Opinion
A-13936
09-04-2024
ALEX TEJADA, Appellant, v. STATE OF ALASKA, Appellee.
Jason A. Weiner, Jason Weiner & Associates, P.C., Fairbanks, for the Appellant. Christopher W. Yandel, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-20-09526 CI, Andrew Guidi, Judge.
Jason A. Weiner, Jason Weiner & Associates, P.C., Fairbanks, for the Appellant.
Christopher W. Yandel, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM DECISION
Alex Tejada appeals the superior court's dismissal of his application for post-conviction relief. In his application, Tejada contends that the Department of Corrections unlawfully determined that the sentences imposed upon the revocation of his probation in two separate cases were consecutive.
Tejada was convicted after he entered into a plea agreement with the State in 2001. As required by the agreement, Tejada entered a plea of no contest to third-degree misconduct involving a controlled substance in one case and to fourth-degree misconduct involving a controlled substance in the second case. The trial court ultimately accepted the agreement and, in 2002, imposed sentences in accordance with it.
Former AS 11.71.030(a)(1) (2001) and former AS 11.71.040(a)(3)(A) (2001), respectively.
In 2014, after Tejada was released on probation, the State filed a petition to revoke probation in each of his cases. In 2016, Tejada rejected probation and was ordered to serve a portion of the suspended jail time in each case. Probation in each case was then terminated. The Department of Corrections determined that these sentences were to be served consecutively.
In response, Tejada filed an application for post-conviction relief, asserting that the trial court did not have the authority to impose consecutive sentences when it revoked his probation. According to Tejada, when the court imposed the original sentences in his case, it did not specify whether the suspended portion of his sentences were to be consecutive to one another or whether they were to be served concurrently. Tejada claimed that, given the trial court's silence on this matter, Alaska law required the sentences to be concurrent.
See Paige v. State, 115 P.3d 1244, 1246-47 (Alaska App. 2005) (citing Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005)).
The State filed a motion to dismiss Tejada's post-conviction relief application and also filed a motion for summary judgment. In these motions, the State asserted that the record of the 2002 sentencing hearing demonstrated that the sentencing judge intended to impose sentences consistent with the parties' agreement, which called for the suspended sentences to be consecutive. The superior court agreed and granted both motions.
The State's motion to dismiss included additional arguments in favor of dismissal, but the superior court did not rule on these arguments.
Tejada now appeals, renewing the claim he made in the superior court - that his sentences were deemed to be concurrent under Alaska law and thus, when he later rejected probation in these cases, the court did not have the authority to impose consecutive sentences when it imposed a portion of the suspended time and terminated Tejada's probation in each case. For the reasons explained in this opinion, we reject Tejada's claim.
Background facts and proceedings
At a change of plea hearing in 2001, Tejada pleaded no contest to two charges, in two different cases, pursuant to a written plea agreement. (As we discuss later in this opinion, neither the transcript nor the audio of the change of plea hearing is part of the record on appeal and the change of plea hearing was not relied upon by the parties or the superior court.) The written agreement signed by Tejada required the "periods of incarceration to be consecutive":
Defendant will agree to be sentenced in case number 3AN-S01-0670 (MICS4) to 24 months with 20 months suspended, and four (4) years probation. Defendant will agree to be sentenced in case number 3AN-S01-0594 (consolidated MICS3) to 36 months with 30 months suspended, and four (4) year[s] probation, with the periods of incarceration to be consecutive and the probation to be concurrent. Case number 3AN-S00-2322 (MICS 6) will be dismissed[.]
The written plea agreement did not indicate that any terms of Tejada's sentence would be left to the court's discretion. The sentencing hearing was set off for several months.
After Tejada entered his pleas but before the sentencing hearing, the attorneys became aware that Tejada was also facing federal charges. At Tejada's sentencing hearing, which took place in 2002, the defense attorney informed the court that the parties had entered into an agreement about how Tejada's state sentences would interact with his federal sentence. The attorney explained:
And the resolution is that the time that Mr. Tejada is to receive pursuant to the Rule 11 agreement will be concurrent to the federal time. But if Mr. Tejada violates and has any state violation and federal violation, the times - the state and the federal time will run consecutive to one another.
When the court imposed Tejada's sentence, it did not specify that the state sentences would be consecutive to one another, but it did announce that it was imposing sentences in accordance with the parties' agreement.
In 2014, after Tejada served his active incarceration in these cases and was released on probation, the State petitioned to revoke Tejada's probation. In 2016, Tejada rejected further probation in each case. The court imposed 10 of 20 months of suspended time for the fourth-degree drug misconduct charge and 20 of 30 months for the third-degree drug misconduct charge. The court ordered, in each case, that there would be "no probation to follow." The court did not specify whether these sentences were to be served consecutively or concurrently. But when the Department of Corrections calculated Tejada's release date, it determined that the sentences were consecutive.
In response, Tejada filed both an application for post-conviction relief and a motion to correct his sentence, which he characterized as "illegal." In these pleadings, Tejada argued that because the court did not explicitly state during his 2002 sentencing hearing that the suspended jail time was to be consecutive, Alaska law required the suspended time to be concurrent. According to Tejada, this meant that when the court imposed the flat sentences after he rejected further probation, the court did not have the authority to require any of the resulting jail time to be served consecutively, and accordingly, consecutive sentences were "illegal."
The trial court denied Tejada's motion to correct illegal sentence on the grounds that the application for post-conviction relief was addressing the same issues.
The State moved to dismiss Tejada's post-conviction relief application for failure to state a prima facie case for relief. The court appointed an attorney to represent Tejada, and the attorney amended Tejada's application.
In the amended application, the attorney raised the same legal argument contained in Tejada's pro se application. The attorney asserted that, at the 2002 sentencing hearing, the court had failed to indicate whether Tejada's suspended time would be consecutive or concurrent, thus requiring concurrent sentencing. The attorney also asserted that "the disposition orders and operative judgments" entered by the court "were silent or ambiguous on whether suspended time was concurrent or consecutive," resulting in an "illegal sentence." The attorney did not make any argument about the plea agreement, nor did the attorney ask the superior court to review the change of plea hearing or hold an evidentiary hearing on the parties' understanding of the plea agreement.
The State then moved for summary judgment, raising, inter alia, the same argument it had made in its motion to dismiss the application. In these pleadings, the State argued that the statements of the sentencing court and the parties, taken as a whole, showed that the sentencing court intended to adopt the agreement of the parties and impose the suspended periods of incarceration consecutively.
The superior court granted the State's motion for summary judgment. The court found that "[t]here [was] no dispute that the Rule 11 plea agreement required the suspended sentences in [the state cases] to be served consecutively" and that the sentencing court's remarks demonstrated its intention to adopt the parties' agreement. The superior court also granted the motion to dismiss, agreeing with the State's argument that the sentencing court's statements, taken as a whole, demonstrated an intent to adopt the parties' Alaska Criminal Rule 11 plea agreement and that the agreement required the suspended sentences to be served consecutively. Tejada appeals these orders.
The State argues that Tejada waived arguments related to the motion to dismiss, claiming that his brief addressed only the motion for summary judgment. We reject the State's contention.
Why we affirm the superior court's orders
In Paige v. State, we held that "when a sentencing judge did not specify that a defendant's sentences were to be served consecutively, or when the judge's remarks, taken as a whole, did not clearly show the judge's intent to impose consecutive sentences, the sentences should be deemed to have been imposed concurrently." Tejada argues that at his original sentencing hearing, the judge did not specify whether the suspended portion of Tejada's sentence was concurrent or consecutive, and he therefore argues that, under Paige, the suspended portion of his sentences must be run concurrently.
Paige, 115 P.3d at 1246-47 (citing Baker, 110 P.3d at 1002).
Paige, however, involved a sentence imposed after a trial, not an agreed-upon sentence imposed pursuant to a plea agreement. Tejada's argument is premised on the notion that the Paige rule categorically applies to the terms of a complete Rule 11 sentencing agreement and that the judge's failure to expressly state that the suspended time on the state sentences would be consecutive takes precedence over the reasonable expectations of the parties (and the court's statement that it intended to adopt the agreement of the parties). But Tejada does not cite to any cases that have applied Paige in this manner.
Id. at 1245-46.
We have referenced Paige and Baker in cases that involved plea agreements. But in those cases, we were applying Paige to a term of the agreement that was left to the court's discretion. See, e.g., Milazzo v. State, 2015 WL 428330, at *1 (Alaska App. Jan. 28, 2015) (unpublished) (holding that, under Paige and Baker, when the judge failed to specify whether an agreed-upon sentence would run consecutively to a sentence that the defendant was already serving, and the State did not assert that the plea agreement required a consecutive sentence, the superior court had no authority to later declare the sentences consecutive); Godsoe v. State, 2007 WL 1793148, at *2-3 (Alaska App. June 20, 2007) (unpublished) (holding that, in a case where the amount of suspended time on multiple charges was left open to the court's discretion, the judge's sentencing remarks as a whole sufficiently showed, under Baker, an intent to impose the suspended time consecutively).
To the contrary, if a court accepts a sentencing agreement, the court is required to impose the sentence agreed to by the parties. And if the parties agreed that the sentences would be served consecutively, it would violate the rules governing the enforcement of plea agreements to impose those sentences concurrently without giving the State the opportunity to withdraw from the agreement.
Alaska R. Crim. P. 11(e)(2) ("If the court accepts the agreement, the court shall impose sentence in accordance with the terms of that agreement."); Alaska R. Crim. P. 11(e)(3) (describing the applicable procedure for when a court rejects a plea agreement); see also Frankson v. State, 518 P.3d 743, 752 (Alaska App. 2022) (explaining that "Alaska Criminal Rule 11(e) only grants trial courts the authority to reject sentencing agreements; it does not grant trial courts any authority to reject charge agreements" (citing Alexiadis v. State, 355 P.3d 570, 573 (Alaska App. 2015)).
