NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
RANDALL GYLES, )
) Court of Appeals No. A-5321
Appellant, ) Trial Court No. 3AN-S93-9148CI
) t/w 3AN-S84-4834CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1429 - August 18, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. John K.
Bodick, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Randall Gyles appeals an order entered by Superior
Court Judge Milton M. Souter dismissing a post-conviction relief
application in which Gyles claimed that he was unlawfully
imprisoned because his parole had been unlawfully revoked.
Specifically, Gyles asserted that the Alaska Parole Board lacked
jurisdiction to revoke his parole and violated his constitutional
privilege against self-incrimination. We conclude that Gyles'
jurisdictional claim is meritless but that the superior court
erred in summarily dismissing Gyles' self-incrimination claim.
Randall Gyles was convicted in 1986 of one count of
sexual abuse of a minor in the second degree, AS 11.41.436(a)(3),
and three counts of sexual abuse of a minor, former AS 11.41.440-
(a)(2). He received a presumptive sentence of six years on the
second-degree sexual abuse of a minor count and presumptive
sentences of three years each on the remaining three counts. The
sentences were partially concurrent and partially consecutive for
a composite term of eight years.
While Gyles was serving this sentence, the Department
of Corrections (DOC) set his mandatory parole release date for
October of 1990. Gyles filed a habeas corpus petition arguing
that DOC's calculation of his release date was incorrect and that
he was entitled to release approximately four months earlier.
The superior court agreed and, on June 26, 1990, ordered DOC to
recalculate Gyles' release date. Based on the recalculation,
Gyles was released on mandatory parole the next day, June 27,
1990.
In April of 1992, while Gyles was on mandatory parole,
this court reversed the superior court's order requiring DOC to
recalculate Gyles' mandatory release date; we concluded that the
original DOC calculation had been correct. State v. Gyles,
Memorandum Opinion and Judgment No. 2388 (Alaska App., April 1,
1992). As a result of our decision, Gyles was ordered to serve
out the remaining four months of his sentence, based on the
original mandatory release date. By then, however, Gyles' parole
had been transferred to Idaho. The state declined to seek his
extradition, allowing him to continue under the supervision of
his Idaho parole officer.
As a condition of his mandatory parole in Alaska, Gyles
had been ordered to participate in sexual offender treatment at
the direction of his parole officer. Upon commencing parole
super-vision in Idaho, Gyles encountered problems gaining
admission to a sexual offender treatment program, since he
refused to acknowledge responsibility for his offenses. Gyles'
original Idaho parole officer, Barbara Purdy, allowed Gyles to
participate in individual counseling in lieu of sexual offender
treatment. Purdy reported to Gyles' Alaska parole officer that
Gyles was cooperative and in compliance with his treatment
requirements.
During the summer of 1992, however, Purdy retired.
Gyles fell under the supervision of parole officer Richard Wold,
who proved less tolerant of Gyles' failure to enroll in a sexual
offender treatment program. Wold believed Gyles to be "a
dangerous sex-offender in need of treatment." In Wold's view,
"[b]ecause [Gyles] has never admitted to [his] offenses, nobody
will provide any sex-offender treatment. Alaska had this problem
with Mr. Gyles and Idaho has this problem." Wold notified Gyles
that he would be required to enroll in a treatment program; as a
step toward enrollment -- a step that is evidently routine in
Idaho -- Wold directed Gyles to submit to a polygraph
examination: "We have scheduled Mr. Gyles for a polygraph
examination . . . , hoping we can gain some insight and determine
if he has re-offended or has had any contact with minors." On
October 17, 1992, however, upon arrival at the polygraph
examiner's office, Gyles declined to submit to the test.
Based upon Gyles' refusal to submit to the polygraph,
the Idaho Department of Corrections closed interest in Gyles'
case and instructed Gyles to report to Alaska parole authorities
by November 1, 1992. Alaska Parole Officer Amy Rabeau spoke to
Gyles by telephone on December 10, 1992, instructing him to
return to Alaska by January 18, 1993. On December 23, 1992,
Rabeau sent Gyles a confirming letter, indicating that a parole
hearing was scheduled for January 26.
On January 13, 1993, Rabeau prepared a parole violation
report, formally alleging that Gyles had violated the conditions
of his parole by failing to obtain sexual offender treatment.
