Tritt v. State, 4983

• Decision Date: 26 March 1981
• Docket Number: No. 4983,4983
• Parties: Joseph John TRITT, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 882

625 P.2d 882

Joseph John TRITT, Appellant, v. STATE of Alaska, Appellee.

No. 4983.

Court of Appeals of Alaska.

March 26, 1981.

Valerie M. Therrien, Fairbanks, for appellant.

Bill D. Murphree, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

This is an appeal brought by Joseph John Tritt from a three-year term of imprisonment imposed after revocation of his probation on a three-year suspended sentence for maliciously damaging an aircraft. ¹ Tritt argues that the sentence imposed violates his double jeopardy rights ² and, alternatively, that it is excessive.

I THE FACTS

In 1976, Tritt, then eighteen years old, became intoxicated and stabbed another person, inflicting near-fatal injuries. Upon conviction in early 1977 of assault with a dangerous weapon (ADW), imposition of Tritt's sentence was suspended, and he was placed on probation for three years. Later in 1977, again while intoxicated, Tritt maliciously damaged an aircraft in Arctic Village, where he lived. Tritt was eventually convicted and sentenced, in April of 1978, to a three-year term of imprisonment, all of which was suspended. He was placed on probation, conditions of which required him to pay restitution and to enroll in an inpatient alcohol rehabilitation program by September of 1978. The sentence for maliciously damaging an aircraft was made consecutive to the prior sentence on the ADW charge. A petition to revoke probation on the ADW charge was apparently filed after Tritt's arrest for damaging an aircraft; however, revocation proceedings were not actively pursued, and Tritt remained on probation.

Tritt failed to report to his alcoholism program in September 1978; he similarly failed to make restitution for the damaged aircraft. In October 1978, a petition to revoke Tritt's probation on the aircraft charge was filed in Fairbanks, and, since his whereabouts were unknown, an arrest warrant was issued. On January 10, 1979, Tritt was arrested in Anchorage after robbing a liquor store at gunpoint; he was thereafter indicted for armed robbery.

Soon after his arrest in Anchorage, Tritt was returned to Fairbanks, where his probation on the suspended imposition of sentence for his first conviction, ADW, was revoked; he was sentenced to serve a three-year term on that charge in March 1979. In July 1979 Tritt was returned to Anchorage, entered a guilty plea to the charge of robbery, and received a sentence of five years, with two suspended. This sentence was to be served concurrently with his recently imposed ADW sentence and his suspended sentence for damaging an aircraft.

After sentencing on the robbery in Anchorage, Tritt was again sent to Fairbanks, where, on September 26, 1979, he was found to have violated the conditions of his probation on the charge of damaging an aircraft. His probation on that charge was revoked, and the court imposed the full three-year term originally suspended. The sentencing court specified that the sentence was to be consecutive to both his three-year sentence for ADW and his five-year sentence (with two years suspended) for robbery. It is this sentence which is the subject of Tritt's appeal.

II THE DOUBLE JEOPARDY CLAIM

Tritt contends initially that consecutive imposition of his three-year sentence after revocation of his probation for damaging an aircraft constitutes an impermissible increase of his original sentence. Tritt relies for this contention primarily on Sonnier v. State, 483 P.2d 1003 (Alaska 1971). We cannot agree.

It was appropriate, upon revocation of Tritt's probation, to impose his sentence for damaging an aircraft consecutively to his three-year sentence for ADW. Tritt's original three-year suspended sentence for damaging an aircraft was specifically made consecutive to the sentence on his earlier ADW conviction. Thus the court's decision, after revoking Tritt's probation for damaging an aircraft, to impose sentence consecutively to his ADW sentence conformed to its original judgment. The consecutive sentence was not a new or additional component of Tritt's originally suspended sentence, and no increase resulted therefrom.

Tritt argues, however, that the court was precluded from imposing its sentence consecutively to the sentence which he received on the Anchorage robbery. Tritt maintains that this, in effect, increased the robbery sentence. A similar claim was advanced but rejected in Daniels v. State, 584 P.2d 47, 49 (Alaska 1978). We think that Daniels is controlling here. The sentence imposed upon revocation of probation for damaging an aircraft did not prolong or otherwise alter Tritt's earlier sentence for robbery, the terms of which remained constant.

