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Twogood v. State

Court of Appeals of Alaska

February 5, 2010

Joshua S. TWOGOOD, Appellant,
v.
STATE of Alaska, Appellee.

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[Copyrighted Material Omitted]

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Jason A. Gazewood, Gazewood & Weiner, Fairbanks, for the Appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

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

OPINION

MANNHEIMER, Judge.

This appeal is a sequel to our decision in Twogood v. State, 196 P.3d 1109 (Alaska App.2008). In that earlier decision, we resolved a dispute concerning the date on which Twogood became eligible to apply for discretionary parole, and we directed the superior court to amend Twogood's written judgement to reflect our ruling. In the current appeal, Twogood raises various challenges to the

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proceedings that occurred in the superior court following our earlier decision.

Underlying facts: the indictment, the plea bargain, and the first appeal

In 1999, Joshua S. Twogood was indicted on eight different felony counts: two counts of attempted murder (Counts I and II), five counts of first-degree sexual assault (Counts III through VII), and one count of kidnapping (Count VIII). These charges were resolved when Twogood reached a plea agreement with the State. Under the terms of this plea agreement, Twogood would plead no contest to Count I (attempted murder) and Count III (first-degree sexual assault), and the State would dismiss the other charges. Twogood and the State agreed that Twogood would receive a composite sentence of 20 years to serve, with the sentencing judge having the discretion to impose additional suspended jail time.

One of Twogood's sentences-his sentence for first-degree sexual assault-was governed by Alaska's presumptive sentencing law. As a first felony offender, Twogood faced an 8-year presumptive term of imprisonment for this offense. [1] (Twogood faced an indeterminate sentence of 5 to 99 years for the attempted murder.[2])

In connection with Twogood's sentencing for the sexual assault, the State proposed several aggravating factors under AS 12.55.155(c): (c)(1)-that his victim sustained physical injury; (c)(2)-that Twogood manifested deliberate cruelty during the offense; (c)(18)(A)-that Twogood committed the offense against a member of his household (his spouse); and (c)(18)(B)-that Twogood had engaged in prior sexual assaults against the same victim.

Twogood opposed most of these aggravating factors, but he conceded aggravator (c)(18)(A) ( i.e., that the offense was committed against a member of his household). Under Alaska's presumptive sentencing law, even if the State failed to prove the other proposed aggravating factors, Twogood's concession of this one aggravating factor authorized the superior court to exceed the 8-year presumptive term of imprisonment for the sexual assault.[3] The superior court did, however, find that the State had proved its other proposed aggravators.

In August 2000, pursuant to the plea bargain (and pursuant to its rulings on the aggravating factors), the superior court entered judgement against Twogood for attempted murder and first-degree sexual assault. For the attempted murder, the superior court sentenced Twogood to 20 years' imprisonment with 5 years suspended (15 years to serve). For the sexual assault, the court sentenced Twogood to 14 years' imprisonment with 4 years suspended (10 years to serve).

To comply with the parties' agreement that Twogood would receive a composite sentence of 20 years to serve, the sentencing judge declared that these two sentences would be partially consecutive, giving Twogood a total of 20 years in prison (with an additional 9 years suspended).

After the judge announced this sentence, both the prosecutor and the defense attorney asked the judge to specify the order of Twogood's sentences- i.e., to specify whether Twogood's composite 20 years in prison was to consist of a 10-year sentence for sexual assault followed by a consecutive 10 years for attempted murder or, conversely, whether Twogood was to serve 15 years for attempted murder followed by a consecutive 5 years for sexual assault. But even though both parties sought this clarification, the sentencing judge refused to specify the precise way in which Twogood's two sentences added up to the composite 20 years to serve. The judge concluded (erroneously) that this kind of specificity

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was not required because it made no difference to Twogood's total penalty or to Twogood's parole eligibility.

Twogood filed an appeal of the superior court's sentencing decision. See Twogood v. State, Alaska App. Memorandum Opinion No. 4600 (July 24, 2002), 2002 WL 1627474-hereafter, Twogood I. In that appeal, Twogood attacked most of the superior court's rulings on the aggravating factors. However, he did not challenge the superior court's finding of aggravator (c)(1) (that the victim suffered physical injury). Moreover, as we previously explained, Twogood conceded aggravator (c)(18)(A) during the sentencing proceedings in the superior court. We affirmed the superior court's judgement.

Underlying facts: Twogood's second appeal, in which he sought clarification of the order in which he was to serve his two sentences

Another issue that went unchallenged in Twogood's initial appeal was the superior court's refusal to specify the order of Twogood's two sentences. Several years later, however, Twogood perceived that the order of his sentences might affect his parole eligibility date, so he asked the superior court to issue an order clarifying this matter.

By that time, Twogood's original sentencing judge had retired, so the case was assigned to another judge, Superior Court Judge Randy M. Olsen. Judge Olsen declined to further clarify Twogood's sentences; he concluded that the calculation of Twogood's parole eligibility date was a matter entrusted solely to the Department of Corrections. Twogood then appealed the superior court's refusal to take action.

In Twogood v. State, 196 P.3d 1109 (Alaska App.2008)-hereafter, Twogood II -we concluded that Twogood's parole eligibility date did, indeed, hinge on which of his two sentences was the " initial" or " primary" sentence ( i.e., the sentence to be served in full) and which one was the partially concurrent sentence. 196 P.3d at 1114. We then ruled that, because Twogood's original sentencing judge had refused to clarify this issue when the sentences were imposed, we were obliged to construe the ambiguity in Twogood's favor- i.e., to interpret the superior court's judgement in the manner that gave Twogood the earlier parole eligibility date. Id. This meant treating Twogood's 10-year sentence for sexual assault as his primary sentence, followed by a partially concurrent sentence of 15 years for attempted murder. Id. at 1115.

We then directed the superior court to amend Twogood's written judgement so that it reflected our construction of Twogood's sentences. Id.

Underlying facts: the proceedings in the superior court following our decision

Our decision in Twogood II was issued on November 21, 2008. Under Alaska Appellate Rule 303(a), the State had fifteen days to ask the supreme court to review our decision, but the State did not do so. Thus, pursuant to Alaska Appellate Rules 507(b) and 512(a)(2)[a], our decision took effect on Monday, December 8, 2008. Six weeks later, on January 23, 2009, Judge Olsen signed an amended judgement which, in effect, declared that Twogood's sexual assault sentence was his primary sentence, and that Twogood's attempted murder sentence was partially concurrent with (and partially consecutive to) the sexual assault sentence.

After Judge Olsen distributed this amended judgement to the parties, Twogood filed a " Motion for Reconsideration of [the] Amended Judgment" . In this motion, Twogood challenged the amended judgement on two grounds.

Twogood argued that, before Judge Olsen could properly issue an amended judgement, the judge was obliged to hold a new sentencing hearing-and that Twogood was entitled to personally appear at that hearing.

Twogood also challenged one of his conditions of probation, Special Condition No. 9. This probation condition specified that Twogood was required to " [s]ubmit to a warrantless, non-consensual search by a law enforcement officer of [his] person, personal property, residence[,] or any vehicle [in which he is ...


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