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Hanson v. State

Court of Appeals of Alaska

July 10, 2009

John V. HANSON, Appellant,
v.
STATE of Alaska, Appellee.

Page 1241

Michael J. Zelensky, Ketchikan, for the Appellant.

Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

John V. Hanson appeals the superior court's denial of his motion to set aside his 1997 conviction for fourth-degree controlled substance misconduct. The underlying facts are these:

In the summer of 1995, the Anchorage police discovered slightly over four and a half pounds of marijuana in Hanson's home. Based on this discovery, Hanson was indicted in 1996 on four counts of fourth-degree controlled substance misconduct.[1] Following a jury trial, Hanson was convicted of two of these felony offenses. Hanson's sentencing took place in September 1997; he received a suspended imposition of sentence, conditioned on his good behavior during 3 years of probation.

After the superior court entered this judgement, Hanson appealed his convictions. Because Hanson received a wholly probationary sentence, his service of the 3 years' probation was automatically stayed pending the resolution of his appeal. See Alaska Appellate Rule 206(a)(3), as interpreted in Jackson v. State, 926 P.2d 1180, 1185-87 (Alaska App.1996).

In November 1999, this Court affirmed Hanson's convictions. See Hanson v. State, Alaska App. Memorandum Opinion No. 4152 (November 24, 1999), 1999 WL 34002425. Because Hanson did not petition the supreme court to review our decision, Hanson's judgement became final sixteen days following the issuance of our decision-that is, on December 10, 1999 [2]-and the stay of Hanson's probation also ended that day.

However, neither the superior court nor the State nor Hanson took any steps to initiate his probation. That is, Hanson never reported to the Department of Corrections, and the State never took action to enforce Hanson's probation.

Under the terms of the Hanson's probation, he was required to report to the Department of Corrections each month. Hanson was also required to perform 150 hours of community work service during his term of probation. In addition, Hanson was required to undergo an alcohol/drug assessment-and, if the assessor recommended it, he was required to successfully complete an outpatient chemical dependency treatment program. Hanson did none of these things.

This situation-inaction on all sides-continued until 2007, when Hanson was convicted of new felony offenses (second- and third-degree assault upon his wife). At this point, Hanson's ten-year-old marijuana convictions assumed new importance.

Under Alaska's sentencing laws, the presumptive range of imprisonment that would govern Hanson's sentencing for his felony assaults hinged on whether he was a first or a second felony offender.[3] (Although Hanson was convicted of two marijuana felonies in 1997, it appears that the State is proceeding under the assumption that these two convictions should be counted as only one ...


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