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.

MEMORANDUM OPINION

ALLARD, J.

Charles Roger Haught pleaded guilty to felony driving while under the influence and received a sentence of 24 months in jail with 20 months suspended (4 months to serve) and three years of probation. After he was released on probation, Haught committed two new offenses: theft and escape. Through a plea agreement, Haught pleaded guilty to the new offenses and received agreed-upon sentences of 1 year on the theft charge and 6 years on the escape charge, for a composite sentence of 7 years to serve. As part of the same plea agreement, Haught agreed to reject further probation in his felony DUI case. There was no agreement, however, as to how much of the approximately 20 months of suspended time remaining on the DUI sentence should be imposed. This portion of Haught's sentence was left open to the court's sentencing discretion.

At the disposition hearing, Haught's attorney argued that the 7 years to serve already imposed in the other cases was sufficient to meet the Chaney sentencing criteria, and therefore the superior court should terminate Haught's probation in this case but impose no additional time.1 The prosecutor argued that Haught's lengthy criminal history and poor record on probation required all 20 months of suspended time to be imposed.

The superior court imposed 18 of the 20 months to serve. Haught now appeals, arguing that the 18-month sentence is excessive and that the court failed to adequately justify its decision to impose 18 months to serve given the 7 years to serve already imposed in the other cases. For the reasons explained here, we conclude that we do not have jurisdiction to hear Haught's appeal.2 We therefore forward this appeal to the Alaska Supreme Court pursuant to Alaska Appellate Rule 215(k).

Why we conclude that we do not have jurisdiction to hear this appeal

Under AS 22.07.020(b) and Appellate Rule 215(a), this Court has no jurisdiction to hear an excessive sentence claim in a felony case if the active jail time imposed is less than 2 years to serve.3 Instead, the defendant must seek relief through a discretionary petition for sentence review with the Alaska Supreme Court.4

Haught acknowledges that the sentence he received in this case was less than 2 years to serve. He points out, however, that the composite sentence he received as a result of his plea agreement was 8 ½ years to serve — i.e., well above our 2-year jurisdictional threshold.

We have previously recognized that when a probationer commits new crimes and is sentenced both for the new crimes and the related violation of probation, "the court must consider the appropriateness of its sentencing decision as a whole ... specifically determin[ing] that the composite sentence it elects to impose is justified under the totality of the circumstances."5 We therefore agree with Haught that review of the alleged excessiveness of the 18-month sentence in this case will also require consideration of the 7 years he received for his subsequent theft and escape offenses.

We have also previously declared that when a defendant receives a composite sentence based on criminal convictions in more than one case, we will refuse to review the alleged excessiveness of the composite sentence unless the defendant appeals all of the underlying cases that contribute to the composite sentence.6 As we have explained "when a defendant receives a composite sentence based on criminal convictions in more than one case, we will not review the composite sentence for alleged excessiveness, unless the defendant appeals all of the underlying cases" because "[o]nly then are we assured that we have a sufficient record of the underlying proceedings to adequately [evaluate] the defendant's composite sentence."7

However, here, Haught is precluded from appealing the other components of his composite sentence because they were specifically agreed upon as part of his bargained-for plea agreement. Under Appellate Rule 215(a), a defendant may not appeal a sentence as excessive to this Court if the sentence was imposed as part of a plea agreement that provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence.8 In some circumstances, a defendant can challenge his bargained-for sentence as excessive through a discretionary petition for sentencing review with the Alaska Supreme Court.9 But Haught is precluded from challenging his theft and escape sentences through such a petition because these sentences were agreed-upon sentences over which the court exercised no sentencing discretion.10

Haught is entitled to challenge the portion of his composite sentence over which the sentencing court did exercise its sentencing discretion — that is, Haught is entitled to challenge as excessive the 18-month sentence on his probation case. But because that portion of his composite sentence falls below our jurisdictional threshold, his challenge must be brought through a discretionary petition for sentence review with the Alaska Supreme Court.11

Accordingly, we forward Haught's case to the Alaska Supreme Court under Appellate Rule 215(k).