Opinion
No. S-203.
September 26, 1986.
Petition for review from the Superior Court, Third Judicial District, Anchorage, Ralph E. Moody, J.
Peter A. Michalski, Asst. Atty. Gen., Anchorage, Norman C. Gorsuch, Atty. Gen., Juneau, for petitioner.
Tina Kobayashi, Asst. Public Defender, Dana Fabe, Public Defender, Anchorage, for respondent.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
John Lekanof was sentenced by the Honorable Ralph E. Moody in a manner deemed illegal by the state. Pursuant to Appellate Rule 402, the state petitioned the Court of Appeals for review, which was denied. The state then petitioned this court for hearing, and the petition was granted. Alaska R.App.P. 302.
Our recent decision in State v. Andrews, 723 P.2d 85 (Alaska, 1986) (aff'g., 707 P.2d 900 (Alaska App. 1985)) disposes of the issues in this appeal. Under the Andrews analysis of AS 12.55.025(e) and (g), Judge Moody had the authority to impose a concurrent sentence for the assault conviction. The effect of imposing a consecutive sentence and then suspending it is the same as imposing concurrent sentences. The sentence is therefore AFFIRMED.
I dissent for the reasons expressed in my concurring opinion in State v. Andrews, 723 P.2d 85, 86-88 (Alaska, 1986). I believe the statute should be interpreted as authorizing concurrent sentences only if one of the criteria set out in AS 12.55.025(g)(1)-(3) are met.
The two crimes for which Lekanof was sentenced were first degree sexual assault involving a sexual assault on his girlfriend's twelve-year-old daughter on October 29, 1982, and second degree assault involving an attack on his girlfriend on November 11, 1982. I conclude that the requisite criteria of AS 12.55.025(g) are not met. The two crimes do not violate similar societal interests, (g)(1), they were not part of a single, continuous criminal episode, (g)(2), and there was a substantial change in the objective of the criminal episode (two different crimes occurring at different times, involving different victims), (g)(3).
I would hold that the superior court did not have authority to impose concurrent sentences in this case and therefore its imposition of a suspended consecutive presumptive sentence was illegal. See AS 12.55.125(g).