Tritt emphasizes, though, that the sentencing judge on the Anchorage robbery conviction specifically intended his sentence to be concurrent with Tritt's sentence on the charge of damaging an aircraft. Tritt argues that, since it was intended that the robbery sentence be concurrent with whatever sentence he might receive upon revocation of probation for damaging an aircraft, the intent of the judge who imposed the robbery sentence must govern, foreclosing a subsequent consecutive sentence after revocation of probation for damaging an aircraft. ³ But this argument is unconvincing. Regardless of the intent of the sentencing court on the robbery charge, it had no authority to restrict the lawful sentencing options of the judge who later sentenced Tritt upon revocation of his probation for damaging an aircraft.

At the time of Tritt's sentencing, the authority to impose consecutive sentences was provided for by AS 11.05.050, which stated, in pertinent part:

If the defendant is convicted of two or more crimes, before judgment on either, the judgment may be that the imprisonment upon one conviction begins at the expiration of the imprisonment for any other of the crimes. If the defendant is imprisoned upon a previous judgment on a conviction for a crime, the judgment may be that the imprisonment commences at the expiration of the term limited by the previous judgment. ⁴

A plain reading of this statute reveals that it is a grant of authority, or jurisdiction, affirmatively empowering sentencing courts to impose consecutive sentences. The scope of the statute is broad, and it has been held that:

AS 11.05.050 authorizes consecutive sentences whenever a defendant is convicted of multiple offenses. AS 11.05.050 does not contain limitations on the court's power to impose consecutive sentences. ⁵

Under the language of this statute, when multiple convictions occur, each sentencing judge is specifically vested with authority to impose a sentence consecutive to any sentence imposed, or to be imposed, on the other convictions. Nothing in the statutory language, either express or implied, indicates that the decision of one judge not to impose a consecutive sentence on one of several convictions can deprive another judge, sentencing for a separate conviction, from availing himself of the option to sentence consecutively. We must therefore reject Tritt's claim that imposing his sentence for damaging an aircraft consecutively to his sentence for bank robbery impermissibly increased the robbery sentence.

The final facet of Tritt's double jeopardy argument raises an issue of first impression in Alaska. Tritt maintains that, since his originally suspended sentence for damaging an aircraft was made consecutive only to his initial ADW conviction, the fact that the three-year sentence which was imposed upon revocation of probation was made consecutive not only to his prior ADW sentence, but also to the sentence for his subsequent robbery, constitutes a prohibited increase of the term originally suspended.

After revoking probation on a suspended sentence, a court may impose any term of imprisonment up to and including the term originally suspended. Paul v. State, 560 P.2d 754, 758 & n.8 (Alaska 1977). It is equally well settled, however, that the sentence imposed may not exceed or increase the term originally suspended. Nelson v. State, 617 P.2d 502, 503 (Alaska 1981); Shagloak v. State, 582 P.2d 1034, 1036-38 (Alaska 1978); Franzen v. State, 573 P.2d 55, 56-57 (Alaska 1978); Huff v. State, 568 P.2d 1014, 1016 (Alaska 1977); Jackson v. State, 541 P.2d 23, 26 (Alaska 1975). See also AS 33.05.070(b). The precise question presented is whether an increase in sentence occurs when, upon revocation of probation, an originally suspended term is imposed consecutively to a sentence imposed for an offense occurring in the interim between suspension of the original sentence and its subsequent imposition after revocation of probation.

While no cases address this issue in Alaska, a number of federal cases have uniformly held that, upon revocation of probation, the sentencing court has the right to impose its sentence consecutively to sentences imposed for intervening offenses. United States v. Lustig, 555 F.2d 751, 753 (9th Cir. 1977); United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir. 1972); United States v. Tacoma, 199 F.2d 482 (2nd Cir. 1952). See also United States v. Liddy, 510 F.2d 669 (D.C.Cir.1974), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975). Moreover, in at least two sentence appeals, the Alaska Supreme Court has specifically upheld sentences imposed upon revocation of probation which were made consecutive to sentences for intervening crimes. Preston v. State, 583 P.2d 787 (Alaska 1978); Adams v. State, 521 P.2d 516 (Alaska 1974). ⁶

The situation involved here is distinguishable from that which was considered in the Alaska Supreme Court's recent decision in Nelson v. State, supra at 502. There, the court held that the addition for the first time upon revocation of probation of a requirement that the defendant serve a mandatory portion of his jail sentence prior to becoming...