Our decision in Paige derives from the basic premise that it should be clear at the time of sentencing what sentence is being imposed, and that when this is not clear, any ambiguities must be construed in favor of the defendant. We apply a similar principle to the interpretation of plea agreements: any ambiguities in a plea agreement must also be construed in favor of the defendant.
See Chase v. State, 479 P.2d 337, 339-40 (Alaska 1971) (explaining that "[i]t is axiomatic that trial courts' final judgments, particularly sentences calling for incarceration in criminal matters, must be framed with clarity and accuracy in order to avoid the possibility of injustice and confusion," and "[i]t is similarly well established that where a criminal sentence is ambiguous, it must be interpreted in favor of the individual who has been deprived of his liberty").
Anthony v. State, 329 P.3d 1027, 1032 (Alaska App. 2014) ("If an undefined term in a plea agreement remains ambiguous - that is, if the State and the defendant each have differing but objectively reasonable interpretations of the term - the court is required to construe the ambiguity against the State, because the State is the party with the greater bargaining power.").
But how we apply this principle to plea agreements differs in a critical respect from how we apply the same principle to a court's oral sentencing remarks at open sentencing. Because a plea agreement is analogous to a contract formed between the government and the defendant, when there is a dispute about a term, we apply general contract principles, which means we "must look to the reasonable expectations of the parties at the time they entered the agreement." As we have previously explained: "When a provision of a contract is ambiguous and reasonably susceptible of two differing interpretations, a court will normally seek testimony concerning the parties' understanding of the provision at the time the contract was made, and will examine both case law interpreting similar language and relevant extrinsic evidence concerning the interpretation of the disputed language within the relevant community of contracting parties." It is only if a term or provision of the plea agreement remains "ambiguous" after conducting this analysis - i.e., "if the parties' differing interpretations are both objectively reasonable, given all the available evidence regarding the circumstances and purposes of the agreement" - that the court is then "required to construe the ambiguity against the State."
Id. at 1031-32.
Simon v. State, 121 P.3d 815, 821 (Alaska App. 2005) (citing Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004)); see also Ghosh v. State, 400 P.3d 147, 154 (Alaska App. 2017). Our dissenting colleague fails to address these cases and instead only discusses cases that analyzed the clarity of a sentencing record in the context of an open sentencing. See Cornwall v. State, 902 P.2d 336 (Alaska App. 1995); Carr v. State, 2006 WL 3530584 (Alaska App. Dec. 6, 2006) (unpublished).
Anthony, 329 P.3d at 1032; Ghosh, 400 P.3d at 154.
Here, Tejada's sole argument on appeal is that he is entitled to relief under Paige - that is, he argues that because the sentencing court did not clearly state on the record that his suspended time was to be served consecutively, it must be served concurrently. But as we have just explained, Tejada's sentence is governed by the plea agreement (and it is clear from the record that the superior court intended to sentence Tejada according to that agreement). Thus, for Tejada to receive the relief he seeks, he cannot begin his analysis by pointing to ambiguities in the court's sentencing remarks. Rather, he must first demonstrate that it was his expectation, at the time he entered the plea agreement, that the suspended portions of his sentences were to be served concurrently, or that the decision about this aspect of his sentence was left to the discretion of the sentencing court, and that this expectation was "objectively reasonable" in light of "all the evidence regarding the circumstances and purposes of the agreement."
Tejada, however, has never asked either the superior court or this Court to interpret his plea agreement using contract principles, and he never sought to present evidence about the parties' expectations at the time the plea agreement was entered. We note, for example, that when a defendant argues that the meaning of a plea agreement is ambiguous, a common source of evidence about the agreement's meaning is the defendant's change of plea hearing - i.e., the hearing in which the defendant entered his guilty plea. But Tejada's change of plea hearing is not part of the record in this case and neither the parties nor the court made any reference to that hearing during the post-conviction relief proceedings.
See, e.g., Dutton v. State, 970 P.2d 925, 928-29 (Alaska App. 1999) (relying on a change of plea hearing to determine the meaning of the defendant's plea agreement).
Under Alaska Appellate Rule 210(a), the record on appeal consists of the trial court file and the electronic record of proceedings in the case that is being appealed - which, in this instance, is Tejada's post-conviction relief case. When a post-conviction relief case is litigated, the judge and the parties often rely on documents contained in the underlying criminal file, or to transcripts of the proceedings in the underlying criminal case. When such documents and transcripts are formally filed in the post-conviction relief case or introduced as exhibits during the post-conviction relief proceedings, they become part of the court's file (and the record on appeal) for the post-conviction relief case. If the documents or transcripts are inadvertently omitted from the record on appeal, the party may file a motion asking this Court to supplement the record on appeal with those materials. Alaska R. App. P. 210(i). But that motion will only be granted if the party can point the Court to the place or places in the post-conviction relief proceedings where the judge or the parties relied on, or made reference to, portions of the record in the underlying criminal case. See Fajeriak v. State, 520 P.2d 795, 806 (Alaska 1974) (stating that the portions of the original criminal record on which a post-conviction relief applicant relies "must be specifically indicated to the trial judge" in the post-conviction relief case, even when the post-conviction relief judge presided over the original trial). In this case, no motion to supplement the record with the change of plea hearing was filed - most likely because the parties did not rely on it, or make more than passing reference to it, during the post-conviction relief proceedings.
It is clear, in other words, that Tejada never challenged the meaning of the plea agreement, nor did he provide the court with the tools it would need to resolve such a challenge. Indeed, Tejada himself never asserted that he subjectively believed that the suspended time would run concurrently, or that this term was left open to the court's discretion; he simply asserted that the judge's comments were not sufficiently clear.
Our dissenting colleague nonetheless concludes that the meaning of the plea agreement was contested by Tejada. Our colleague then evaluates the contours of the plea agreement in the first instance, ultimately concluding that "[b]ecause the plea agreement and the court's sentencing remarks did not address whether the suspended time on the state cases was structured consecutively, by law it should have been treated as concurrent."
But this would only be correct if it had been Tejada's subjective expectation, at the time he entered the plea agreement, either that the suspended portion of his state sentences would run concurrently or that this term was left open to the court's discretion, and that this subjective expectation was objectively reasonable. We fail to understand how any court could evaluate the truth of these propositions in the absence of evidence on the topic - without, for example, taking testimony from Tejada and the attorneys involved in the case, and without considering what the parties, the court, and the defendant said about the agreement during the change of plea hearing.
The dissent relies on the written plea agreement and the absence of any explicit discussion of this term at the sentencing hearing to affirmatively find that the parties did not address whether the suspended time on the state cases would run consecutively. But when the parties reach a plea agreement, the terms of that agreement, including any agreed-upon sentence, must be disclosed in open court at the time the plea is offered. Alaska R. Crim. P. 11(e)(1). Here, the Rule 11 agreement was placed on the record and accepted by the court during the change of plea hearing. Thus, if Tejada had challenged the meaning of the plea agreement, it would not have been sufficient to describe the sentencing proceedings; he also would have had to discuss what occurred during the change of plea hearing.
For these reasons, we reject Tejada's argument on appeal that he is entitled to relief under Paige.
We acknowledge, however, that this result would be unjust if it were obvious from the written plea agreement (or some other portion of the record available on appeal) that the parties intended to impose the suspended portion of Tejada's sentences concurrently. But the post-conviction relief court found that "[t]here [was] no dispute that the Rule 11 plea agreement required the suspended sentences . . . to be served consecutively." Tejada only obliquely addresses this finding in his appellate briefing, and he does not claim that the record clearly shows the opposite - i.e., that the suspended portion of his sentences were meant to be concurrent. Rather, he argues that the plea agreement was "conspicuously silent" on this point, and that the sentencing court's remarks were "substantially unclear."
For all the reasons we have just explained, any ambiguity in the written plea agreement does not mean Tejada is entitled to the relief he is requesting (i.e., the imposition of concurrent suspended time); rather, it only emphasizes that Tejada never asked the court to resolve that ambiguity using the traditional tools for interpreting plea agreements.
Furthermore, we disagree even with Tejada's modest argument that the plea agreement is "conspicuously silent" or that the sentencing court's remarks were "substantially unclear." Although the language of the written plea agreement is not perfectly clear, it tends to suggest - in the absence of any evidence of contrary expectations - that the suspended portions of Tejada's sentence were to be served consecutively, not concurrently.
The plea agreement required "the periods of incarceration to be consecutive." As a general matter, both active time and suspended time constitute "periods of incarceration." When a court imposes a sentence, it imposes an overall term of imprisonment, and it then "suspends" a portion of that term of imprisonment. It is this suspended term of imprisonment that we are referring to when we use the phrase "suspended time."
In Ray v. State, for example, the Alaska Supreme Court quoted a Department of Law bill review and a Senate Judiciary Committee sectional analysis that both referred to "the suspended period of incarceration." A similar example can be seen in AS 12.55.127(e)(1), in which the legislature defines the term "active term of imprisonment" to mean "the total term of imprisonment imposed for a crime, minus suspended imprisonment."
Ray v. State, 513 P.3d 1026, 1040-42 (Alaska 2022) (emphasis added).
AS 12.55.127(e)(1) (emphasis added). The dissent notes that this statute was enacted in 2004, after the parties' 2001 plea agreement. We are not suggesting that the parties knew about this statute when they entered the plea agreement. Rather, we cite the statute as an example of contemporaneous usagei.e., of someone else (here, the legislature) attaching a particular meaning to a word or phrase as evidence that the drafters of the provision presently at issue likely meant to use that word or phrase in the same manner. Examples of contemporaneous usage are a common tool of textual interpretation. See McGirt v. Oklahoma, 591 U.S. 894, 914 (2020) (explaining, in the context of statutory interpretation, that when a term is ambiguous, the court "will sometimes consult contemporaneous usages, customs, and practices to the extent they shed light on the meaning of the language in question at the time of enactment"). Because it is unlikely the meaning of phrases like "periods of incarceration" and "suspended time" changed significantly between 2001 and 2004, this statute is sufficiently contemporaneous to shed light on the meaning of the language used in the plea agreement.
