Opinion
Court of Appeals No. A-12054 No. 6274
01-27-2016
DWAYNE A. KEELING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Richard R. Moses, Assistant District Attorney, Kodiak, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3KO-13-472 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve Cole, Judge. Appearances: Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Richard R. Moses, Assistant District Attorney, Kodiak, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Pursuant to a plea bargain, Dwayne A. Keeling pleaded guilty to felony driving under the influence, and he also admitted that he had violated his probation from a prior conviction for felony DUI. The plea bargain called for Keeling to receive a sentence of 4 years with 2 years suspended in the new felony DUI case, and for Keeling to receive 5 months of his previously suspended jail time in the 2009 case. The parties further agreed that Keeling's probation from the 2009 case would be terminated, because (in the words of the pre-sentence investigator) that probation had been "unsuccessful".
The plea agreement left two components of Keeling's sentence to be resolved by the sentencing judge: the conditions of Keeling's probation for the new DUI conviction, and the length of that probation.
The superior court imposed a probationary term of 5 years' duration. Keeling now seeks to appeal this probationary term, claiming it is excessive. Keeling contends that the superior court should have imposed a significantly shorter period of probation.
We do not reach the merits of Keeling's argument — because Keeling does not have the right to appeal his sentence, and this Court has no jurisdiction to entertain Keeling's claim.
A defendant's right of sentence appeal is defined in Alaska Appellate Rule 215(a) and AS 12.55.120(a) and (e). Under both this rule and this statute, a defendant has a right to appeal a sentence in a felony case as excessive only if (1) the defendant has received more than 2 years of active imprisonment (i.e., more than 2 years to serve), and only if (2) the defendant's sentence was not imposed in accordance with a plea agreement that provided for the imposition of a specific sentence of imprisonment, or for a sentence equal to or less than a specified maximum sentence.
See Mund v. State, 325 P.3d 535 (Alaska App. 2014). --------
Keeling bargained for the precise sentence of imprisonment that he received. He therefore has no right of sentence appeal. And because Keeling has no right of sentence appeal, this Court has no jurisdiction to entertain his claim that his period of probation is excessive. AS 22.07.020(b).
Keeling is entitled to pursue his claim that his term of probation is unreasonably long, but he must do that by petitioning the supreme court to review his sentence under Appellate Rules 215(a)(5) and 403(h).
It is true that the State has not opposed Keeling's sentence appeal on this ground (i.e., Keeling's lack of entitlement to pursue an appeal, and this Court's lack of jurisdiction to entertain the appeal). But when an appellate court perceives a potential flaw in its subject-matter jurisdiction, the court is required to address and resolve this jurisdictional issue before moving forward. See Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008): "Subject matter jurisdiction ... may be raised at any stage of the litigation and[,] if noticed [by the court,] must be raised by the court if not raised by the parties." (Quoting Stone v. Stone, 647 P.2d 582, 584 n. 1 (Alaska 1982).) See also O'Link v. O'Link, 632 P.2d 225, 226 n. 2 (Alaska 1981); Alaska Civil Rule 12(h)(3).
Because we have no jurisdiction to review the purported excessiveness of Keeling's sentence, we refer his excessive claim to the Alaska Supreme Court under Appellate Rule 215(k) and AS 22.05.020(c).
Keeling raises one other claim — a claim that we have the authority to resolve, because it involves an assertion that the sentencing judge misunderstood the applicable law.
Keeling points to a place in the superior court's sentencing remarks where the judge referred to a 3-year term of probation as "a minimum" for a DUI. Based on this reference, Keeling argues that the judge mistakenly believed that Alaska law mandated a 3-year term of probation for offenders convicted of driving under the influence. Keeling therefore asks us to direct the superior court to reconsider his sentence.
But our review of the record convinces us that Keeling has taken the judge's remark out of context. The judge had just finished saying that, if this had been Keeling's first felony DUI, the judge would have placed Keeling on probation for 3 years "for the reasons [Keeling's attorney] just mentioned [in her sentencing argument]." But the judge then concluded that, "because [Keeling] didn't even make it through [his earlier term of] probation before committing another DUI", Keeling should be placed on probation for longer than 3 years:
The Court: [B]ecause you didn't even make it through a probation before committing another DUI, I'm not going to place you on a minimum, what I believe is three years on a DUI, and I'm going to place you on probation for five years.
In context, it seems clear that when the judge referred to "a minimum" term of probation, he was not referring to a legally mandated minimum, but rather to his own perception of what term of probation would have been appropriate if Keeling had not already been on probation when he committed this offense. We therefore reject Keeling's assertion that the judge misunderstood the applicable sentencing law.
Conclusion
With regard to Keeling's claim that the superior court misunderstood the applicable law, we AFFIRM the judgement of the superior court.
With regard to Keeling's claim that his sentence is excessive, his case must be treated as a petition for sentence review and TRANSFERRED to the supreme court under Appellate Rule 215(k).