Cleary v. State, 3059

• Decision Date: 25 May 1977
• Docket Number: No. 3059,3059
• Citation: 564 P.2d 374
• Parties: Michael Shane CLEARY, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 374

564 P.2d 374

Michael Shane CLEARY, Appellant, v. STATE of Alaska, Appellee.

No. 3059.

Supreme Court of Alaska.

May 25, 1977.

F. P. Pettyjohn, Anchorage, for appellant.

Ivan Lawner, Asst. Dist. Atty., and Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, ERWIN and BURKE, Justices.

OPINION

RABINOWITZ, Justice.

This appeal is taken from judgments and commitments which were entered by the superior court after the matters had been remanded from this court pursuant to our opinion in Cleary v. State, 548 P.2d 952 (Alaska 1976).

Appellant Michael Cleary was indicted on January 30, 1975, for four counts of robbery, in violation of AS 11.15.240, ¹ and in a separate indictment was charged with one count of attempted robbery and one count of robbery. The robberies spanned a period of time from January 9, 1975, to January 25, 1975. Cleary was also under indictment in the United States District Court for armed bank robbery. In March of 1975 Cleary pled guilty to the federal charge and was sentenced to a term of five years.

On May 16, 1975, Cleary pled guilty to the four counts of robbery and to the additional robbery count contained in the separate indictment. On July 21, 1975, Superior Court Judge Kalamarides sentenced Cleary to 10 years on each of the four robbery counts (in superior court No. 75-617 Cr.) and s0 years on the separate robbery count (in superior court No. 75-536). The sentences on the four robbery counts (No. 75-617 Cr.) were to run concurrently with each other and consecutively to both the federal sentence and the 10-year sentence which had been imposed on the separate state robbery charge. Thus, Judge Kalamarides sentenced Cleary to 20 years to follow the 5-year federal sentence. The sentences were appealed to this court and the matter was thereafter reversed and remanded to the superior court with instructions to vacate the sentences imposed and to resentence Cleary in conformity with our opinion in Cleary v. State, 548 P.2d 952 (Alaska 1976).

In our previous Cleary opinion we reiterated our view that we consider robbery among the most serious crimes ² and that:

Conduct such as that engaged in by Cleary calls for lengthy incarceration. With reference to the criteria enunciated in Chaney (State v. Chaney, Alaska, 477 P.2d 441), a substantial sanction is necessary to express the community's condemnation of such behavior so as to deter other members of the community from engaging in similar conduct. In addition, a long period of imprisonment unequivocally brings home to Cleary the seriousness of his dangerously unlawful conduct while preventing him from engaging in criminal conduct during the period of confinement. ³

After reviewing all aspects of the record in Cleary, we concluded that the superior court properly rejected the district attorney's recommended sentence which would have enabled Cleary to return to the community upon completion of service of his federal sentence. More particularly, we said in Cleary that:

In order to effectuate the goals enunciated in the State constitution, we think it was appropriate for the superior court to impose a sentence which would run consecutively to the federal sentence. It does not appear to us, however, that the principle of public protection requires Cleary's potential incarceration for an additional twenty years. ⁴

Upon remand the matter was assigned to Superior Court Judge C. J. Occhipinti. During the hearing on resentencing, at the superior court's insistence, counsel for the state recommended a sentence of 10 years imprisonment as to each of the five state robbery counts, all to be served concurrently with each other and consecutively to the federal sentence. At this sentencing hearing, the state did not produce any additional evidence. Although Cleary did not present witnesses either, he made a statement concerning his present rehabilitation program in a federal penitentiary. Counsel for Cleary recommended 7 1/2 years consecutive to the 5-year federal sentence. After taking the matter under advisement, the superior court sentenced Cleary to a 10-year sentence in No. 75-536 Cr. and 20 years on each of the four robbery counts in No. 75-617 Cr.; all sentences were made concurrent with each other; the 20-year sentences were made to run consecutively to the federal sentence, while the 10-year sentence in No. 75-536 Cr. was made concurrent with the federal sentence. ⁵ This second sentence appeal followed.