We recognize that the phrase "periods of incarceration" may, in certain contexts, be used to refer only to active jail time. For example, this Court once distinguished between suspended time and a period of incarceration, writing that "the trial court could well conclude that suspended time, in addition to a period of incarceration, was warranted."
Young v. State, 762 P.2d 497, 499 (Alaska App. 1988).
But words and phrases must be understood in the context in which they are used. In that case, we were distinguishing between the defendant's suspended jail time and the active jail time, and we used the phrase "period of incarceration" to refer to the latter.
Id.
Here, by contrast, the phrase "periods of incarceration" was used in the written plea agreement not to distinguish active time from suspended time, but to distinguish the period of imprisonment from the period of probation. When used in this way, and without any evidence of the contrary expectations of the parties involved in drafting the plea agreement, there is nothing on the face of the record that demonstrates that the parties intended the suspended portions of Tejada's state sentences to be imposed concurrently.
See Ghosh v. State, 400 P.3d 147, 151-52 (Alaska App. 2017) (addressing situation where the parties actively disputed whether they intended "jail range" to refer solely to active jail time or also included suspended time).
For all these reasons, we conclude that the superior court did not err when it dismissed Tejada's application for post-conviction relief.
Conclusion
The judgment of the superior court is AFFIRMED.
Judge WOLLENBERG, concurring.
I agree with the Court's resolution of Tejada's appeal. I write separately to note that there is an additional reason for denying Tejada's claim.
Tejada has litigated this case entirely through the lens of his original plea agreement, and he has never addressed the significance of the 2016 disposition hearing on the petitions to revoke probation. But at the 2016 disposition hearing, Tejada rejected probation and got less than the full amount of suspended time on his cases imposed - 10 of 20 months in one case and 20 of 30 months in the other. As Tejada notes, the court did not indicate whether the time would run concurrently or consecutively.
But the trial court record shows that this time was imposed pursuant to an agreement with the State: under the agreement, Tejada would reject probation and get a certain amount of time imposed with probation to terminate. Tejada does not argue that the 2016 agreement with the State called for concurrent time. In fact, he does not address the terms of the 2016 agreement at all.
This is problematic. Even if Tejada's underlying sentence required the periods of suspended time to run concurrently, Tejada could still be sentenced to up to 30 months of suspended time on a single case (with 30 months being the greater of the two suspended terms), without running afoul of the prohibition on double jeopardy.This means that if the parties in 2016 intended that Tejada would serve 30 months, this sentence would still be permissible even under an understanding of the 2002 agreement in which suspended time ran concurrently, and it is therefore unclear why Tejada would be permitted to withdraw from the agreement. Tejada's failure to provide any information in the post-conviction relief proceedings about his understanding of the agreement in 2016 makes it difficult, if not impossible, to evaluate his ultimate claim that the Department of Corrections improperly assessed a sentence of 30 months for his probation revocations.
See Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971) (recognizing that the constitutional prohibition on double jeopardy precludes a court from increasing a defendant's sentence once it has been meaningfully imposed).
By 2016, the parties were represented by different attorneys than in 2002.
The dissent acknowledges that it would have been "preferable" for Tejada to litigate the terms of the 2016 agreement in the post-conviction relief proceedings. But Tejada's failure to do so is fatal to his claim. I fail to see why, in the absence of this information, Tejada is automatically entitled to have his suspended time run concurrently, as the dissent contends.
See Ghosh v. State, 400 P.3d 147, 155-56 (Alaska App. 2017) (recognizing that the defendant was not automatically entitled to the benefit of his attorney's asserted interpretation of the plea agreement without presenting evidence about his own understanding of the plea agreement and establishing both that his interpretation was objectively reasonable and that the judge would have accepted the plea agreement with that understanding of the term).
At most, Tejada would be entitled to a remand for an evidentiary hearing so that the court could take evidence on the parties' understanding of both the 2001 and 2016 agreements. But as the lead opinion notes, Tejada never meaningfully contested the underlying plea agreement itself or presented any material facts regarding the parties' understanding of the terms of that agreement that would have necessitated an evidentiary hearing.
I wish to make one additional point regarding the dissent. The dissent recognizes that plea agreements are contracts, but declines to apply the well-established rule that disputes regarding the meaning of a plea agreement are determined by ascertaining the reasonable expectations of the parties because, according to the dissent, sentencing terms involve "provisions of a criminal judgment that must be enforced by prison officials." While I agree that sentences should be as clear as possible at the time they are announced, courts lack the authority under Alaska law to unilaterally alter the terms of the plea agreement - i.e., in a manner that contradicts the reasonable expectations of the parties. The dissent's approach effectively permits courts to impose sentences that may contradict the reasonable expectations of the parties, in violation of our law's clear prohibition on such an approach.
See Alaska R. Crim. P. 11(e)(2)-(3); Ghosh, 400 P.3d at 154-56.
For these reasons, I concur with the Court's opinion.
Judge TERRELL, dissenting.
This case concerns fundamental issues of sentencing law. First, if sentences for multiple counts or cases are being imposed in a single sentencing proceeding, and the court (or the parties, if the case is being resolved pursuant to a plea agreement) wish to make either active or suspended time run consecutively, how clear must the court's sentencing remarks or the plea agreement be? Second, if the clarity needed to treat active or suspended time as consecutive to another active or suspended term is lacking, is there a default rule that the provisions are to be treated as concurrent?
I begin this introduction by setting out what I view as common ground with the majority in terms of what the law is in non-plea-agreement situations.
All sources of Alaska law - court rules, statutes, and case law - require sentencing courts to provide a clear statement of the terms of a criminal sentence. In Chase v. State, the lead case setting out the clear-statement rule, the Alaska Supreme Court explained that this rule provides clarity not only for defendants, but also for the prison officials who must administer criminal judgments and need to know exactly how long to incarcerate a person. The clear-statement rule exists "so that both the defendant and the officials charged with executing the sentence will be fairly apprised of the intentions of the court." The Chase court cited an Illinois decision for the proposition that "[a] sentence should be so complete as not to require construction by the court to ascertain its import, and so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning."
See Alaska R. Crim. P. 32.2(c)(1) (requiring the court to "state clearly the precise terms of the sentence"); AS 12.55.025(a)(3) (requiring courts when imposing sentences exceeding 180 days to give "a clear statement of the terms of the sentence imposed"); Chase v. State, 479 P.2d 337, 339 (Alaska 1971) ("[A] sentence imposed by a court acting in a criminal case should be definite, unequivocal and unambiguous[.]").
Chase, 479 P.2d at 339 (emphasis added).
Id. at 340-41 (quoting People v. Walton, 254 N.E.2d 190, 194-95 (Ill. App. 1969)).
However, sentencing proceedings often require courts to make findings and apply multiple different legal standards. Unfortunately, sometimes a court in the press of the moment will address a particular provision of the sentence - including whether sentences on separate cases or counts are meant to be consecutive - with less-than-optimal clarity. The specific issue presented here is, what is the minimal degree of clarity that is required to impose consecutive sentences? In Chase, the supreme court also set out the backstop to the clear-statement rule. It stated that "the validity of a sentence will not be affected where, despite technical imperfection or uncertainty, there can be no reasonable doubt as to the intention of the sentencing court."
Id. at 340.
Moreover, under long-standing Alaska law, if a sentencing court at open sentencing fails to specify that sentences are to run consecutively, they are deemed to be concurrent. This rule deftly resolves double jeopardy concerns by fixing, at the outset, the defendant's sentencing exposure. For example, when sentencing a defendant to serve multiple partially suspended sentences, if the court clearly indicates that the suspended time is consecutive, the defendant knows that future probation revocation sentences may be served consecutively. However, if the court is silent or unclear about whether the suspended time is consecutive, the defendant is assured that any probation revocation sentences will be required to run concurrently.
A default rule that sentences will be deemed concurrent if the court's sentencing remarks are silent as to the concurrent/consecutive issue reflects a careful balancing of competing criminal justice concerns. On the one hand, awarding concurrent sentences can appear to be giving an improper "volume discount" for committing more than one crime. For example, if a person has committed two separate crimes that would each warrant a 3-year sentence, it may intuitively seem that the person should get a 6-year composite sentence, not two 3-year concurrent sentences. And for certain of the most serious crimes - murder, sexual assault, and various crimes against the person - our legislature has struck the balance in favor of requiring some amount of consecutive sentencing when they are committed multiple times or in conjunction with other crimes. But consecutive sentencing also has the effect of filling up prison beds, which can impact public safety if there are insufficient beds left to house dangerous offenders. Thus, reserving mandatory consecutive sentencing for the most serious crimes and relying on a rule that, where consecutive sentences are not required, sentences will be treated as concurrent unless the court expressly states otherwise, strikes a careful balance between all these competing considerations.
See AS 12.55.127(c)-(d).
My colleagues and I disagree regarding how all of the above translates to the plea agreement situation. My colleagues conclude that ascertaining the parties' reasonable expectations with respect to whether a plea agreement structured sentences consecutively or concurrently calls for a different approach and for rejecting this default rule. I disagree that the involvement of a plea agreement calls for a different rule.
In this case, the question is whether the 2001 plea agreement resolving Tejada's state cases, as modified and adopted at sentencing in 2002, clearly structured the suspended time on the state cases consecutively, so that when Tejada later violated his probation conditions, this consecutive composite amount of time was available to be imposed. The requisite clarity is lacking. The sentencing court did not explicitly state that the suspended time on the state sentences was structured consecutively. The plea agreement did not contain such a provision. Critically, neither the court's sentencing remarks nor the plea agreement can be interpreted, beyond a reasonable doubt, to reflect an intent that the suspended time on the state sentences was structured consecutively. The plea agreement, as orally modified by the parties, specifically addressed the concurrent/consecutive service issue only as to (1) the active time to serve on Tejada's state cases and his federal case, (2) the probation supervision periods on his state cases, and (3) any future state and federal probation revocation sentences.
