Appeal
from Madison Circuit Court (CC-18-602)
Minor,
Judge.
Gregory
Blane Laakkonen pleaded guilty on June 26, 2018, to
possession of a controlled substance, see §
13A-12-212, Ala. Code 1975, a Class D felony. The circuit
court sentenced him to 24 months' confinement in the
county jail. Laakkonen appeals, challenging his sentence and
the circuit court's denial of his motion to withdraw his
guilty plea.
Before
Laakkonen pleaded guilty, the circuit court addressed
Laakkonen and his defense counsel.
"You are charged, sir, with possession of a controlled
substance, which is a Class D felony, which statutorily has a
range of punishment of not less than--not more than five
years nor less than a year and a day with the department of
corrections and a fine not to exceed $7, 500.
"....
"Okay. Now, this is subject to the sentencing
guidelines, and as it relates to you, it has a presumptive
sentence range of 15 to 97 months on a straight sentence or 8
to 27 months on a split sentence. Now there is a notation
here that you have two prior felony convictions. Is there a
stipulation or agreement in that regard?"
(R. 2-3.) Laakkonen affirmed that there was an agreement
regarding his two prior felony convictions. The circuit court
continued:
"Okay. All right. And the reason why I ask that is that
is taken into account in coming up with this presumptive
sentence range. Now, as we indicated, the way that this is
scored, non-prison versus prison, you scored in the prison
range, but since it is a Class D felony underneath the
presumptive sentence standards that--since you have two prior
felony convictions, it is a community corrections, probation,
depending upon what the Court decides, okay."
(R. 3-4.) After Laakkonen pleaded guilty, the circuit court
set a sentencing hearing for August 23, 2018.
Before
the sentencing hearing, a "Drug Prison In/Out
Worksheet" and a "Drug Prison Sentence Length
Worksheet" were completed for Laakkonen and provided to
the circuit court. See Presumptive and Voluntary
Sentencing Standards Manual (2016). Laakkonen received a
score of 9 on his In/Out Worksheet, which placed him in the
"prison" range for sentencing. On the Sentence
Length Worksheet Laakkonen received scores for, among other
things, having two prior adult felony Class C convictions.
His total score on the Sentence Length Worksheet was 107,
which gave him a presumptive sentence range of 15 to 97
months on a straight sentence and 8 to 27 months on a split
sentence. (Supp. 30); see also Presumptive and Voluntary
Sentencing Standards Manual 45.
At the
sentencing hearing, the circuit court discussed the
presentence investigative report, portions of the
Presumptive and Voluntary Sentencing Standards
Manual, and § 15-18-8, Ala. Code 1975. The circuit
court noted that Laakkonen had a criminal history that went
back to 1975 and advised Laakkonen that "the worksheet
involved in this matter indicates that this is a prison event
and that the presumptive sentence range for you is 15 to 97
months on a straight sentence and 8 to 27 months on a split
sentence." Laakkonen's counsel advised the circuit
court that "§ 15-18-8 suggests that the court shall
sentence to community corrections." The circuit court
read aloud portions of the presumptive sentencing standards
manual and portions of § 15-18-8, Ala. Code 1975, before
orally pronouncing sentence upon Laakkonen. "So having
previously found you guilty of Possession of a Controlled
Substance, it's the sentence of this Court that you serve
24 months in the Madison County jail." (R. 13-16,
20-21.) The circuit court entered a written sentencing order
to that effect.[1] The circuit court did not split
Laakkonen's sentence. Laakkonen's subsequent motion
to withdraw his guilty plea was denied.
Laakkonen
argues on appeal that his sentence was illegal because, he
says, it was not in accordance with the presumptive
sentencing standards. He contends that the circuit court
improperly sentenced him to 24 months in the county jail and
that the circuit court did not split Laakkonen's sentence
in conformance with § 15-18-8(b), Ala. Code 1975.
Laakkonen also argues that, because he was not advised of the
correct sentence range he could receive for his conviction,
the circuit court erred in denying Laakkonen's motion to
withdraw his guilty plea. The State concedes that Laakkonen
is entitled to relief on both arguments.
The
October 1, 2016, amendment to the presumptive sentencing
standards applies to Laakkonen's guilty plea to a Class D
felony.
"'In 2012, the legislature enacted §
12-25-34.2, Ala. Code 1975, effective May 15, 2012, to
implement presumptive sentencing standards. See Act
No. 2012-473, Ala. Acts 2012. See also Hyde v.
State, 185 So.3d 501, 502-04
(Ala.Crim.App.2015)(detailing the history of the 2012
amendment to the Alabama Sentencing Reform Act of 2003,
codified at §§ 12-25-30 to -38, Ala. Code 1975).
The presumptive sentencing standards became effective on
October 1, 2013, see Clark v. State, 166 So.3d 147
(Ala.Crim.App.2014), and were amended on October 1, 2016, to
"incorporate the new Class D felonies," to add
additional nonviolent crimes to the presumptive sentencing
standards, and to "provide information on the new
sentencing parameters for all Class C and Class D felony
offenses." See Presumptive and Voluntary Sentencing
Standards Manual 15.
"'The Presumptive and Voluntary Sentencing
Standards Manual, as amended, sets forth the offenses
subject to the presumptive sentencing standards and provides
circuit courts instructions and worksheets to use in imposing
a sentence under the presumptive sentencing
standards.'"
State v. Duncan, [Ms. 1170446, Aug. 31, 2018] __
So.3d __ (Ala. 2018) (quoting Duncan v. State, [Ms.
CR-16-0890, Dec. 15, 2017] __ So.3d __, __
(Ala.Crim.App.2017)). Regarding Class D felonies, the manual
provides, in relevant part:
"If the most serious offense at a sentencing event is a
Class D felony and the offender is not sentenced to
probation, drug court, or a pretrial diversion program, the
offender must be sentenced to a 'split sentence'
pursuant to the requirements specified in Ala. Code §
15-18-8(b) and the presumptive sentencing ranges.
"If the most serious offense at a sentencing event is a
Class D felony and the offender's presumptive Prison
In/Out worksheet recommendation is 'IN,' an Alabama
Department of Corrections sentence becomes a sentencing
option only if the offender has been previously convicted of
any three or more felonies, or previously convicted of any
two or more felonies that are Class A or Class B felonies.
"If the most serious offense at a sentencing event is a
Class D felony and the offender's presumptive Prison
In/Out worksheet recommendation is 'OUT,' a County
Jail sentence becomes a sentencing option only if the
offender has been previously convicted of any three or more
felonies, or previously convicted of any two or more felonies
that are Class A or Class B felonies.
"If the most serious offense at a sentencing event is a
Class D felony and the offender's presumptive In/Out
worksheet recommendation is 'IN,' high-intensity
probation under the supervision of the Board of Pardons and
Paroles in lieu of community corrections becomes an option
only if no community corrections program exists within a
county or jurisdiction and no alternative program options are
available pursuant to § 15-18-172(e)[, Ala. Code
1975]."
Presumptive and Voluntary Sentencing Standards
Manual 27. Examples of non-prison ("OUT")
dispositions are probation, community corrections, county
jail/work release, reverse split, and a split sentence with a
suspended split. Examples of prison ("IN")
dispositions are Department of Corrections (prison),
community corrections, [2] split to Department of Corrections,
split to community corrections, and ...