We have concluded that the 20-year sentences imposed by the superior court as to each of the four robbery counts in No. 75-617 Cr. are illegal sentences and therefore must be vacated. Cleary was indicted on, and pled guilty to, four violations of AS 11.15.240 for which the maximum sentence is 15 years. ⁶ In order for the superior court to have sentenced Cleary under AS 11.15.295, the state must have charged and proven that a firearm was used during the commission of the crimes. ⁷ Of controlling significance here is that Cleary pled guilty only to violations of AS 11.15.240. In this appeal, the state concedes that the sentences imposed by the superior court on the four robbery counts in No. 75-617 Cr. are 'clearly illegal, and should be reversed and remanded for resentencing.'

We now turn to the disposition which should be made upon our second remand of the four robbery counts in No. 75-617 Cr. Cleary was indicted on, and pled guilty to, four violations of AS 11.15.240 for which the maximum sentence is 15 years. Our re-examination of the record in the case at bar, in light of our initial decision in Cleary v. State, 548 P.2d 952 (Alaska 1976), persuades us that an appropriate sentence for these four robbery counts would be one that substantially parallels the recommendation made by counsel for the prosecution at the sentencing proceedings which were conducted after our initial remand of this matter. More particularly, we are in agreement with the state's recommendation that a sentence of 10 years imprisonment as to each of four robbery counts in No. 75-617 Cr., all to be served concurrently with each other and consecutively to the federal sentence, is an appropriate sentence under our decision in State v. Salinas, 362 P.2d 298, 301 (Alaska 1961), and the sentencing objectives articulated in State v. Chaney, 477 P.2d 441 (Alaska 1970), and its progeny.

One question remaining is whether the 10-year sentence in No. 75-536 Cr., which, according to the judgment and commitment in the matter, was to run concurrently with the 5-year federal sentence, is excessive. In our view, the superior court was not 'clearly mistaken' in imposing a 10-year sentence in No. 75-536 Cr., whether the sentence is to be served concurrently with, or consecutively to, the federal sentence. ⁸ In light of the seriousness of the offense, the record in this case, and what we consider to be an appropriate sentence as to the four robbery convictions in superior court No. 75-617 Cr., we conclude that the superior court's sentence in No. 75-536 Cr. was not excessive and is affirmed. ⁹

Because of the sentence imposed on our first remand, we consider it necessary to discuss and additional facet of this appeal. As mentioned previously, the only new fact elicited at the sentencing hearing on remand was that Cleary was presently enrolled in a rehabilitation program in the Oxford Federal Penitentiary in Madison, Wisconsin. Nevertheless, the superior court imposed sentences which were equivalent in length to the sentences this court had previously held excessive and had ordered vacated in Cleary v. State, 548 P.2d 952 (Alaska 1976). In regard to the obligation of the trial court upon remand of a matter from this court, we observed in State v. Salinas, 362 P.2d 298, 301 (Alaska 1961):

It is our view that upon remand of a case by this court it becomes the duty of the lower court to obey the mandate and render judgment in conformity. This rule is supported by the overwhelming weight of authority and is based on the policy that litigation must be finally ended. ¹⁰ (footnotes omitted)

Thus, we take this occasion to express our disapproval of the superior court's imposition upon remand of 20-year sentences on each of the four robbery counts in No. 75-617 Cr. which were made to run consecutively to the 5-year federal sentence. The superior court's sentence with respect to the four robbery counts was inconsistent with the holding of Cleary v. State, 548 P.2d 952 (Alaska 1976), and this court's mandate issued pursuant thereto as well as violative of the principles articulated in State v. Salinas, 362 P.2d 298, 301 (Alaska 1961).

The judgment and commitment in No. 75-536 Cr. is affirmed. The sentence in No. 75-617 Cr. is vacated and remanded for sentencing in conformity with this opinion.

BURKE, Justice, dissenting in part, concurring in part.

For the reasons expressed in my dissent in the first appeal of this case, Cleary v. State, 548 P.2d 952 (Alaska 1976), I am still of the opinion that appellant's original sentence was not clearly excessive. For those same reasons, and as further explained below, I now dissent from the...