My colleagues disagree, concluding that even if a clear-statement rule applies to plea agreements, the intent to structure the suspended time on the state cases consecutively is evident in the plea agreement's language that "periods of incarceration [are] to be consecutive." My colleagues conclude that, viewed objectively, the phrase "periods of incarceration" in this case encompasses not only the active periods of incarceration on the state cases but also any probation revocation sentences that might be later imposed. I conclude that the "periods of incarceration to be consecutive" phrase is at best ambiguous with respect to whether the parties intended to encompass the suspended time on Tejada's state cases. Tejada was thus correct to argue that the suspended time on his state sentences was required to be treated as concurrent.
Moreover, the available record shows that when Tejada's probation was revoked in 2016, the superior court was silent about whether the probation revocation sentences on each state case would run concurrently or consecutively. And although counsel stated at that hearing that sentencing was pursuant to an agreement, counsel did not assert that the agreement addressed whether the sentences were to be served consecutively or concurrently. In this posture, the Department of Corrections (DOC), as an executive branch agency that lacks independent sentencing authority and has a ministerial duty to carry out the criminal judgments of the courts, had no authority to sua sponte decide to run Tejada's probation revocation sentences consecutively. I would reverse the superior court's grant of summary judgment to the State and remand for entry of judgment in favor of Tejada.
Judge Wollenberg notes in her concurrence that this issue of whether any 2016 agreement addressed consecutive service of the probation revocation sentences could have been litigated in the post-conviction relief court. While I agree that that would have been preferable, I am content to review this case based on the decision that was rendered and the issues it encompasses.
The astute reader may wonder why this Court is still concerned with whether 10-and 20-month probation revocation sentences imposed in 2016 are consecutive or concurrent. The difference between the two potential composite sentences is only 10 months and this is 2024. The answer is that in 2015, Tejada was indicted on federal charges and later received a 140-month prison term followed by 8 years of supervised release. See United States v. Tejeda, 2022 WL 3594257, at *1 (9th Cir. Aug. 23, 2022) (unpublished); United States v. Tejeda, 2021 WL 149674, at *1 (D. Alaska Jan. 15, 2021) (unpublished). As Tejada has noted, his state probation revocation sentences delayed the start of his federal sentence, and if the end date of the probation revocation sentences was brought forward by 10 months, his federal sentence, which is still in effect, would begin and end earlier.
I begin my analysis with a basic discussion of why the plea agreement and sentencing record are insufficient to conclude beyond a reasonable doubt that the plea agreement called for the suspended time on Tejada's state sentences to be structured consecutively. I follow that with a discussion of why I disagree with the majority's conclusion that Tejada has never challenged the State's assertion that the plea agreement structured the suspended time on his state sentences consecutively. For the reader interested in a more in-depth discussion of the substantive legal principles, that discussion follows after these first two sections. In that discussion, I explain why I conclude that the fact that this case involves a plea agreement should not alter the legal analysis.
Why I conclude that the plea agreement and sentencing record do not clearly address whether the suspended time on Tejada's state sentences was structured consecutively
The relevant portion of the plea agreement states:
Defendant will agree to be sentenced in case number 3AN-S01-0670 (MICS4) to 24 months with 20 months suspended, and four (4) years probation. Defendant will agree to be sentenced in case number 3AN-S01-0594 (consolidated MICS3) to 36 months with 30 months suspended, and four
(4) year[s] probation, with the periods of incarceration to be consecutive and the probation to be concurrent.
The agreement also contained an integration clause, i.e., a provision stating that "the terms of [the] agreement are completely set out by this document." What follows now is my analysis of the key points relied on by the majority, the State, and the postconviction relief court in interpreting this provision.
The majority asserts that "both active time and suspended time are periods of incarceration." For this proposition, the majority gives as an example AS 12.55.127(e)(1), which defines "active term of imprisonment" as "the total term of imprisonment imposed for a crime, minus suspended imprisonment." The majority asserts that "the phrase 'periods of incarceration' was used in the written plea agreement not to distinguish active time from suspended time, but to distinguish the period of imprisonment from the period of probation." But in fact, the parties and the court used this phrase to refer to the active time imposed, not including suspended time, and carefully differentiated between all the constituent parts of a partially suspended sentence. The fact that they did so underscores Tejada's point that the plea agreement did not address whether the suspended time on his state cases was to run consecutively.
First, a plea agreement is a contract, and Alaska law requires us to assume that lawyers drafting contracts use words giving them "their ordinary, contemporary, common meaning" unless they are otherwise defined. The ordinary meaning of "incarceration" is "[t]he act or process of confining someone; imprisonment." It is a present status, enforced by physical restraints and/or the presence of persons whose function it is to ensure that the person remains confined. By contrast, suspended time is inchoate, inactive until activated by the fact of probation revocation. Indeed, the Alaska Supreme Court has recognized in the statutory context that "incarceration" has a common meaning that is different than "probation" and that if the legislature wished to use "probation" in a non-standard manner that would include time in prison, it needed to specify this meaning. The ordinary meaning of "periods of incarceration" does not include suspended time.
SMJ Gen. Constr., Inc. v. Jet Com. Constr., LLC, 440 P.3d 210, 215 (Alaska 2019).
Incarceration, Black's Law Dictionary (12th ed. 2024); see also Incarceration, Merriam-Webster Dictionary (Rev. ed. 2022) ("confinement in a jail or prison; the act of imprisoning someone or the state of being imprisoned").
See, e.g., Fowler v. State, 225 So.3d 1005, 1007 (Fla. App. 2017) (stating that a suspended sentence is inchoate); DiPietrantonio v. State, 487 A.2d 676, 678 (Md. Spec. App. 1985) (stating that a suspended sentence is "in posse" (a possibility)).
Boyne v. State, 586 P.2d 1250, 1251 & n.3 (Alaska 1978).
But to the degree that AS 12.55.127(e)(1) - enacted in 2004, after the parties' 2001 plea agreement - simply codified the common use of terminology by Alaska courts and practitioners regarding partially suspended sentences, its references to "total term of imprisonment," "active term of imprisonment," and "suspended imprisonment" are a correct but slightly incomplete list of terms associated with partially suspended sentences. It is helpful to examine all of these terms in order to evaluate the parties' sentencing arguments.
SLA 2004, ch. 125, § 3.
Partially suspended sentences - authorized by AS 12.55.080 - involve the court suspending part of the term of imprisonment, contingent on the defendant's compliance with probation conditions. The defendant must initially serve a term of incarceration that is equal to the total term minus the amount of suspended time. This initial term of incarceration is referred to as the "active time" or "active term." Once the defendant has served the active term, they are released onto probation. At sentencing, the court must specify the probation period, which is the length of time that the defendant is subject to probation supervision (and is conceptually distinct from the amount of suspended time). If the defendant violates their probation conditions, then the court may revoke their probation and impose some or all of the suspended time.When the suspended time is imposed, it is frequently referred to as a probation revocation sentence. A probation revocation sentence derives its existence from - but is conceptually distinct from - the inchoate suspended time that exists prior to probation revocation. Practitioners occasionally use the terms interchangeably when discussing probation colloquially on record.
See, e.g., Martinez v. State, 530 P.3d 1131, 1141-42 (Alaska App. 2023) ("active time"); Blalock v. State, 452 P.3d 675, 687 (Alaska App. 2019) ("active time"); Seaman v. State, 499 P.3d 1028, 1030 (Alaska App. 2021) ("active term"). Sometimes the terms are used interchangeably. See Smith v. State, 349 P.3d 1087, 1091 (Alaska App. 2015).
See Hill v. State, 22 P.3d 24, 28 (Alaska App. 2001).
See Christensen v. State, 844 P.2d 557, 559 (Alaska App. 1993).
See Seaman, 499 P.3d at 1030.
See, e.g., Jeter v. State, 393 P.3d 438, 439 (Alaska App. 2017); Grant v. State, 379 P.3d 993, 994 (Alaska App. 2016).
The court and counsel used these terms at Tejada's 2002 sentencing in a nuanced way, showing they were not making a simple binary distinction between "periods of incarceration" and "periods of probation." For example, the court and counsel had the following exchange:
Defense counsel: And the resolution is that the time that Mr. Tejada is to receive pursuant to the Rule 11 agreement will be concurrent to the federal time. But if Mr. Tejada violates and has any state violation and federal violation, the times - the state and federal time will run consecutive to one another. Any suspended time will run -
Court: So suspended time -
Defense counsel: - consecutive.
Court: - is consecutive.
Defense counsel: Consecutive.
Court: The active time is concurrent.
Defense counsel: Correct.
Court: All right.
This exchange shows that the court and counsel distinguished between "active time," - the time Tejada immediately faced as a result of his state and federal sentences - and "suspended time" (while using the latter term somewhat interchangeably with a probation revocation sentence).
Later, while explaining an aspect of the agreement to Tejada, his attorney stated that "[t]he only thing you're getting is the 10 months of active jail time here [in the state cases] is going to run at the same time as the 157 months [in the federal case]." This exchange shows that Tejada's attorney also equated "periods of incarceration" to "active time" (because the agreement called for the 4-month and 6-month active jail terms in each state case to run consecutively to each other, for a 10-month composite).
Shortly after that, the court used language reflecting a precise understanding of the difference between suspended time and a probation supervision period, stating that "I think the only thing that [the plea agreement] does say is that the probation period is concurrent, not the consec - not the suspended time - but the probation period is concurrent, if that's what your concern is."
After further discussion of the concurrent probation and other matters, the court accepted the plea agreement, stating as follows:
Okay. I'll find that the negotiated disposition satisfies the sentencing criteria and I will follow it. And pursuant to the agreement in case number 01-670, the sentence will be 24 months with 20 suspended for a period of four years probation. And in 01-594, it will be 36 months with 30 suspended for four years probation.