Gyles subsequently returned to Alaska voluntarily, and Rabeau
served him with the parole violation report at the parole
revocation hearing on January 26, 1993. Because Gyles was
unrepresented and had not previously been served with the report,
the Parole Board continued the revocation hearing until February
11, 1993.
At the February 11 hearing, Gyles, through counsel,
argued, in relevant part, that his failure to submit to the
polygraph test in Idaho did not amount to a violation of his
treatment requirement, since the polygraph examiner asked
questions that might have required Gyles to incriminate himself.
Gyles maintained that his parole could not properly be revoked
for his assertion of the constitutional privilege against self-
incrimination. The board nevertheless found that Gyles had
violated parole by failing to obtain sexual offender treatment
and ordered him to serve the remainder of his sentence.
Gyles filed a pro se petition for habeas corpus
challenging the parole revocation order. The superior court
deemed the petition an application for post-conviction relief and
appointed counsel for Gyles. Gyles' attorney eventually
submitted an amended application for post-conviction relief
asserting two claims: first, that the parole board lacked
authority to revoke Gyles' parole, because he was no longer on
mandatory parole when served with the notice of violation on
January 26, 1993; second, that Gyles' parole was unlawfully
revoked because he exercised his privilege against self-
incrimination by refusing to submit to the Idaho polygraph test.
After considering Gyles' application, the state's
response, and Gyles' reply to the state's response, the superior
court served Gyles with notice of its intent to dismiss the
application. Gyles filed a reply to the notice. On April 22,
1994, finding Gyles' reply to be "nothing more than a rehashing
of the arguments in the original application [that] does not cure
the defects[,]" the superior court entered a final order
dismissing the post-conviction relief application.
On appeal, Gyles renews the two arguments he raised in
his application below. Gyles' first argument -- that the parole
board's jurisdiction over him had lapsed -- presents a purely
legal issue that lends itself to summary disposition. Under AS
33.16.-010(a), a prisoner who, like Gyles, has been sentenced to
a term of two years or more becomes eligible for mandatory
parole. To establish the length of a mandatory parole term,
subsection (c) of this statute relies on the amount of good time
credit the prisoner earns while incarcerated: "A prisoner . . .
shall be released on mandatory parole for the term of good time
deductions credited under AS 33.20[.]"1 By contrast, AS
33.16.200, another parole statute, adopts a slightly different
measure in fixing the duration of the parole board's authority
over a prisoner released on mandatory parole: "[T]he board
retains custody of . . . mandatory parolees until the expiration
of the maximum term or terms of imprisonment to which the parolee
is sentenced."2
In most cases and for most purposes involving mandatory
release, there is no difference between these two statutory
measures: adding a prisoner's good-time deductions to the amount
of pre-release time served will equal the maximum term of
imprisonment that prisoner received. Gyles' case, however,
involves a unique set of circumstances. As we have already
indicated, the superior court ordered Gyles released on mandatory
parole beginning June 27, 1990, approximately four months before
the October mandatory release date that DOC had originally
calculated.3 This court subsequently reversed the superior
court's order. Our decision resulted in the reinstatement of
approximately four months of imprisonment, which in effect meant
that Gyles, who was by then in Idaho, had been paroled four
months prematurely.
Had Gyles returned immediately to serve out the
reinstated four-month term and then been re-released on mandatory
parole, his initially premature release would have had no
significant effect on the expiration date of his mandatory parole
or the expiration date of the parole board's jurisdiction over
his case.4 But as long as Gyles did not serve the added four-
month term, the expiration date of his parole, as fixed by AS
33.16.010(c), would theoretically arrive four months sooner than
the expiration of the parole board's jurisdiction over his case,
as fixed by AS 33.16.200.
Gyles in fact did not return to serve out the
reinstated portion of his sentence. He remained on mandatory
parole until the initial date of his parole revocation hearing,
January 26, 1993. Gyles calculates that, under AS 33.16.010(c),
his parole expired on January 7, 1993, almost three weeks before
his appearance before the parole board. Since Gyles was not
served notice of the alleged parole violation until the hearing,
and since no parole violation warrant had previously issued,
Gyles argues that the board lacked jurisdiction over his case.
