Opinion
Court of Appeals No. A-8878.
July 20, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-04-1161 CI.
Owen R. Massingill Jr., in propria persona, Anchorage, for the Appellant.
Marilyn J. Kamm, Assistant Attorney General, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Owen R. Massingill Jr. was convicted of several crimes in 1984. After his release from incarceration for these 1984 crimes, Massingill was convicted in 1994 of several more crimes. Based on the 1994 felony convictions, the superior court revoked a portion of Massingill's suspended term from the 1984 crimes and imposed that portion consecutively to the 1994 crimes.
In 2000 and 2001, Massingill sought relief in the form of habeas corpus (the superior court treated these cases as applications for post-conviction relief). Among his many claims, Massingill contended that it was error to revoke his probation and impose consecutive terms of imprisonment. In each case, the superior court dismissed Massingill's applications and Massingill did not appeal.
In May 2004, Massingill again filed a habeas corpus petition. The superior court again treated the petition as an application for post-conviction relief. Massingill again contended that the suspended imprisonment from the 1984 case, which was revoked based on his 1994 convictions, should not have been imposed consecutively. The superior court dismissed Massingill's application and Massingill now appeals.
We affirm the superior court because Massingill's application was procedurally barred. Addressing the substance of Massingill's claim, we note that the superior court properly imposed consecutive imprisonment.
Background facts and proceedings
In 1984, Massingill was convicted of manslaughter and tampering with physical evidence. The superior court imposed 10 years with 2 and 1/2 suspended on the manslaughter charge, and 2 years consecutive with all suspended on the tampering charge. We affirmed Massingill's sentence on appeal.
AS 11.41.120 AS 11.56.610, respectively.
Massingill's probation in the 1984 case was revoked based on conduct in 1985 when he consumed alcohol while in prison and assaulted a probation officer. His probation was again revoked in 1994 based on his admissions that he had committed disorderly conduct and fourth-degree assault. The superior court imposed 6 months of suspended imprisonment in each instance.
In 1995, Superior Court Judge Richard D. Savell again revoked Massingill's probation based on Massingill's new felony convictions for second-degree escape, second-degree robbery, and third-degree assault. The court imposed 2 and 1/2 years of the suspended imprisonment, leaving 1 year of suspended time remaining. The judgment provided that all conditions of probation remained in effect.
AS 11.56.310(a)(1)(B), AS 11.41.510(a) AS 11.41.220(a), respectively.
In December 2000, Massingill filed a petition for a writ of habeas corpus, contending that some of the judgments upon which he was imprisoned were illegal. The superior court treated Massingill's petition as an application for post-conviction relief. In April 2002, the court dismissed this post-conviction relief application.
In March 2001, Massingill filed a grievance appeal with the Department of Corrections in which he challenged the consecutive imposition of sentence in the two cases. The Director of Institutions responded on behalf of the Department of Corrections, denying Massingill's grievance appeal.
In July 2001, Massingill filed a second writ of habeas corpus, arguing that some of his sentence should have been served concurrently, but that he was being required to serve it consecutively. The State moved to dismiss the writ and require Massingill to file an application for post-conviction relief instead. The court dismissed the writ and directed Massingill to refile his petition and comply with Criminal Rule 35.1 within thirty days. In addition, the court required Massingill to clearly state his claim, the relief sought, and why he should obtain such relief. Massingill did not follow the court's order. He neither amended his application, nor appealed.
In May 2004, Massingill filed a third writ of habeas corpus, arguing that the suspended imprisonment imposed when his probation was revoked in 1995 could not lawfully be made consecutive to the sentences he received for his various 1994 convictions.
Judge Savell again treated Massingill's filing as an application for post-conviction relief. Judge Savell dismissed Massingill's application. On the merits, Judge Savell ruled that Massingill's sentence from his 1994 convictions must be consecutive to the probation revoked in his 1984 case. In addition, Judge Savell ruled that Massingill's application was time barred under AS 12.72.020.
Massingill's application was time barred
Massingill's application was barred by more than one subsection of AS 12.72.020. Under subsection (a)(6), Massingill's application was barred because "a previous application for post-conviction relief has been filed." And, under subsection (a)(5), Massingill's application was barred because Massingill's claim was "decided on its merits or on procedural grounds in [a] previous proceeding."
From our review of the record, we conclude that Judge Savell properly ruled that Massingill's application was time barred.
The superior court properly imposed consecutive imprisonment
Massingill challenges Judge Savell's decision to impose 2 and 1/2 years of his suspended imprisonment consecutively to the term the superior court imposed for his various 1994 convictions.
Massingill claims that former AS 12.55.025(e) supports his argument. (The Alaska Legislature repealed this provision in 2004. However, the session law provides that the repeal of subsection (e) applies to "offenses occurring on or after" July 1, 2004. Because all Massingill's offenses occurred prior to July 1, 2004, former AS 12.55.025(e) applies to his offenses.)
See Ch. 125, § 7, SLA 2004.
See Ch. 125, §§ 8-9, SLA 2004.
Former AS 12.55.025(e) provided in relevant part that "if the defendant has been convicted of two or more crimes, sentences of imprisonment shall run consecutively. If the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment."
In Jennings v. State, we held that trial judges are required to impose consecutive sentences on individuals convicted of crimes that were committed after they had been imprisoned on a former offense. Massingill argues that because Judge Savell did not explicitly state that the 2 and 1/2 years of suspended imprisonment was imposed consecutively, the time was to be served concurrently. But Judge Savell ruled that, as a matter of law under Jennings, the 2 and 1/2 years must be consecutive. We agree. Any sentence remaining on the 1984 case had to be served consecutively to the term imposed for the 1994 crimes. Conclusion
713 P.2d 1222 (Alaska App. 1986).
Id. at 1223.
See Smith v. State, 892 P.2d 202, 203 (Alaska App. 1995); Sanders v. State, 718 P.2d 167, 168 (Alaska App. 1986); Jennings, 713 P.2d at 1223.
The judgment of the superior court is AFFIRMED.