The periods of incarceration, for the record, are consecutive but they're - to each other, but they're concurrent with the federal sentence that you're serving.
And the suspended time will be consecutive to the federal time, and the probationary period will run at the same time as the federal probationary period.
This language demonstrates that the court carefully distinguished between the active periods of incarceration, the suspended time, and the probation supervision periods.
Viewed collectively, the language of the plea agreement and the remarks of court and counsel at sentencing demonstrate a precise awareness of all the constituent parts of a partially suspended sentence. The language in the plea agreement thus reflects more than a simple binary distinction between probation supervision periods and all other aspects of a partially suspended sentence. Indeed, the careful use of "suspended time" shows that the plea agreement, or the court and parties' statements at sentencing, would have clearly stated that the suspended time on the state sentences was consecutive, had that been intended. This strongly undermines the majority's view that the parties somehow tucked this concept into the phrase "periods of incarceration." The plural reference to "periods" of incarceration is most naturally read as simply referring to the active time imposed on Tejada's two state cases.
My colleagues conclude that their interpretation of the phrase "periods of incarceration" is bolstered by the fact that Tejada supposedly has "never challenged the meaning of the plea agreement." But Tejada asserted in his superior court motion work and his appellate briefing that "the Criminal Rule 11 agreement was silent on whether the suspended portion of his jail time . . . ran consecutively or concurrently[,]" and that the parties failed to contemplate this issue. Tejada has consistently asserted that no portion of the agreement - including the "periods of incarceration to be consecutive" phrase - made the suspended time on his state sentences consecutive.
Tejada has thus implicitly been addressing a basic principle of contract law, that "[c]ourts will fill in gaps [in contracts] where parties' reasonable expectations are clear, but they cannot impose performance where it is not clear the parties had a meeting of the minds[,]" i.e., even if there has been a meeting of the minds as to key terms of the agreement, so that there is an enforceable contract, if there is no meeting of the minds as to a term or issue not expressly addressed by the contract, courts will not fill in the gap and supply the missing term when there is an insufficient basis to reliably determine the reasonable expectations of the parties as to that term. Young v. Kelly, 334 P.3d 153, 157 (Alaska 2014) (cited case omitted).
Turning to additional arguments advanced by the State, the State relies on the sentencing court's statement that "I think the only thing that [the plea agreement] does say is that the probation period is concurrent . . . not the suspended time," implying that the court meant that the suspended time on the two state sentences was consecutive.
The State takes this statement out of context. In the interim between negotiating the plea agreement and the 2002 sentencing hearing, Tejada incurred a federal conviction and a 157-month sentence followed by a 3-year term of supervised release (the modern federal equivalent of probation). At the 2002 sentencing, the parties memorialized their modifications to the written plea agreement, taking into account this intervening development. The statement quoted above that the State relies on followed a colloquy where the sentencing court and Tejada's counsel were addressing Tejada's concerns about having to be on probation with both the federal and state governments. They pointed out that this probation supervision requirement was the least onerous it could be, from a durational standpoint, in that his state probation and federal supervised release would run concurrently. Thus the court's statement is properly read in context as a statement to the effect that "in contrast to those portions of the agreement which may make some sentencing components run consecutively, the probation supervision periods for the state and federal sentences are concurrent" - an effort to reassure Tejada with respect to his concern about facing the probation supervision requirements of two different governments. This statement is far from an unambiguous assertion by the sentencing court that the suspended time on Tejada's two state sentences was structured consecutively.
The State also relies on the statement by Tejada's counsel at the sentencing hearing, where he stated that "[a]ny suspended time will run consecutive." But this statement followed immediately on the heels of counsel's statement that "if Mr. Tejada violates [probation] and has any state violation and federal violation, the times, the state and federal time will run consecutive to one another." In other words, it appears to be a recapitulation of his assertions regarding the consecutive service of any state and federal probation revocation sentences, not an assertion about whether the suspended time on his two state cases was consecutive.
Last, turning to some of the post-conviction relief court's key reasons noted in its order clarifying the order granting summary judgment to the State, the postconviction relief court relied on two clues it perceived in the record to bolster its initial decision, neither of which is persuasive.
First, noting our statements that we will look to whether the court's sentencing remarks, taken as a whole, clearly manifest an intent to make sentences consecutive, the post-conviction relief court stated that the sentencing court's remarks at the 2002 sentencing hearing showed that it meant the suspended time on Tejada's state sentences to run consecutively. Remarkably, in the midst of its discussion of these sentencing remarks, the post-conviction relief court correctly noted that the sentencing court "never clearly stated whether the suspended time in the two state cases ran concurrently or consecutively with one another." This recognition should have generated a ruling in Tejada's favor. But the post-conviction relief court nonetheless concluded that the requisite clarity was present because the sentencing court (1) "read out the sentencing criteria," (2) specified the consecutive/concurrent relationship of the active time to serve on the federal and state sentences, and (3) specified that the probation supervision periods for the state and federal sentences were concurrent. The post-conviction relief court concluded the sentencing court's "careful designations of how Mr. Tejada's sentences were to be carried out, taken as a whole, indicate" the sentencing court's intent that the suspended time run consecutively "like the active time, as opposed to concurrently like the probationary time." (Emphasis added).
The emphasized language appears to rely on the inference that the sentencing court was treating like things alike, and that because it was treating active time consecutively, it must have meant to do so as to suspended time. But the interpretive force of this point is greatly lessened by the fact that the plea agreement did not run all active time consecutively; indeed, the active time in Tejada's state composite sentence and his federal sentence was concurrent. If not all of the active time was to run consecutively, it is unclear why the agreement should be construed to treat all suspended time in this fashion. Moreover, as noted above, active incarceration and suspended time are fundamentally different.
The post-conviction relief court also relied on a temporary order issued in case number 3AN-01-00670CR by the sentencing court after the September 2002 sentencing hearing. That order stated that "[d]efendant was sentenced as follows:" and then, in handwriting, spread out across four fill-in-the-blank lines, it states:
24 months/20 months suspended
Consecutive to 3AN-01-594CR, but
Concurrent to
Federal charges
The post-conviction relief court inferred that the "20 months suspended Consecutive to 3AN-01-594CR" language meant that the suspended time in the two cases is consecutive. This is not the most natural reading of this language. "24 months/20 months suspended" is all on one line, and is judicial shorthand for describing a partially suspended sentence, and in this case means that Tejada received 4 months of active time to serve in 3AN-01-00670CR. The next line, "Consecutive to 3AN-01-594CR," accords with the plea agreement's statement, "periods of incarceration to be consecutive," i.e., the 4-month active sentence in 3AN-01-00670CR was consecutive to the 6-month active sentence in 3AN-01-00594CR, for a composite sentence of 10 months to serve. The temporary order provides no support for the view that the suspended time on Tejada's state sentences was to run consecutively.
It is of course the case that even if the points discussed above, taken individually, do not unambiguously support the interpretation of "periods of incarceration" as including suspended time, they could collectively support such a conclusion. But, in this case, they do not. They depend heavily on a counterintuitive reading of "periods of incarceration," on taking the statements of Tejada's counsel and the sentencing court out of context, and on an imagined "totality" of the court's remarks. But when the plea agreement and the court's sentencing remarks are read naturally and in the manner in which Alaska's lawyers and judges have traditionally used the key sentencing terms, it is apparent that the plea agreement only addressed the consecutive/concurrent service issue as to (1) the active time to serve on Tejada's state cases and his federal case, (2) the probation supervision periods on his state cases, and (3) the service of any future state and federal probation revocation sentences. The agreement and the court's sentencing remarks did not address whether the suspended time on his state cases was structured consecutively. My colleagues misread the agreement and record in concluding otherwise. Because the plea agreement and the court's sentencing remarks did not address whether the suspended time on the state cases was structured consecutively, by law it should have been treated as concurrent.
Why I conclude that Tejada's position has always been that the plea agreement did not address whether the suspended time on his state sentences was structured consecutively or concurrently
The majority views Tejada's arguments as being focused on the oral remarks of the court at his 2002 sentencing hearing, and on the written judgment that followed. The majority asserts that Tejada has never meaningfully disputed the State's argument that the plea agreement was "clear" that the suspended time on his two state sentences was structured consecutively.
The majority construes Tejada's pleadings too parsimoniously. It is true that Tejada's original pro se post-conviction relief application and the amended application filed by counsel focused on the written judgments and the court's remarks at the 2002 sentencing. But the amended application was accompanied by a copy of the written plea agreement, which Tejada's counsel could reasonably conclude spoke for itself. The agreement made clear that the active time in each case was to run consecutively, and that the probation supervision periods in each case were to be concurrent. But the agreement said nothing about whether the suspended time in the two cases was structured consecutively. The amended application was accompanied by a recording of the 2002 sentencing hearing, where the court and Tejada's counsel both used terminology reflecting a precise understanding of the constituent parts of a partially suspended sentence. Neither said anything suggesting that the suspended time on Tejada's state sentences was consecutive. Ultimately, the application treated the sentencing court's remarks and the written judgments as memorializing the plea agreement; the pass-through focus is on what the plea agreement itself encompassed.
Moreover, in Tejada's opposition to the State's summary judgment motion, Tejada expressly referred to the parties' understanding of the Rule 11 agreement. Thus, Tejada was in fact arguing that the parties' original agreement never contemplated or covered the issue of whether the suspended time on his state cases was structured concurrently or consecutively. Tejada's opposition stated, in relevant part:
[T]he State's arguments completely ignore the fact that, in the limited discussions between counsel and the sentencing court, any discussion of consecutive suspended time is relegated to the suspended time resulting from his state and federal convictions. In other words, the record indicates that the parties' and trial court's understanding was that any suspended time imposed in the state cases would run consecutive to that imposed in the federal case. There was no discussion of whether the suspended time in 3AN-01-00594CR and 3AN-01-00670CR were to run consecutively or concurrently and that is precisely why Mr. Tejada sought post-conviction relief[.] (Emphasis added).