The state, in response, insists that the expiration of Gyles'
mandatory parole must be governed by AS 33.16.200, which gave the
board jurisdiction over Gyles' case until the expiration of the
maximum term of imprisonment Gyles received. According to the
state, Gyles should thus be deemed to have remained on parole
until April 24, 1993, despite his failure to serve his added jail
term.
For purposes of deciding Gyles' case, we think it
immaterial whether Gyles was technically on parole when his
revocation hearing was held. It is undisputed that the event
triggering Gyles' parole violation hearing was his refusal to
submit to the polygraph examination in Idaho at the direction of
his parole officer. That event occurred in October of 1992, when
Gyles was still plainly on mandatory parole, even under his own
theory of expiration. And just as plainly, regardless of the
date fixed by AS 33.16.010(c) for expiration of Gyles' parole,
the statute governing the parole board's jurisdiction over Gyles
(AS 33.16.200) gave the board continuing jurisdiction over Gyles'
case until the expiration of the maximum term to which Gyles had
been sentenced -- a date that did not arrive until April of 1993,
well after the hearing. Because Gyles was charged with a
violation that indisputably occurred while he was still on parole
under AS 33.16.010(c), and because notice of the violation was
served on Gyles and resolved while the board indisputably
retained jurisdiction over Gyles under AS 33.16.200, the validity
of the board's action does not hinge on whether Gyles is deemed
to have been technically on parole at the time of his hearing.
The superior court did not err in rejecting Gyles' jurisdictional
claim.
We turn now to Gyles' self-incrimination claim, which
is more difficult to characterize as a purely legal issue than
was his jurisdictional argument.5 On the one hand, Gyles broadly
argues that he had a right to invoke the privilege against self-
incrimination in response to any questions dealing with sexual
misconduct -- even questions dealing with the misconduct for
which he was convicted. This argument is mistaken in its
breadth. On the other hand, the superior court appears to have
concluded that Gyles had no right to claim the constitutional
privilege, even as to questions seeking information about sexual
offenses for which Gyles has not been convicted. This conclusion
also sweeps too broadly.
In Minnesota v. Murphy, 465 U.S. 420 (1984), the United
States Supreme Court addressed the federal constitution's Fifth
Amendment privilege against self-incrimination in the context of
a probation case. The Court held that a defendant who has been
convicted and placed on probation does not lose the protection of
the constitutional privilege, "notwithstanding that [the]
defendant is imprisoned or on probation at the time [of the]
incriminating statements[.]"6 For this reason, the state may not
revoke, or threaten to revoke, probation for a valid invocation
of the privilege. Id. at 435. As the Arizona Supreme Court has
recently recognized, "Minnesota v. Murphy makes clear that the
state cannot make waiver of the privilege against self-
incrimination a condition of probation." Eccles, 877 P.2d at 800
(citation omitted); see also State v. Gleason, 576 A.2d 1246,
1251 (Vt. 1990).
A probationer or parolee cannot validly invoke the
constitutional privilege, however, when there is "no real or
substantial hazard of incrimination." State v. Gonzalez, 853
P.2d 526, 530 (Alaska 1993)(quoting E.L.L. v. State, 572 P.2d
786, 788 (Alaska 1977)). As expressly recognized in Minnesota v.
Murphy, a probationer may be questioned concerning matters
relevant to probation that pose "no realistic threat of
incrimination in a separate criminal proceeding." 465 U.S. at
435 n.7.7 The burden of establishing a hazard of incrimination
is on the claimant. McConkey v. State, 504 P.2d 823, 825 (Alaska
1972). But this burden is not a great one: "`To sustain the
privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could
result.'" Id. (quoting Hoffman v. United States, 341 U.S. 479,
486-87 (1951)).
In the present case, to the extent Gyles' post-
conviction relief application alleges a violation of his
privilege against self-incrimination based on his refusal to
answer questions concerning the conduct for which he had been
convicted, Gyles has failed to meet even this modest burden.
Gyles was convicted and sentenced in 1986 and he has no remaining
right of direct appeal. Gyles mentions in his application that
he had a federal habeas corpus action pending when he transferred
parole to Idaho, but he makes no claim that the action was still
pending when he refused to take the polygraph examination. Nor
does he set forth any factual circumstances to establish that the
habeas action, even if still pending, might give rise to a
realistic hazard of incrimination. Under the circumstances,
Gyles has failed to show that he had a valid claim of privilege
as to questions dealing with the offenses for which he already
stands convicted.8
The same cannot be said of Gyles' claim that he
properly invoked his privilege as to questions dealing with other
potential criminal misconduct -- acts of abuse for which he had
not previously been prosecuted or convicted. Under Murphy v.
