Jason D. Ray v. State of Alaska
513 P.3d 1026
Alaska
2022
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JASON D. RAY v. STATE OF ALASKA

Supreme Court No. S-17645

THE SUPREME COURT OF THE STATE OF ALASKA

July 22, 2022

No. 7605

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.

THE SUPREME COURT OF THE STATE OF ALASKA

JASON D. RAY, Petitioner, v. STATE OF ALASKA, Respondent. Supreme Court No. S-17645; Court of Appeals No. A-12135; Superior Court No. 3KO-13-00627 CR

O P I N I O N

No. 7605 – July 22, 2022

Certified Question from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Steve W. Cole, Judge.

Appearances: Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Petitioner. Timothy W. Terrell, Assistant Attorney General, Anchorage, and Clyde “Ed” Sniffen, Jr., Acting Attorney General, Juneau, for Respondent.

Before: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices

BORGHESAN, Justice
CARNEY, Justice, dissenting.

I. INTRODUCTION

In the court of appeals held that a defendant who entered a plea agreement providing for a specific period of probation has the right, when being sentenced for a subsequent probation violation, to reject further probation and to serve a sentence of active imprisonment only.1 Now the court of appeals has certified to us the question of whether the legislature intended to abrogate that right when it enacted AS 12.55.090(f).2 We conclude that it did. Although AS 12.55.090(f) does not expressly mention a defendant’s right to reject probation, its plain text precludes a judge from reducing or terminating a previously-agreed-upon period of probation unless both the prosecution and the defendant agree, and the legislative history does not persuade us that the legislature intended something other than the plain meaning of the language it used.

II. FACTS AND PROCEEDINGS

A. Superior Court Proceedings

Jason Ray was arrested in October 2013 for stealing a pair of boots from a grocery store in Kodiak. Because Ray had two prior theft convictions, the State charged him with theft in the second degree. Ray pleaded guilty as part of a plea agreement pursuant to Alaska Criminal Rule 11.3 The plea agreement called for Ray to receive a sentence of 24 months’ imprisonment with 20 months suspended, followed by three years of supervised probation. Ray served his four months in prison and was then released on supervised probation.

“had sent [Henry] back to jail for 19 months, as the original bargain had been, . . . that would have been fine because at that point, he had served everything he had agreed to.”16

Douglas Moody, deputy director of the Public Defender Agency, testified after Carpeneti in opposition.17 A different senator clarified his understanding of the bill, that it would mean a judge “can’t . . . say I’ve decided that the suspended time imposed in the first place was too much and eliminate it.”18 Moody confirmed that “is exactly what this provision does is say the judge can’t [reduce the suspended sentence]” and that was why his agency opposed it.19

Additional testimony from representatives of both agencies was consistent with this view. Both focused on the proposed law’s impact on the deal originally reached to resolve the case.20 And both agencies’ positions centered on whether “a court

could ever act inconsistently with the original plea agreement.”21

Like Judge Suddock, I conclude that when it passed former AS 12.55.090(f), the legislature intended to prevent a court from doing anything inconsistent with the original deal.22 Like Judge Suddock and Judge Mannheimer, I conclude that the legislature did not intend to abolish a defendant’s right to reject further probation. And like Judge Suddock, I conclude that former AS 12.55.090(f) set the “price” for such a rejection of probation: service of the entire remaining amount of the originally agreed upon suspended time.

Notes

2
The legislature first enacted AS 12.55.090(f) in 2012. Ch. 70, § 10, SLA 2012. The legislature later amended the statute in 2016, significantly modifying its operation. Ch. 36, § 80, SLA 2016. Our decision interprets the version of AS 12.55.090(f) in effect from 2012-2016, which was applied to the petitioner in this case. We express no opinion on the interpretation of the statute as currently written.
3
See Alaska R. Crim. P. 11(e)(1)-(2) (establishing procedure for presenting plea agreement for court approval and stating that after approval court “shall impose sentence in accordance with the terms of that agreement”).
16
Testimony of Anne Carpeneti, Assistant Att’y Gen. at 2:05:15-2:06:39, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
17
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:36:45-2:50:20, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
18
Comments of Sen. Hollis French., Chair, Sen. Judiciary Comm. at 2:46:40-2:47:01, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
19
Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:47, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Feb. 10, 2012).
20
See, e.g., Testimony of Richard Svobodny, Deputy Att’y Gen. at 2:21:21-29, Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 12, 2012) (“Both sides have negotiated in good faith over what is an appropriate sentence in [a given] case. . . . [The prosecution] made a deal. [It] thought . . . [the deal] was negotiated in good faith, and the only thing that has happened . . . is the [probationer] has (continued...) (...continued) violated the conditions of probation, and that shouldn’t be a reward to them.”); Testimony of Anne Carpeneti, Assistant Att’y Gen. at 1:37:13-1:47:50, Hearing on S.B. 210 Before the H. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 11, 2012) (“[W]hen the state and the defense enter into plea negotiations, both sides give up some things and gain some things . . . in exchange for a particular agreement. . . . The parties bargained on this period of probation. The court accepted that . . . bargain . . . and the defendant has violated [it]. In terms of the agreement that was originally made, that [should] be upheld.”); Testimony of Douglas Moody, Deputy Dir., Pub. Def. Agency at 2:13:00-2:36:30, Hearing on S.B. 186 Before the Sen. Judiciary Comm., 27th Leg., 2d Sess. (Apr. 11, 2012) (“Most of these sentences are negotiated and what happens is the state gives up something and the defense gives up something.”).
21
(Suddock, J., writing separately) (emphasis in original).
22
This includes increasing the period of probation as the superior court did here. See ; Opinion at 3.
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