Tejada's opposition also stated that:
While the record is clear as to who said what and when and while the judgments are available for review, the record is nowhere near clear on whether the suspended time in 3AN-01-00594CR and 3AN-01-00670CR was to run consecutively or concurrently. The only thing that was clear regarding consecutive or concurrent suspended time was that the state suspended time would be consecutive to the federal suspended time[.]
Tejada has also shown in his appellate briefing that he disagrees with the post-conviction relief court's interpretation of the plea agreement itself. In the statement of the issue presented for review, in his opening brief, Tejada frames the issue as:
Whether the Superior Court erred in granting summary judgment and dismissing Mr. Tejada's claim for postconviction relief when the Criminal Rule 11 agreement was silent on whether the suspended portion of his jail time in 3AN-01-00670CR and 3AN-01-00594 ran consecutively or concurrently when the law then in effect provided that, in such circumstances, that time must be deemed to run concurrently. (Emphasis added).
By contrast to this description of the suspended time, a page later in his briefing, Tejada states that "[t]he agreement further provided that the periods of active incarceration would be consecutive and the probation periods concurrent." And in describing the procedural history, Tejada states, "[t]here was no statement [at the September 2002 sentencing hearing] from the parties or the Superior Court specifically indicating that the suspended time in 3AN-01-00670CR and 3AN-01-00594CR ran consecutively or concurrently." Tejada tied this lack of discussion of this point to the plea agreement:
The Superior Court's conclusion that [the sentencing court's] remarks at sentencing, taken as a whole, clearly showed [its] intent to impose the suspended portions of Mr. Tejada's sentences in 3AN-01-00670CR and 3AN-01-00594CR consecutively is clearly mistaken. There simply was no discussion of that issue by [the sentencing court] or the parties at sentencing. As this sentencing was predicated on a modified Criminal Rule 11 agreement, the lack of discussion of this issue by the parties is significant. If the
parties failed to contemplate this specific issue, then the suspended portion of Mr. Tejada's sentences in 3AN-01-00670CR and 3AN-01-00594CR must be deemed to run concurrently. (Emphasis added).
And in his reply brief, Tejada states: "[t]he . . . assumption that the active incarceration portions of Mr. Tejada's sentences in 3AN-01-00670CR and 3AN-01-00594CR also included any suspended time that might be subsequently imposed is ill-founded."
Read narrowly, one could construe Tejada's statements about the parties' lack of discussion of whether the suspended time on the state sentences was consecutive as merely pertaining to what was said at the sentencing hearing, and not as an assertion about the parties' out-of-court plea negotiations. But the material terms of a plea agreement must be disclosed on the record. By asserting that the parties did not discuss the issue at sentencing, Tejada was implicitly asserting that they had not reached a meeting of the minds on this point prior to sentencing, in their out-of-court discussions. Moreover, Tejada argued that "if the parties failed to contemplate this specific issue," then the suspended portions of his state sentences must be deemed concurrent.
See Alaska R. Crim. P. 11(e)(1) ("[T]he court shall require disclosure of the [sentencing] agreement in open court at the time the plea is offered."). See also United States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (discussing the federal analogue to Alaska Criminal Rule 11, and stating that "[d]uring the plea colloquy, the parties must disclose 'all "material terms" (or material "details" or "elements") of the agreement'"). This duty to disclose the material terms of a plea or sentencing agreement on record is shared by both the prosecutor and defense counsel. See, e.g., United States v. Hernandez, 79 F.3d 1193, 1194 (D.C. Cir. 1996) (citing United States v. Roberts, 570 F.2d 999, 1007 n.25 (D.C. Cir. 1977)); Butala v. State, 664 N.W.2d 333, 340 n.4 (Minn. 2003). Failure to comply with this duty amounts to a violation of a lawyer's duty of candor to the court. See, e.g., People v. Colin, 41 N.E.3d 526, 535-36 (Ill. App. 2015).
For these reasons, I do not view the "[i]f the parties failed to contemplate this specific issue" as a hypothetical statement that might mask a contrary reality where there was in fact an agreement (not set out in the written Rule 11 agreement) between the State and Tejada that the suspended time on the state sentences was structured consecutively. Rather, read in context, I view this as Tejada asserting that the parties gave no thought to this issue and that it was not part of any agreement, written or otherwise. Parties' arguments, including arguments drafted by attorneys, must be read contextually and in a common-sense manner. The majority construes Tejada's arguments too begrudgingly, and errs in concluding that he has never contested the proposition that the original written plea agreement structured the suspended time on his state cases consecutively. He has vigorously contested that proposition, in multiple forums.
See Tejada v. Dep't of Corr., 2020 WL 7774899 (D. Alaska Dec. 30, 2020) (unpublished) (order denying habeas petition under 28 U.S.C. § 2254, where Tejada sought order directing DOC to run his 2016 probation revocation sentences concurrently).
Alaska law on consecutive and concurrent sentencing
I now engage in a more in-depth exposition of the law undergirding my analysis of the plea agreement. I start with the law of consecutive and concurrent sentencing, in particular with whether there is a default rule that sentences will be deemed consecutive or concurrent when the sentencing record is silent on that issue. And I stress that the focus is on what default rule applies in this specific context, i.e., when sentences for multiple counts or cases are imposed in a single sentencing proceeding.
A different presumption may apply as to sentences imposed on separate occasions, and in various other sentencing permutations such as the interaction of state and federal sentences, or the relationship of new sentences to probation or parole revocation sentences based on the same underlying criminal conduct.
Alaska has long had statutes governing the imposition of consecutive sentences. Former AS 11.05.050, which originated in 1945 territorial law, stated, in relevant part, "[i]f the defendant is convicted of two or more crimes, before judgment on either, the judgment may be that the imprisonment upon any one conviction commence at the expiration of the imprisonment of any other of such crimes." That statute was replaced with former AS 12.55.025 in the 1978 criminal code revision.Former AS 12.55.025 stated in part that, "[i]f the court does not specify, the sentences of imprisonment shall run concurrently." This statute was amended in 1982, deleting this language. In 2004, the legislature amended the sentencing statutes to move the provisions regarding concurrent and consecutive sentencing to a new statute, AS 12.55.127.
See Thomas v. State, 566 P.2d 630, 633 & nn.7 & 9 (Alaska 1977). The supreme court in Thomas noted that the State's brief in that case said the statute was enacted in 1949 - doubtless a reference to ACLA § 65-2-7 (1949) - but in fact the pertinent language was added in 1945. See Laws of Alaska, SLA 1945, ch. 19, § 1.
SLA 1978, ch. 166, § 12.
Former AS 12.55.025 (1978).
SLA 1982, ch. 143, § 24.
SLA 2004, ch. 125, § 3.
Aside from the brief period of 1978-1982, the statutes did not contain the presumption that judicial silence at sentencing results in concurrent sentences. Instead, this Court's jurisprudence set out this presumption. The presumption arose from the interaction of clear-statement rules regarding the terms of a sentence and from the principle that a provision of a criminal sentence is enforceable when it can be discerned beyond a reasonable doubt from the sentencing record.
Clear-statement rules regarding the terms of and reasons for a sentence first emerged in Alaska law in 1970. The Alaska Supreme Court adopted an appellate rule governing sentence appeals, Appellate Rule 21, which contained a provision directed at sentencing court judges, subsection (f), which stated, "[a]t the time of imposition of sentence the judge shall make a statement on the record explaining his reasons for imposition of the sentence." In 1976, the supreme court amended Appellate Rule 21 to require the sentencing court to state "[t]he reasons for selecting the particular sentence imposed" and to give "[a] precise statement of the terms of the sentence imposed and the purpose the sentence is intended to serve." Those provisions were carried forward into Appellate Rule 215 when the Appellate Rules were restyled in 1980. The supreme court eventually deleted these provisions from Appellate Rule 215 in 1989. They resurfaced in 1993 in Criminal Rule 32.2(e) (since moved to paragraph (c)(1)), which requires a sentencing court to "clearly state the precise terms of the sentence imposed, the reasons for selecting the particular sentence, and the purposes the sentence is intended to serve."
SCO 101 (eff. Jan.1, 1970).
SCO 218 (eff. Jan.15, 1976) (setting out former Appellate Rule 21(f)(2) and (4)).
SCO 439 (eff. Nov. 15, 1980) (setting out former Appellate Rule 215(f)(2) and (4)).
SCO 1021 (eff. July 15, 1990).
See 1993-94 Alaska Rules of Court, at 312 (Book Pub. Co.); SCO 1464 (eff. Mar. 5, 2002).
Similar provisions were adopted in statutes. In 1974, the legislature enacted AS 12.55.075, which required the sentencing court, in imposing a felony sentence, to state "the reasons for selecting the particular sentence imposed" and give "a precise statement of the terms of the sentence imposed, and the purpose the sentence is intended to serve." In 1978, as part of the criminal code revision, this statute was repealed and replaced with AS 12.55.025, requiring courts, when imposing certain sentences, to give "a clear statement of the terms of the sentence imposed."
Former AS 12.55.075(a)(2), (4) (1974); SLA 1974, ch. 60, § 1.
SLA 1978, ch. 166, §§ 12, 21; AS 12.55.025(a)(3).
In terms of case law, the Alaska Supreme Court first enunciated a clearstatement rule regarding the terms of a criminal sentence in Chase v. State, stating:
[T]rial courts' final judgments, particularly sentences calling for incarceration in criminal matters, must be framed with clarity and accuracy in order to avoid the possibility of injustice and confusion. Broad and uniform recognition has been given to the precept that a sentence imposed by a court acting in a criminal case should be definite, unequivocal and unambiguous, so that both the defendant and the officials charged with executing the sentence will be fairly apprised of the intentions of the court. It is similarly well established that where a criminal sentence is ambiguous, it must be interpreted in favor of the individual who has been deprived of his liberty.