Minnesota, 465 U.S. at 435 n.7, a state may compel a probationer
to answer incriminating questions relating to unprosecuted
offenses only upon express recognition of the probationer's
immunity from criminal prosecution as a result of the answers
given. As the Vermont Supreme Court recently held: "If the
questions asked of a probationer call for answers that would
incriminate him in a pending or later criminal prosecution, the
State will have created the classic penalty situation if it
asserts, either expressly or by implication, that an invocation
of the privilege would result in probation revocation." Gleason,
576 A.2d at 1251.
In the affidavit Gyles filed in support of his
application for post-conviction relief, Gyles expressly alleged,
in relevant part, that
Mr. Fisher [the polygraph examiner] told
me the questions he'd ask me during the
polygraph examination would convey [sic] not
only the offenses for which I was convicted
but also any and all past behavior. I
refused to cooperate based upon Mr. Fisher's
line of questioning of my behavior prior to
my conviction, without the advice of an
attorney or one pressent [sic] at questioning
by Fisher.
This sworn statement may reasonably be read as an allegation that
Gyles asserted the constitutional privilege, not in response to
questions dealing with the offenses for which he was convicted,
but with respect to other potentially unlawful conduct.
Under McConkey, Gyles' claim must be deemed valid
"unless it is `perfectly clear . . . that the witness is
mistaken, and that the answer[s] cannot possibly have such
tendency' to incriminate." Id. at 825-26 (quoting Hoffman v.
United States, 341 U.S. at 488). The record contains nothing
suggesting that Gyles had been assured immunity from prosecution
for any newly revealed misconduct. If Gyles' sworn statement is
taken in the light most favorable to Gyles' case, as it must be
at the first stage of a post-conviction relief proceeding,9 the
statement must be read to assert that Gyles refused to take the
polygraph to avoid potential self-incrimination, and the facts
set forth by Gyles demonstrate a sufficient hazard of
incrimination to support a valid claim of privilege.
Other information in the record certainly casts doubt
on the accuracy of the assertion in Gyles' affidavit, suggesting
that Gyles may have declined to cooperate out of a reluctance to
discuss the conduct that led to his conviction. This
contradictory information, however, indicates the potential
existence of disputed facts whose resolution would require an
evidentiary hearing. The contradictory information does not
defeat the facial adequacy of Gyles' post-conviction relief
application, since the facts alleged therein are assumed to be
true for purposes of deciding the appropriateness of dismissal on
the pleadings. For this reason, we conclude that the superior
court erred in dismissing Gyles' application on the pleadings,
without allowing the case to proceed to discovery and an eventual
hearing, if necessary.10
The superior court's order of dismissal is VACATED, and
this case is REMANDED for further proceedings consistent with
this decision.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. AS 33.16.900(7) defines mandatory parole as "the
release of a prisoner who was sentenced to one or more terms of
imprisonment of two years or more, for the period of good time
credited under AS 33.20, subject to conditions imposed by the
board and subject to its custody and jurisdiction[.]"
2. See also AS 33.20.040(a), which governs the custody of
released prisoners and the parole board's jurisdiction over them:
Except as provided in (c) of this
section, a prisoner released under AS
33.20.030 shall be released on mandatory
parole to the custody and jurisdiction of the
parole board under AS 33.16, until the
expiration of the maximum term to which the
prisoner was sentenced, if the term or terms
of imprisonment are two years or more.
However, a prisoner released on mandatory
parole may be discharged under AS 33.16.210
before the expiration of the term.
3. DOC had originally given Gyles 921 days of good time
(935 minus 14 forfeited days); after recalculation, Gyles was
awarded 1043 days of good time.
4. The two dates would have continued to correspond:
adding Gyles' total time served to his accumulated good-time
deductions (the term of parole prescribed by AS 33.16.010(c))
would still have yielded a result approximately equivalent to
"the expiration of the maximum term or terms of imprisonment to
which" he had been sentenced (the parole board's last day of
jurisdiction as prescribed by AS 33.16.200).
