Shagloak v. State, 3300

• Decision Date: 11 August 1978
• Docket Number: No. 3300,3300
• Citation: 582 P.2d 1034
• Parties: Davis David SHAGLOAK, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1034

582 P.2d 1034

Davis David SHAGLOAK, Appellant, v. STATE of Alaska, Appellee.

No. 3300.

Supreme Court of Alaska.

Aug. 11, 1978.

Chris J. Rigos, Asst. Public Defender, Brian C. Shortell, Public Defender, Anchorage, for appellant.

Monica Jenicek, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

MATTHEWS, Justice.

This is an appeal from the Superior Court's amendment of defendant's sentence after the entry of a written judgment and commitment and from the sentence imposed.

Davis David Shagloak was arrested on July 5, 1976 and charged with burglary in an occupied dwelling in violation of AS 11.20.080. He was subsequently indicted on that charge and pleaded guilty. Judge Lewis orally sentenced Shagloak, on December 30, 1976. The sentence, as it appears in the transcript, was pronounced as follows.

Davis David Shagloak, . . . it is the judgment and sentence of this court that you be committed to the custody of the commissioner of health and social services for a period of 15 years. And it is the expressed Recommendation of this court that you not be considered for Probation until one-half of that sentence has been at least one-half of that sentence has been served. (our emphasis)

Later that day, Judge Lewis signed a Judgment and Commitment conforming to the court's oral pronouncement of sentence. That document stated, in part:

IT IS ADJUDGED that the defendant is hereby committed to the custody of the Commissioner of the Department of Health and Social Services of the State of Alaska or his authorized representative for a period of FIFTEEN YEARS.

IT IS THE COURT'S RECOMMENDATION THAT PROBATION NOT BE CONSIDERED UNTIL AT LEAST ONE-HALF OF THE SENTENCE IS SERVED. (trial court's emphasis)

One month later, on February 1, 1977, an Assistant District Attorney moved to correct the judgment sheet to change the court's Recommendation that Probation not be granted until at least one-half the sentence is served to an Order that Parole not be granted until one-half the sentence is served. A date was set to hear oral arguments on the motion. In his opening remarks at that hearing, the judge stated that a "clear mistake" had been made with regard to the word "probation." After subsequently hearing arguments by both the defense and the State, the court amended the judgment to read as follows. ¹

It is the court's order that parole not be considered until at least one-half of the sentence is served.

There are two issues on appeal:

1. In amending the judgment and commitment, did the superior court violate defendant's protection against double jeopardy under the Alaska and United States Constitutions?

2. Was the superior court clearly mistaken in its imposition of a fifteen year sentence for the crime of burglary within a dwelling?

Amendment of the Sentence

Shagloak appeals from the court's imposition of the amended sentence and asks that his original sentence be reinstated.

The effect of the court's amendment of defendant's sentence was to increase his minimum incarceration before parole could be considered. Under the original judgment and commitment (where the court Recommended that the probation not be given until at least one-half of the sentence had been served), Shagloak would have been eligible for parole after five years of incarceration. ² Under the amended sentence (where the court Ordered that parole not be considered until one-half the sentence was served), Shagloak would not be eligible for parole until after at least seven and one-half years of incarceration. ³

We held in Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971) that "once a sentence has been meaningfully imposed, it may not, at a later time, be increased." An upward modification of a sentence meaningfully imposed would subject criminal defendants to the anxiety and insecurity against which the constitutional prohibition of double jeopardy stands as a safeguard. ⁴ The issue presented in this appeal requires us to explain the limits of a "meaningfully imposed" sentence.

A sentence is meaningfully imposed when it is legally imposed ⁵ and not subject to change under our Criminal Rules. Criminal Rule 35(a) and Criminal Rule 36 provide two means under which a sentence, once imposed, may be amended.