Chase v. State, 479 P.2d 337, 339-40 (Alaska 1971) (citations omitted).
But the recognition of a clear-statement rule in Chase was not a late-breaking development in the law, and was simply a reiteration of long-standing principles. Chase quoted the United States Supreme Court's 1926 statement in United States v. Daugherty that "[s]entences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious mis-apprehensions by those who must execute them."The Chase court also noted that the principle was even more venerable than that, citing a 1784 Pennsylvania case for the proposition that "judgments must be certain and definite in all respects."
Id. at 339 n.4 (quoting United States v. Daugherty, 269 U.S. 360, 363 (1926)).
Id. (quoting Respublica v. De Longchamps, 1 U.S. 111, 116 (Pa. 1784)).
The application of clear-statement rules in Alaska case law with respect to consecutive sentencing first manifested in a string of decisions from the Alaska Supreme Court and this Court holding that sentencing courts must explain their reasons for making sentences consecutive. In 1976, the Alaska Supreme Court adopted the position of the American Bar Association that "[i]mposition of a consecutive sentence should require the affirmative action of the sentencing court[,]" i.e., should require a statement of reasons for imposing consecutive sentences. The requirement that a sentencing court state the reasons for making sentences consecutive presupposes that the court will also make clear the fact that the sentences are consecutive. In Griffith v. State, we retained the rule that sentencing courts must state their reasons for making sentences consecutive, even after the legislature's shift to a "preference" for consecutive sentences, and must specify that a sentence is consecutive.
Cleary v. State, 548 P.2d 952, 956 (Alaska 1976) (quoting ABA Standards for Criminal Justice, Sentencing Alternative and Procedures § 3.4, at 24 (Approved Draft 1968)). See also Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977); Griffith v. State, 675 P.2d 662, 664 (Alaska App. 1984).
Griffith, 675 P.2d at 664; see also Baker v. State, 110 P.3d 996, 1002 (Alaska App. 2005) ("[T]he Griffith decision retained the rule that a sentencing judge must specify that a sentence is consecutive in order to impose a sentence consecutively.").
Subsequent to Griffith, this Court shifted to emphasizing the need for a clear statement of the fact that sentences are being imposed consecutively, in a string of unpublished decisions. We then drew out this point in two published decisions, Baker v. State and Paige v. State, holding that sentences will be presumed to be concurrent if the sentencing court does not specify. We have since reiterated this point as to succeeding iterations of consecutive sentencing statutes. There is one exception, "when the imposition of a consecutive sentence would be required as a matter of law."
See Sundberg v. State, 1990 WL 10513282, at *2 (Alaska App. Jan. 31, 1990) (unpublished); Schaffer v. State, 1992 WL 12153285, at *2 (Alaska App. July 29, 1992) (unpublished); Stotesbury v. State, 2002 WL 386126, at *2 (Alaska App. Mar. 13, 2002) (unpublished). In Schaffer, we grounded this requirement in the statement in Cleary that "[i]mposition of a consecutive sentence should require the affirmative action of the sentencing court." Schaffer, 1992 WL 12153285 at *2 (quoting Cleary, 548 P.2d at 956).
See Baker, 110 P.3d at 1002 (holding that the sentence must be deemed concurrent because the sentencing court did not state that the sentence was consecutive; Paige v. State, 115 P.3d 1244, 1246-47 (Alaska App. 2005) (same).
Carr v. State, 2006 WL 3530584, at *2-3 (Alaska App. Dec. 6, 2006) (unpublished); Godsoe v. State, 2007 WL 1793148, at *2-3 (Alaska App. June 20, 2007) (unpublished); Milazzo v. State, 2015 WL 428330, at *2 (Alaska App. Jan. 28, 2015) (unpublished); Brigman v. State, 2015 WL 3842948, at *2 (Alaska App. June 17, 2015) (unpublished).
Schaffer, 1992 WL 12153285, at *2; see also Parker v. State, 1990 WL 10509564, at *1 (Alaska App. Sept. 26, 1990) (unpublished); Deveraux v. State, 2001 WL 81791, at *1 (Alaska App. Jan. 31, 2001) (unpublished).
The default rule that sentences will be treated as concurrent when the court fails to clearly specify that sentences are consecutive arises from the interaction of several rules. First, double jeopardy prohibits increasing a sentence once it has been "meaningfully imposed." Second, if there is a conflict between the court's oral pronouncement of sentence and the written judgment, the oral pronouncement controls. Thus, if a composite sentence as originally imposed was not consecutive, it cannot generally be later amended to be consecutive (unless consecutive sentences are required by law). And pursuant to the principle set out in Chase, if the sentencing record is less than optimally clear as to the fact that sentences were meant to run consecutively, they should only be interpreted as consecutive when it is possible to conclude beyond a reasonable doubt that such was the intention of the sentencing court. The net result is the rule we reiterated in Paige, that "when a sentencing judge [does] not specify that a defendant's sentences were to be served consecutively, or when the judge's remarks, taken as a whole, [do] not clearly show the judge's intent to impose consecutive sentences, the sentences should be deemed to have been imposed concurrently."
Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971). If a required term of a sentence is missing, the sentence has not been "meaningfully imposed." Thus, if the law requires consecutive sentencing and the court does not address this, the judgment may be corrected to make the sentences consecutive to the degree required by law.
Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991).
This is the same standard employed in Alaska Criminal Rule 36, which allows a trial court, either sua sponte or on the motion of a party, to correct errors in a criminal judgment. See, e.g., Shagloak v. State, 582 P.2d 1034, 1037-38 (Alaska 1978); Alvin v. State, 42 P.3d 1156, 1159 (Alaska App. 2002).
Paige v. State, 115 P.3d 1244, 1246-47 (Alaska App. 2005).
The majority claims that this rule should not apply when interpreting a sentence that is the result of a plea agreement because the reasonable expectations of the parties must be ascertained. But the intent of the sentencing court is equally at issue in interpreting sentences that are not the result of a plea agreement. In situations where a written judgment is corrected to implement the sentencing court's imperfectly expressed intent, "the court and parties . . . are confined to the contemporaneous sentencing record[,]" in discerning that intent, and cannot "rely on 'the sentencing court's subsequent explanation of its subjective purpose.'" The fact that the reasonable expectations of the parties is at issue does not militate in favor of permitting less clarity in plea agreements than is required in written judgments and sentencing remarks.
Alvin, 42 P.3d at 1159 (internal quotation marks and citation omitted).
Specifically, the same constraints that generate the judicial-silence-equals-concurrent rule apply to the plea agreement situation. Double jeopardy, with its prohibition on increasing sentences after they have been imposed, applies. Thus, at the time of sentencing, the plea agreement must specify if the sentences are meant to be consecutive and cannot be amended later. Additionally, if making sentences consecutive is a material term of a plea agreement, then it must be disclosed to the court on record at the sentencing hearing. And the clear-statement requirements for criminal sentences apply equally to sentences that are the result of a plea agreement. The record should not be ambiguous about whether consecutiveness was intended. There are situations where the law permits post-sentencing inquiry into the meaning of plea agreements, such as motions to enforce or claims of breach of the agreement (e.g., claims that the State promised to drop charges against a co-defendant, etc.). But the rule at issue here - that the sentencing record must clearly indicate that sentences were to be consecutive - involves those provisions of a criminal judgment that must be enforced by prison officials, and was meant for their benefit. There is no reason to deviate from this rule in the plea agreement context. It is not onerous, and simply requires the proponent of consecutiveness (usually the prosecutor) to be reasonably clear in drafting plea agreements.
As previously noted, the degree of clarity regarding the court's intent does not require clarity that eliminates any doubt whatsoever. But the clarity required is still demanding - there must be "no reasonable doubt" about the disputed sentencing term. We have recognized that this standard is not met simply because the person arguing for a specific interpretation of a provision in a criminal sentence can point to indicia that make a strong showing regarding judicial intent as to the disputed term.
For example, in Cornwall v. State, the sentencing court orally pronounced a sentence of 6 years with 4 years suspended for second-degree sexual abuse of a minor. The following day, the court notified the parties that it had misspoken and intended to impose a sentence of 6 years with 2 years suspended. Cornwall appealed, arguing that this increased sentence violated double jeopardy. The State argued that three things pointed to the first sentence being an "objectively ascertainable mistake" that the court could correct: (1) the court found four aggravating factors, which would be required to impose a sentence in excess of the four-year presumptive term for a second felony offender; (2) the court classified the seriousness of Cornwall's offense within a benchmark sentencing range that permitted sentences of up to 6 years; and (3) the court recommended sex offender treatment, and DOC's main sex offender treatment program required inmates to have a least a four-year sentence.
Cornwall v. State, 902 P.2d 336, 337 (Alaska App. 1995).
Id. at 338-39.
This Court disagreed, noting with respect to the first two points that neither of the applicable legal standards required the sentencing court to impose a sentence of that length, and that Cornwall's favorable prospects for rehabilitation would have allowed the court to impose the first sentence that it announced. We also noted that Cornwall had not been ordered to participate in any particular treatment program. We concluded that "[t]he contemporaneous record thus reveals no irreconcilable inconsistencies or obvious anomalies. Cornwall's sentence, as originally imposed, was neither impermissible nor irrational; it was 'logically possible.'" We stated that "[a]lthough the circumstances relied on by the state, viewed in retrospect, provide strong evidence to corroborate the sentencing court's explanation of its original intention, they do not, standing apart from the court's explanation, reveal an 'objectively ascertainable mistake.'"
Id.
Id. at 339 (quoting Shagloak v. State, 582 P.3d 1034, 1038 (Alaska 1978)).
Id. (quoting Shagloak, 582 P.2d at 1038).
