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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5984
Appellant, ) Trial Court No. 4FA-94-826 Cr
)
v. ) O P I N I O N
)
TIMOTHY HISER, )
)
Appellee. ) [No. 1492 - October 11, 1996]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Jay Hodges, Judge.
Appearances: John K. Bodick, Assistant Attor
ney General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant. Tim
Jannott, Stepovich, Kennelly, & Stepovich,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Under the terms of a plea bargain, Timothy Hiser was
convicted of unsworn falsification and sentenced to a year in
prison. Because Hiser suffers from certain psychiatric conditions,
the superior court included the following provision in its
sentencing order:
IT IS FURTHER ORDERED that [the Fairbanks
Correctional Center] is to provide the defen-
dant with [the] medication that was ordered by
[Hiser's personal physician] unless [the
Department of Corrections] can show good cause
why they should not provide it.
The State of Alaska appeals this provision of the judgement.
The State concedes that Hiser would be able to file a
civil action against the Department of Corrections if he believed
that he was not receiving adequate medical or psychiatric attention
in prison. However, the State argues that the superior court has
no authority to enter an order dealing with a prisoner's medical
care as part of its sentence in a criminal case. We agree.
As the State points out in its brief, a similar issue
arose in LaBarbera v. State, 598 P.2d 947 (Alaska 1979). LaBarbera
was sentenced to a 15-year term of imprisonment. He asked the
superior court to order the Department of Corrections to furlough
him to a particular treatment center after he had served 3 years of
this 15-year sentence. LaBarbera desired this furlough so that he
could participate in a 2-year rehabilitative program offered by the
halfway house. LaBarbera wanted the furlough to begin when he had
served 3 years in prison so that he could complete the 2-year
program by the time he was eligible for parole (i.e., after he had
served one third of his sentence).
The superior court ruled that it had no authority to grant
LaBarberaūs request, and the supreme court upheld that ruling on
appeal. The supreme court noted that it had already ruled that a
sentencing court has no authority to order the Department of
Corrections to place a sentenced prisoner in any particular
correctional facility. Rust v. State, 582 P.2d 134, 138, modified
on rhrg., 584 P.2d 38 (Alaska 1978). Explaining this limitation on
a sentencing courtūs power, the court in Rust stated:
This conclusion reflects the principles which
govern the powers of Alaskaūs judiciary in
relation to those of the executive. ... When
an act is committed to executive discretion,
the exercise of that discretion within consti
tutional bounds is not subject to the control
or review of the courts. To interfere with
that discretion would be a violation of the
doctrine of separation of powers.
Rust, 582 P.2d at 138 n.11 (quoting Public Defender Agency v.
Superior Court, Third Judicial District, 534 P.2d 947, 950 (Alaska
1975).
Elaborating on its ruling in Rust, the LaBarbera court
declared:
In Rust we recognized a prisonerūs right to
necessary medical services, including psycho-
logical and psychiatric treatment, and [we also
recognized] the authority of the judiciary to
enforce that right upon a proper showing in an
independent civil action. 584 P.2d at 39.
Subsequently, in Abraham v. State, 585 P.2d 526
(Alaska 1978), Rust was extended to encompass
a prisonerūs right to a rehabilitation program
under article I, section 12, of the Alaska
Constitution and AS 33.30.020. However, our
recognition of the right to rehabilitation does
not imply that a court at the time sentence is
pronounced has the authority to designate a
particular facility for incarceration of the
defendant or a particular program for his
rehabilitation. It is only after a demonstrat-
ed failure to provide an appropriate rehabili-
tation program that judicial intervention is
proper. Thus the superior court in this case
correctly concluded that it could not grant the
relief requested in LaBarberaūs motion for
modification of sentence.
LaBarbera, 598 P.2d at 949 (footnote omitted).
In support of the superior courtūs order in the present
case, Hiser relies on Article I, Section 12 of the Alaska Consti-
tution, which provides: ūCriminal administration shall be based on
the following: the need for protecting the public, community
condemnation of the offender, the rights of victims of crimes,
restitution from the offender, and the principle of reformation.ū
Hiser argues that it was the superior courtūs duty to impose a
sentence that would, if possible, advance Hiserūs rehabilitation.
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970). Hiser
further argues that, because he suffers from mental illness, his
successful rehabilitation necessarily depends upon his receiving
psychotropic medication. Thus, Hiser continues, the superior court
had the authority to order the Department of Corrections to provide
Hiser with the medications recommended by Hiserūs psychiatrist.
However, Rust and LaBarbera clearly hold that even though
a prisoner has a constitutional right to medical care and to
rehabilitative treatment, a sentencing court has no power to issue
a criminal judgement that dictates the particulars of a prisonerūs
care and/or treatment. These matters are entrusted in the first
instance to the discretion of the Department of Corrections. If a
prisoner believes that the Department has abused that discretion,
he or she can bring suit against the Department to correct the
situation. But the superior court has no authority to tell the
Department in advance how it shall care for its sentenced prisoners.
Rust, 582 P.2d at 138 & n.11; LaBarbera, 598 P.2d at 949.
Even though the State relies on Rust and LaBarbera,
Hiser's brief contains no discussion of these two cases. In fact,
Hiser fails to mention these cases at all. Hiserūs pointed refusal
to address controlling decisions of the supreme court must be
interpreted as a tacit concession that Rust and LaBarbera are
dispositive of his case. (EN1)
The challenged portion of the superior courtūs judgement
is VACATED. (EN2)
ENDNOTES:
1. We express no opinion on a trial courtūs authority to issue
orders regarding a prisonerūs psychiatric treatment pending
sentencing. We likewise express no opinion on a trial courtūs
authority to order continuing treatment of a newly incarcerated
prisoner until the Department of Corrections is able to conduct its
own evaluation of the prisonerūs medical needs.
2. The State separately challenges the superior courtūs
authority, after imposing sentence, to order the Department of
Corrections to transport Hiser to hospitals or other medical
offices where he was to be evaluated by a private physician.
Because the superior courtūs transportation orders were predicated
on the now-vacated provision of the criminal judgement, we agree
with the State that the transportation orders should not have been
issued. We express no opinion on the courtūs authority to issue
prisoner transportation orders in connection with the evaluation
and treatment of a defendant incarcerated pending trial or
sentencing.
