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Banister v. State1/28/1998
that the Judge's decision to impose the remaining 2½ years of Banister's sentence was not clearly mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Banister raises one other point on appeal. At the sentencing hearing, the State reported that the jail had been allowing Banister to have contact visits with his daughters; the prosecutor asked Judge Carpeneti to order a stop to this. Despite the prosecutor's request, Judge Carpeneti did not order the Department of Corrections to preclude Banister from having contact visits with children. Instead, the Judge stated, "I'm going to order that he have no contact with minor females unless it's approved by the jail."
However, when the written judgment was prepared, Judge Carpeneti's order was translated into a directive that Banister "have no contact with female children while incarcerated". Banister challenges this provision of the written judgment. He argues that the superior court has no authority to control prison officials' supervision of a prisoner, nor any power to control a defendant's conduct in prison except as a condition of probation. But see AS 12.55.015(a)(10) (authorizing a sentencing court to order a defendant to participate in rehabilitative treatment while in prison).
This issue is moot because the written judgment does not accurately reflect Judge Carpeneti's sentencing order. When a Judge's oral imposition of sentence differs from the ensuing written judgment, the oral judgment controls. Figueroa v. State, 689 P.2d 512, 514 (Alaska App. 1984). At sentencing, Judge Carpeneti ordered that Banister should not have contact with minor females "unless ... approved by the jail". Since Banister is a prisoner, and since jail officials presumably control his contacts with visitors, Judge Carpeneti's "order" seemingly does no more than reiterate the obvious.
In his brief to this court, Banister affirmatively asserts that "he Department of Corrections can and does impose restrictions on inmates' visiting privileges", and that "Banister, while incarcerated, [need not] be allowed unfettered contact with children". According to Banister, "he point is that only the Department of Corrections, not the trial court, has the authority to determine under what conditions it is appropriate for Mr. Banister to see his daughter."
Judge Carpeneti's oral judgment is fully consistent with Banister's position. The problem is that the written judgment needs to be amended so that it conforms with Judge Carpeneti's oral judgment. Accordingly, we direct the superior court to issue a corrected written judgment to eliminate this discrepancy. In all other respects, the judgment of the superior court is AFFIRMED.
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