Page v. State, 020520 AKCA, A-12825

Docket Nº:A-12825
Opinion Judge:LYLE, JUDGE
Party Name:EDWARD JOSEPH PAGE, Appellant, v. STATE OF ALASKA, Appellee.
Attorney: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,...
Judge Panel:Before: Harbison, Judge, Mannheimer, Senior Judge, and Lyle, Superior Court Judge. Judge MANNHEIMER, concurring.
Case Date:February 05, 2020
Court:Court of Appeals of Alaska
 
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EDWARD JOSEPH PAGE, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12825

Court of Appeals of Alaska

February 5, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Trial Court No. 3AN-15-10628 CI

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. [**]

MEMORANDUM OPINION

LYLE, JUDGE

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.1

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.2

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.3 (In fact, Page asserted that he had been held for more than five years past his mandatory release date.)

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.[4] 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."5

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...

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