's first case (superior court file number 3AN-04-11581 Cr) stemmed from Berumen's commission of a felony drug offense, third-degree controlled substance misconduct. (Berumen was also convicted of two misdemeanor counts of contributing to the delinquency of a minor.) In this drug case, Berumen received a composite sentence of 48 months to serve.
Berumen's second case was, chronologically, an earlier case (superior court file number 3AN-03-10475 Cr) in which Berumen was convicted of burglary. Berumen originally received a suspended imposition of sentence in this burglary case. But in July 2006, the superior court revoked Berumen's SIS probation and sentenced him to 24 months with 20 months suspended — 4 months to serve. This 4-month sentence was made consecutive to Berumen's 48-month sentence in the drug case.
A little less than two years later, in May 2008, this Court reversed Berumen's convictions in the drug case. We held that the evidence against Berumen had been obtained unlawfully — a ruling that effectively barred any retrial. Berumen's drug case was formally dismissed on June 16, 2008.
Berumen v. State, 182 P.3d 635, 642 (Alaska App. 2008).
Following our reversal of Berumen's drug case, Berumen remained in prison to serve his 4-month active term of imprisonment in the burglary case. After serving that 4-month sentence (and, apparently, some other miscellaneous jail time), Berumen was released from prison on May 15, 2009. Upon his release, Berumen began his probation in the burglary case — with 20 months of suspended jail time hanging over his head.
Two weeks later, on May 28, 2009, the Department of Corrections petitioned the superior court to revoke Berumen's probation for misconduct that he committed after he was released from prison — specifically, failing to report to his probation officer following his release. The superior court issued a bench warrant for Berumen's arrest, and Berumen was arrested on June 12, 2009.
In early August 2009, with the probation revocation matter still pending, Berumen filed a motion to be released from further probation in the burglary case. Berumen asserted that, because he had served 48 months in prison in connection with his now-overturned drug case, he should get 48 months of credit against the suspended portion of his burglary sentence — and that, accordingly, there was nothing left of his burglary sentence. (As explained above, Berumen's burglary sentence was 4 months to serve, followed by probation with 20 months suspended.)
The superior court agreed with Berumen that, because he had already served the 48-month sentence in the drug case, and because Berumen's convictions in the drug case were overturned on appeal, Berumen became entitled to 48 months' credit against his sentence in the burglary case — including the 20 months of suspended imprisonment that had not yet been imposed. The superior court's written decision concludes with these words:
The time [that Berumen] served on the invalid sentence in [the drug case] shall be credited towards any suspended time he has remaining in the [burglary] case; resulting in the defendant having no suspended time remaining.
In other words, the superior court ruled that it did not make any difference whether the State proved that Berumen had violated the terms of his probation. Even if the State proved that Berumen failed to report to his probation officer as required, and even if the superior court concluded that Berumen's probation should be revoked on account of this misconduct, Berumen was entitled to a 48-month credit against any penalty that the superior court might impose for the probation violation. And because the superior court could impose no greater penalty than the 20-month suspended portion of Berumen's burglary sentence, Berumen was effectively immunized from any adverse consequences for his violation of probation.
Following this ruling, Berumen asked the superior court to schedule a hearing at which Berumen could formally reject further probation in the burglary case. (Under Alaska law, a defendant who has been sentenced to probation, with an accompanying suspended term of imprisonment, can reject further probation and demand that the sentencing judge impose some or all of the previously suspended jail time as an active sentence of imprisonment in lieu of probation.)
See Brown v. State, 559 P.2d 107, 111 n. 13 (Alaska 1977); State v. Henry, 240 P.3d 846, 848-49 (Alaska App. 2010).
On October 28, 2009, Berumen appeared in court and rejected further probation in his burglary case. The superior court had already ruled that Berumen was entitled to 48 months of credit against the 20 months of suspended jail time that remained in the burglary case. Accordingly, the superior court granted Berumen an unconditional release in the burglary case.
The State now appeals the superior court's action.
Why the superior court's decision violates the equitable rule discussed in Marker
In Marker, this Court suggested that if a defendant receives consecutive sentences for two crimes, and if the defendant serves some or all of the sentence for the first crime while the defendant's appeal is pending, and if the appellate court overturns the defendant's first conviction, so that the defendant must now serve only the sentence for the second crime, then the defendant should receive credit against this second sentence for the time the defendant spent in prison serving the now-overturned first sentence.
According to Marker, the rationale for this rule is that the defendant's service of the second sentence was "delayed" by the defendant's service of the now-overturned first sentence.