Rule 35(a) provides that the "court may correct an illegal sentence at any time." A sentence is illegal within the meaning of this rule if it is rendered in excess of an applicable statute. ⁶ In imposing fifteen years for the crime of burglary within an occupied dwelling at night, the court was within the sentencing constraints of AS 11.20.080. ⁷

The court's recommendation that the defendant not receive probation until at least one-half of his sentence was served, although a non sequitur, was likewise within the sentencing court's power. The court has no power to order probation more than 60 days after a sentence is imposed; ⁸ however, a Recommendation regarding probation does not contravene that prohibition. It is not probation, but parole, for which an accused may be considered eligible after a portion of his sentence has been served. Thus, the original sentence was legal and therefore not correctable under Rule 35(a).

Rule 36 ⁹ is available for the correction of "clerical mistakes" or "errors in the record arising from oversight or omission." We believe that where the effect of an amendment is to increase the severity of a sentence this rule must be interpreted to be applicable only to sentencing errors which obviously conflict with the intention of the court. ¹⁰ So construed, the rule is in consonance with the double jeopardy clause of the Alaska and United States Constitutions. It is clear to us that, using this test, the sentencing court meant to refer to parole rather than probation for throughout the sentencing colloquy between court and counsel the court used the terms parole and probation interchangeably.

The more critical question arising from the court's amendment of judgment is whether, under this test, the court can properly change its recommendation to an order. We think not. It is not obvious from the sentencing proceedings that the court sought to order that the defendant not be eligible for parole until one-half his sentence was served. Sentencing courts may either recommend or order a limitation on parole eligibility at the time of sentencing, or they may say nothing about the matter. A sentence embodying a recommendation that the Division of Corrections not grant parole until a specific portion of the sentence is served is not binding on the parole board, although it may be considered relevant by the board. An order, however, must be followed by the parole board in its determination of a prisoner's eligibility for parole. AS 33.15.230(a)(1). Either a recommendation or an order as to parole eligibility was logically possible and no obvious mistakes were committed by the court's use of the term "recommendation." That being so, the court's recommendation may not be amended to an order.

In reaching this conclusion, we do not question the veracity of the trial judge's statement that he intended to order rather than recommend parole. We believe that if Rule 36 is not to clash with the prohibition against double jeopardy, only an objectively ascertainable mistake a mistake which can be determined by contemporaneous record evidence will justify increasing a sentence.

Sentence Appeal

Shagloak claims that the court's sentence of fifteen years was excessive. When a sentence is appealed, we will remand for resentencing when our independent examination of the record reveals that the court's imposition of the contested sentence is clearly mistaken. State v. Chaney, 477 P.2d 441, 444 (Alaska 1970). The relevant factors for the consideration of this court in sentence review for excessiveness include "the nature of the crime, the defendant's character, and the need for protecting the public." State v. Chaney, supra at 443.

The offense for which Shagloak was convicted was burglary in an occupied dwelling. ¹¹ The crime can be recreated as follows. In the early morning hours of July 5, 1976, Shagloak entered the unlocked apartment of Mr. and Mrs. Frank Buschell. Shagloak went into the couple's bedroom where they were sleeping and took a gold nugget ring, some currency, and the woman's purse. There is no evidence that Shagloak was armed. After a few minutes inside, Shagloak exited the Buschell apartment with the loot and attempted entrance to other apartments in the same building. Shortly thereafter, the defendant was arrested. During the theft from the Buschell apartment, both occupants were asleep. They were awakened by investigating officers at 5:00 A.M. after the defendant had exited the apartment. It appears, however, that Mrs. Buschell has suffered severe emotional trauma from the incident and has submitted herself to her doctor's care in Seattle.

The presentence report indicates that Shagloak is a 29 year old Eskimo who was divorced in December 1976. His only recorded employment reveals that he worked for A-1 Janitorial for three weeks in May 1976 and for the Anchorage Westward for four weeks during the months of June and July 1976. His prior criminal record is of considerable length. His first arrest as an adult was for petty larceny. Over the course of the next seven years he was convicted six times for burglary in a dwelling, a felony offense, once for defrauding an innkeeper and once for escape. He has been arrested twice for probation violations. The record clearly demonstrates Shagloak's propensity for criminal activity. He has not been discouraged by more lenient sentences. During the past nine years, Shagloak has committed ten crimes for which he spent 61/2 years in prison.

The crime of burglary within an occupied dwelling is a serious crime. We agree with the trial judge's...