We have applied this requirement, that the sentencing court's intent be discernible beyond a reasonable doubt, in determining whether a court sentencing a defendant on multiple counts or cases in a single proceeding manifested a clear intent to make those sentences consecutive. For example, in Carr v. State, Carr was convicted of three counts of first-degree sexual abuse of a minor. On two of these counts, the court imposed sentences of 10 years with 2 years suspended (8 years to serve). On the third count, the court imposed a sentence of 12 years with 2 years suspended (10 years to serve). The court specified the partially consecutive relationship of the active time that it imposed, clarifying that Carr's composite sentence was 12 years to serve. However, the court was completely silent as to whether any probation revocation sentences on the three counts should be served concurrently or consecutively.
Carr v. State, 2006 WL 3530584, at *1 (Alaska App. Dec. 6, 2006) (unpublished).
Id. at *3.
Carr's probation was later revoked and a portion of his suspended time was imposed (in a manner consistent with a view, at the time of revocation, that the 2-year suspended portions of each sentence had, when Carr was originally sentenced, been structured consecutively for a 6-year period of suspended time available to impose if Carr violated probation). Carr subsequently filed an Alaska Criminal Rule 35(a) motion to correct an illegal sentence, arguing that because his sentencing judge was silent about whether his suspended time was structured concurrently or consecutively, the three 2-year suspended sentences should have been deemed to run concurrently.The judge, who was the same judge who imposed sentence, stated that because her sentencing remarks were clear which portions of his original active time to serve were partially concurrent, by negative implication all other aspects of his sentence were to be consecutive, i.e., Carr had a total of 6 years of suspended time that could be imposed. The judge thus denied the Rule 35(a) motion.
See Appellee's Brief in Carr v. State, A-09149, at 7.
Id. at 1.
Appellant's Brief in Carr v. State, A-09149, at 6.
Carr appealed to this Court, reiterating his point that the sentencing court's silence as to whether his suspended time on the individual counts could be imposed concurrently or consecutively if his probation was later revoked meant that his suspended time should be treated as concurrent. The State argued for affirmance but did not rely on the rationale offered by the sentencing court, i.e., that any component that was not concurrent was implicitly consecutive. Rather, the State argued that the court's worst-offender finding, its finding that a term of imprisonment greater than the maximum term for Carr's most serious offense was necessary to protect the public,and the court's discussion of the legislative preference for consecutive sentences, showed that when the court's sentencing "comments are viewed in their totality, they reflect an unambiguous intent to impose consecutive periods of suspended time." We disagreed and reversed, stating:
This finding was superfluous; the consecutive terms that the judge imposed - a 12-year composite - did not exceed the 30-year maximum term for Carr's most serious offense, first-degree sexual abuse of a minor. See former AS 12.55.125(i)(1) (1989).
Appellee's Brief in Carr v. State, A-09149, at 10.
The State points to various parts of the judge's sentencing remarks which imply, or suggest, that she wished to impose this suspended time consecutively. But these implications and suggestions are not sufficient. The test, as we explained above, is whether the judge's remarks "clearly show the judge's intent[ion] to impose consecutive sentences".
Here, the record contains no clear indication of the judge's intention to impose the suspended terms of imprisonment consecutively. Thus, under the rule announced in Baker and confirmed in Paige, these portions of Carr's sentences must be deemed concurrent.Tejada's case is reminiscent of Carr. Like Carr, we should reverse the decision below.
Carr v. State, 2006 WL 3530584, at *3 (Alaska App. Dec. 6, 2006) (unpublished).
It is true that Carr did not involve a plea agreement, but I do not believe that makes a difference here. Plea agreements are contracts. It is sometimes the case that plea agreements will contain multiple provisions addressing the defendant's sentences on one or more charges, but will not comprehensively address every potential aspect of the defendant's sentences. Such an agreement may be a valid sentencing agreement that contains all the essential elements of a contract - "an offer encompassing all essential terms, unequivocal acceptance by the offeree, consideration, and an intent to be bound" - even though the defendant and the State did not reach a meeting of the minds as to terms or issues not expressly addressed in the agreement. In such cases, when interpreting and enforcing such an agreement, courts may attempt to fill in the gaps as to a term or issue not expressly addressed, if there is a sufficient basis from which the court can reliably determine the reasonable expectations of the parties.Thus, in adopting a plea agreement and evaluating the reasonable expectations of the parties, it may sometimes be the case that a court concludes that it was within the expectations of a reasonable defendant that sentences on multiple counts were (or permissibly could be ordered by the court) to run consecutively, even if the defendant did not subjectively have that expectation, and sentence accordingly. But I conclude that Tejada's amended post-conviction relief application and his opposition to the State's summary judgment motion made a prima facie showing that (1) the reasonable defendant standing in his shoes would not expect that the phrase "periods of incarceration to be consecutive" encompassed suspended time, particularly when the attorneys and the court were very clear about addressing consecutive/concurrent service of other sentence components, and used direct language when they did so, and (2) Tejada also had no subjective contrary expectations as to this issue.
Colton v. Colton, 244 P.3d 1121, 1127 & n.18 (Alaska 2010) (cited cases omitted).
Alaska Fur Gallery, Inc. v. Tok Hwang, 394 P.3d 511, 514 (Alaska 2017).
See, e.g., Paradiso v. United States, 689 F.2d 28, 30-31 (2nd Cir. 1982). Unlike ordinary contracts, when a court determines that a term in a plea agreement remains ambiguous after analyzing the evidence of the parties' reasonable expectations, the court construes any ambiguities against the State. Anthony v. State, 329 P.3d 1027, 1032 (Alaska App. 2014).
Moreover, even if the "reasonable expectations" test permits a court to run sentences consecutively where the plea agreement did not clearly prohibit this, and the court clearly states on record that sentences are consecutive, that is a different situation than is presented here. Where the court never utters the words "consecutive" or "consecutively" or describes the sentences in a way that shows that they are consecutive, and simply states that it was adopting the plea agreement, the plea agreement itself must clearly indicate that fact and must be disclosed on record, because corrections officials need go no further than the written judgment and, if necessary, a recording of the sentencing or change-of-plea hearing, to ascertain the terms of criminal judgments that they must enforce. There was no such clear indication in this agreement.
Conclusion
Tejada, by asking the post-conviction relief court to direct DOC to run his probation-revocation sentences concurrently, essentially sought specific performance of the 2001-02 plea agreement. He thus had the burden of establishing his assertion that the plea agreement did not address whether the suspended time in his state cases was structured consecutively. He provided the court with the plea agreement and a recording of the September 2002 sentencing hearing. They established that the active time to serve in Tejada's state cases was consecutive and that the probation supervision periods for those cases were concurrent. But the written plea agreement was silent as to whether the suspended time in those cases was structured consecutively or concurrently. The parties' and court's discussion at sentencing contained no such explicit statements.
Moreover, the law requires that all material terms of a plea agreement be disclosed. The plea agreement had an integration clause stating that there were no terms of the agreement that were not explicitly set out in the written agreement. Additionally, Alaska law requires a clear indication that separate sentences imposed in a single proceeding are meant to be run consecutively. Therefore, Tejada met his burden of presumptively establishing that the plea agreement, the written judgment, and the sentencing record did not explicitly structure the suspended time in his state cases consecutively. When the law gives rise to a presumption, the party entitled to the benefit of that presumption may be granted summary judgment if the party opposing the presumption fails to overcome it.
See Larson v. Cooper, 113 P.3d 1196, 1203 (Alaska 2005).
The State then had the counter-burden of showing that the opposite was true. It did not meet its burden. The State did not come forward with copies of plea negotiation communications between Tejada's counsel and the State in 2001-02, showing an explicit agreement that the suspended time was consecutive. The State did not produce any affidavits or testimony from either of the involved lawyers to that effect. The State only presented the ambiguous and debatable points discussed above, along with conclusory assertions that the plea agreement "clearly" required the suspended time on the state sentences to be consecutive. Thus, the State was not entitled to summary judgment. Indeed, the superior court should have relied on a basic principle of summary judgment law, that courts may grant summary judgment in favor of the non-moving party, and should have granted summary judgment to Tejada.
See Kodiak Island Borough v. Large, 622 P.2d 440, 446 (Alaska 1981).
It is true that the requirement set out in the Cleary-Griffith-Baker-Paige line of cases for a clear statement that sentences are to run consecutively is not a "magic words" requirement; the court need not use the words "consecutive" or "consecutively." In Paige, for example, we noted that the matter could be evaluated by looking to "the judge's [sentencing] remarks, taken as a whole." But such an assessment does not involve the "holistic" review of the record that the State asserted below is appropriate. Rather, we have found a clear intent to make sentences consecutive when that can be seen in the mathematical expression of the sentences by the court, or when it can be seen in the structural relationship of the sentences. But we have not found the requisite clarity merely from a combination of inferring meaning by negative implication or isolated ambiguous statements in the record. Where the record is silent or at best ambiguous as to whether consecutive sentences were intended, the record must be construed in favor of the defendant and the sentences must be deemed to be concurrent.
Paige v. State, 115 P.3d 1244, 1246 (Alaska App. 2005).
Godsoe v. State, 2007 WL 1793148, at *2-3 (Alaska App. June 20, 2007) (unpublished).
That result should have been the outcome here. The parties appear to have been primarily concerned with specifying that Tejada's lengthy 157-month federal sentence would run concurrently with his active state sentences, and they correctly recognized that any state and federal probation revocation sentences that he might later incur would have to be consecutive. It makes sense that Tejada's counsel in 2002 would have this concern about the relationship of his state and federal sentences, because the federal sentence was much longer than the state sentences. To avoid Tejada later attempting to unravel a favorable plea agreement, he needed to understand the fact that any later state and federal probation revocation sentences would have to run consecutively to each other. But there was never any need for Tejada's counsel to bring up during plea negotiations the issue of whether the suspended time on the state sentences should be consecutive or concurrent because, under Alaska law, silence on that point was favorable to his client, ensuring that the suspended time on those sentences would be deemed to be structured concurrently.
See Grant v. State, 379 P.3d 993, 994-96 (Alaska App. 2016).
I respectfully dissent.