5. As a threshold matter, we must mention the state's
contention that, by agreeing to be supervised on parole in Idaho
and to follow the instructions of his Idaho parole officer, Gyles
waived any claim of self-incrimination he might otherwise have
had. It is well settled that a parolee's failure to challenge an
invalid condition of parole upon its imposition does not amount
to a waiver barring a subsequent claim of invalidity. See Roman
v. State, 570 P.2d 1235, 1241-42 (Alaska 1977); State v. Eccles,
877 P.2d 799, 802 (Ariz. 1994)(en banc). The state's waiver
argument thus lacks merit.
6. Although Minnesota v. Murphy dealt with probation, it
is clear that, for present purposes, the ruling applies equally
to parole. See Roman, 570 P.2d at 1244.
7. The Supreme Court went on to make clear that the threat
of divulging information that might lead to revocation of
probation could not justify invocation of the privilege against
self-incrimination, since revocation proceedings are not criminal
in nature. Id.
8. See, e.g., State v. Carrizales, 528 N.W.2d 29, 32 (Wis.
App. 1995); Gleason, 576 A.2d at 1251.
9. In DeJesus v. State, ___ P.2d ___, Op. No. 1415 (Alaska
App., June 23, 1995), we stated:
Alaska Criminal Rule 35.1 governs post-
conviction relief applications. This rule
establishes "a three-phase process, the first
phase involving the filing of the application
and the assessment of its sufficiency to set
out a prima facie case for relief, the second
phase involving discovery and review for
genuine issues of material fact, and the
third involving the evidentiary hearing and
formal resolution of disputed facts." Parker
v. State, 779 P.2d 1245, 1246 (Alaska App.
1989)(footnote omitted). Here, the superior
court disposed of DeJesus' application in the
first phase of the process, ordering the
application dismissed for failure to set out
a prima facie case for relief. In reviewing
the superior court's decision, we must thus
determine whether the application sets out
facts which, if true, would entitle DeJesus
to the relief claimed. See Alaska R. Crim.
P. 35.1(f)(2); State v. Jones, 759 P.2d 558,
565 (Alaska App. 1988).
10. While Gyles argues that his privilege against self-
incrimination shields him from discussing the misconduct for
which he was convicted -- an argument that we have rejected here
-- he does not assert that the condition of parole requiring him
to obtain treatment is per se invalid or that his parole could
not properly be revoked for violating that condition in the
absence of a valid claim of self-incrimination. Accordingly,
although both parties devote considerable attention to the issue
of whether a probationer or parolee can be forced, as a condition
of probation or parole, to admit responsibility for the sexual
misconduct that resulted in the conviction, we have no occasion
to consider this difficult question. Cf. Nelson v. Jones, 781
P.2d 964, 969 (Alaska 1989). Compare State v. Imlay, 813 P.2d
979 (Mont. 1991), with Asherman v. Meachum, 957 F.2d 978, 982-83
(2d Cir. 1992)(prisoner may be terminated from home-release for
refusing to discuss his crime); State v. Eccles, 877 P.2d 799,
801 (Ariz. 1994)(defendant must answer questions about crimes for
which he has been convicted, even if answers may result in
probation revocation); People v. Ickler, 877 P.2d 863, 866-67
(Colo. 1994)(defendant who pled guilty and subsequently refused
to admit crime for sex offender evaluation violated conditions of
his probation; to not revoke probation under such circumstances
would encourage sex offenders to deny crimes to avoid
participation in treatment); Henderson v. State, 543 So.2d 344,
346 (Fla. Dist. App. 1989)(treatment that requires sex offender
to admit responsibility for behavior does not violate right
against self-incrimination because admission comes after
conviction); State v. Gleason, 576 A.2d 1246, 1250-52 (Vt. 1990)
(special condition of probation which required defendant to
discuss sexual issues surrounding his convictions for sex
offender treatment did not violate right against self-
incrimination); State v. Ralph, 706 P.2d 641, 646 (Wash. App.
1985)(probation properly revoked where defendant refused to
submit to evaluation without which he could not be accepted in
sexual offender treatment); State v. Carrizales, 528 N.W.2d 29,
32 (Wis. App. 1995)(right of self-incrimination not violated by
sex offender treatment that required defendant to admit
committing the sexual assault for which he had been convicted).