If the flaw in the defendant's first conviction had somehow been perceived immediately, the defendant could have immediately started serving the second sentence when the defendant went to prison following the sentencing hearing. But instead, the defendant had to serve some or all of the first sentence — until the first conviction was overturned — before the defendant could begin serving the second sentence. Thus, the defendant should receive credit against the second sentence for this period of "delay" — i.e., credit for the time that the defendant had to spend in prison before the defendant began serving the sentence that was imposed for the defendant's second crime. See Marker, 829 P.2d at 1195.
All of this makes sense if we are dealing with two "active" or non-suspended sentences of imprisonment. Imagine, for instance, that Berumen had received a composite term of 6 years to serve — 4 years for the drug crime, followed by a consecutive 2 years to serve for the burglary. If Berumen served 1½ years of the drug sentence before that conviction was overturned on appeal, then one can see why it would be fair to give Berumen a credit of 1½ years against the 2-year burglary sentence that remained. Or, if Berumen served the entire 4 years of his drug sentence before the drug conviction was overturned, then (under the same rationale) it would be fair to give Berumen 4 years of credit against the 2-year burglary sentence that remained — thus effectively satisfying that 2-year sentence.
But Berumen's burglary sentence was not 2 years to serve. Rather, it was 4 months to serve, followed by release on probation with 20 months of suspended imprisonment hanging over his head. If Berumen obeyed the conditions of his probation, he would never have to serve the 20 months of suspended imprisonment. The superior court could not order Berumen to serve those 20 months — or any portion of them — unless Berumen engaged in future acts of misconduct.
The point of a suspended sentence is to give defendants an incentive to successfully complete their probation — an incentive to behave themselves, and to reintegrate themselves into society, after they have been released from prison. Giving Berumen a 48-month credit against the suspended portion of his burglary sentence — a credit that essentially eliminates the suspended portion of the burglary sentence — utterly defeats these goals. Moreover, giving Berumen this credit against the suspended portion of his burglary sentence violates Marker.
In Marker, we suggested that we would be willing (or at least favorably inclined) to give defendants who served part or all of a later-overturned sentence an equivalent credit against another sentence that they had already been ordered to serve. But we declared that we would not adopt any rule that gave defendants a "line of credit" against future sentences. As the Marker decision explains, if we adopted a rule that allowed defendants to "bank" the time they served in prison on a sentence that was subsequently overturned, we would give these defendants "a sense of immunity" and a perverse incentive to engage in future criminal conduct. Id. at 1195.
But that is precisely what the superior court did in Berumen's case. When Berumen was released from prison and began his burglary probation, he failed to report to his probation officer. When the State petitioned the superior court to revoke Berumen's probation because of this post-release misconduct, Berumen essentially argued that he was immune from punishment for his behavior — because he was entitled to a 48-month credit against any sentence that the superior court might impose for his violation of probation.
The superior court adopted this argument — to the point where the superior court did not even bother to adjudicate whether Berumen had willfully failed to report to his probation officer. Under the superior court's view of things, this issue was moot. Even if the State proved that Berumen willfully violated the conditions of his probation, and even if the superior court concluded that this misconduct warranted imposition of the entire 20 months of suspended imprisonment (rather unlikely, given the circumstances), Berumen was entitled to a 48-month credit against this 20 months.
Given the fact that Berumen's violation of probation was fairly minor (a failure to report to his assigned probation officer on the day following his release from prison), there was very little chance that his sentencing judge would impose much — if any — of Berumen's 20 months of suspended imprisonment. Most likely, the sentencing judge would want Berumen to continue his probation, with most or all of his suspended sentence still hanging over his head.
But the superior court's decision to give Berumen 48 months of credit against his suspended sentence meant that Berumen was free to do what he liked in the future — to the point of completely ignoring the requirements of his probation — and he would suffer no consequences. The superior court's decision did not merely give Berumen the "sense of immunity" that Marker talks about. Instead, the superior court's decision gave Berumen real immunity.
The superior court recognized that this was the true effect of its decision. And, for this reason, the superior court readily granted Berumen's request for unconditional discharge from his probation supervision in the burglary case — because there was no point in continuing a "probation" that existed in name only.
This is precisely the result that the Marker court warned about: giving a defendant a "line of credit" against terms of imprisonment that might be imposed in the future — thus creating an incentive for the defendant to engage in future misconduct.
Under the equitable rule discussed in Marker, Berumen was entitled to credit against the 4 months of active imprisonment that he was ordered to serve in the burglary case. Apparently, neither Berumen nor his attorney thought to invoke Marker after this Court reversed Berumen's drug conviction, so Berumen served those 4 months of his burglary sentence, and then he was released on probation.
But Berumen was not entitled to credit against his remaining 20 months of suspended imprisonment — i.e., the portion of his burglary sentence that he had not yet been ordered to serve, and that he could not be ordered to serve, absent proof that he engaged in new misconduct.
The superior court committed error when it gave Berumen credit against this suspended sentence. I therefore dissent from my colleague's decision to affirm the superior court's action.