Callan v. State

904 P.2d 856, 1995 Alas. App. LEXIS 60, 1995 WL 649378

• Court: Court of Appeals of Alaska
• Decided: November 3, 1995
• Docket: A-05418
• Status: Published

Opinions

ORDER

On consideration of the State’s motion to publish this ease as an opinion, filed on October 10, 1995,

IT IS ORDERED:

1. The motion is GRANTED.

2. Memorandum Opinion and Judgment No. 3258, issued on September 27, 1995, is WITHDRAWN.

3. Opinion No. 1445 is issued on. this date in its place.

Entered at the direction of the Court.

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

OPINION

COATS, Judge.

In 1990, Steven D. Callan was convicted of theft in the second degree, a class C felony. A superior court judge sentenced Callan to serve a sentence of three years of imprisonment on the charge.¹ Callan served two years of this sentence and the state released him on mandatory parole under AS 33.20.010.² Callan had accumulated 365 days of good time which he was required to serve on mandatory parole.

On August 1, 1992, the state charged Cal-lan with burglary in the second degree, a class C felony. Callan was arrested and imprisoned on this charge. Additionally, the parole board ordered Callan detained on his former theft conviction. The parole board ultimately revoked Callan’s parole, requiring him to serve his 365 days of accumulated good time.

On January 4, 1993, Superior Court Judge Rene J. Gonzalez sentenced Callan to three years of imprisonment (presumptive) in the burglary case. Pursuant to AS 12.55.025(e), Callan’s sentence on the burglary conviction was consecutive to his remaining sentence on his parole revocation in the theft case.³

Approximately one year later, Callan filed an application for post-conviction relief in which he contended that, at the time of his parole revocation, he had served his sentence for the theft conviction. Callan argued that he was entitled to a deduction for good time on this sentence.⁴ He argued that since he had served his sentence for the theft conviction, the state was required to release him on mandatory parole in that case, pursuant to AS 33.20.040(a). According to Callan, he would then immediately begin to serve his time on the burglary conviction while simultaneously serving his mandatory parole time.

The state argued for a different procedure. First, the state added together Callan’s sentence of 365 days for the parole violation on his former theft Conviction and his three-year sentence on his burglary conviction. The state arrived at a total sentence of three years and 365 days. The state then computed Callan’s good time based upon the total sentence.⁵ Finally, the state calculated Cal-lan’s mandatory release date based on good time and his composite sentence. Under the state’s calculations, the state will not release Callan on good time for his theft conviction until he has completed his entire composite sentence less good time. At that time, the state will release him on the good time which he accumulated on the composite sentence.

Superior Court Judge Mark C. Rowland decided this issue in favor of the state, dismissing Callan’s action for post-conviction relief. Since the issue which Callan raises is a question of law, not fact, this court exercises its independent judgment in interpreting the good time and mandatory release statutes. Glidden v. State, 842 P.2d 604, 606 (Alaska App.1992).

Alaska’s good time and mandatory release statutes are based on former federal statutes. Morton v. Hammond, 604 P.2d 1, 2 (Alaska 1979); see former 18 U.S.C. §§ 4161-66; AS 33.20.030 & AS 33.20.040. Federal decisions interpreting the federal statutes support the state’s method of calculating good time, which is based on calculating good time for the composite sentence for all of the prisoner’s convictions. See McCray v. United States Board of Parole, 542 F.2d 558, 560 (10th Cir.1976); Briest v. United States Bureau of Prisons, 459 F.2d 284 (8th Cir.1972). In McCray, the court stated:

There is no authority for the proposition that consecutive sentences “expire” independently of one another. The argument that consecutive sentences have separate mandatory release dates and that as each sentence reaches that date the next sentence begins has been made before and summarily rejected.

542 P.2d at 560 (citations omitted).

In addition to being supported by federal precedent, the state’s system appears more logical than the system which Callan proposes. It seems simpler and more sensible to calculate a prisoner’s release on mandatory parole based upon his composite sentence rather than each individual sentence. Under the system proposed by Callan, it would be important to calculate which sentence the prisoner should serve first. Furthermore, a prisoner sentenced to serve four years based upon two consecutive two-year sentences would be treated differently than a prisoner sentenced to a single four-year sentence. We conclude that precedent and policy favor adoption of the state’s interpretation of the good time and mandatory release statutes. Judge Rowland did not err when he dismissed Callan’s application for post-conviction relief.

AFFIRMED.

1 . Callan was also convicted of criminal trespass in the first degree, a class A misdemeanor, and was ordered to serve a concurrent sentence.

2 . Alaska Statute 33.20.010 provides, in relevant part:

[A] prisoner convicted of an offense against the state or a political subdivision of the state and sentenced to a term of imprisonment that exceeds three days is entitled to a deduction of one-third of the term of imprisonment rounded off to the nearest day if the prisoner follows the rules of the correctional facility in which the prisoner is confined.

3 . Alaska Statute 12.55.025(e) provides, in relevant part:

If the defendant is imprisoned upon a previous judgment of conviction for a crime, the judgment shall provide that the imprisonment commences at the expiration of the term imposed by the previous judgment.

4 . Alaska Statute 33.20.040(a) states:

Except as provided in (c) of this section, a prisoner released under AS 33.20.030 shall be released on mandatory parole to the custody and jurisdiction of the parole board under AS 33.16, until the expiration of the maximum term to which the prisoner was sentenced, if the term or terms of imprisonment are two years or more. However, a prisoner released on mandatory parole may be discharged under AS 33.16.210 before the expiration of the term. A prisoner who was sentenced to a term or terms of imprisonment of less than two years shall be unconditionally discharged from mandatory parole.

Alaska Statute 33.20.030 provides, in relevant part:

A prisoner shall be released at the expiration of the term of sentence less the time deducted for good conduct.

5 .The state represents that Callan has forfeited a total of 120 days of good time due to disciplinary actions. Callan apparently does not contest this.