ADAM BARGER, Appellant,
v.
STATE OF ALASKA, Appellee.
Court of Appeals No. A-12223No. 6284
COURT OF APPEALS OF THE STATE OF ALASKA
February 17, 2016
ADAM BARGER, Appellant, v. STATE OF ALASKA, Appellee.
Court of Appeals No. A-12223No. 6284
COURT OF APPEALS OF THE STATE OF ALASKA
February 17, 2016
NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly this memorandum decision may not be cited as binding authority for any proposition of law.
Trial Court No. 3AN-94-1445 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge.
Appearances: Adam Barger, pro se, Wasilla. Clinton M. Campion, Assistant District Attorney, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.
Judge SUDDOCK.
Adam Barger was sentenced to 75 years' imprisonment pursuant to a 1995 conviction for first-degree murder. At his sentencing, the judge stated in passing that
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the sentence should reflect "some measure of punishment and retribution. " Barger did not object. He subsequently filed a direct appeal, but the appeal was dismissed on January 16, 1996, after Barger failed to file his opening brief.
On February 5, 2015, Barger filed a pro se motion with the superior court under Alaska Criminal Rule 35(a), arguing that his sentence was illegal because the sentencing judge mentioned "retribution" as a goal in imposing his sentence. (The Alaska Supreme Court has held that the use of retribution as a sentencing goal is inconsistent with Article 1, Section 12 of the Alaska Constitution. ) The superior court dismissed Barger's motion, and this appeal followed.
Criminal Rule 35(a) authorizes the trial court to correct an illegal sentence "at any time. " But as this Court has explained, the term "illegal sentence" is a term of art applicable to "sentences that the judgment of conviction did not authorize. " Here, Barger's claim that his sentence was based on an impermissible sentencing goal does not fall within the narrow class of claims authorized by Criminal Rule 35(a). We therefore conclude that Barger's claim is effectively an untimely appeal, and on that basis we AFFIRM the decision of the superior court.
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Footnotes:
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Former AS 11. 41. 100(a)(1)(A) (1998).
Smothers v. State 579 P.2d 1062 1064 (Alaska 1978).
Bishop v. Anchorage 685 P.2d 103 105 (Alaska App. 1984).
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Footnotes:
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Former AS 11. 41. 100(a)(1)(A) (1998).
Smothers v. State 579 P.2d 1062 1064 (Alaska 1978).
Bishop v. Anchorage 685 P.2d 103 105 (Alaska App. 1984).
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