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
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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES R. COVINGTON, )
) Court of Appeals No. A-5932
Appellant, ) Trial Court No. 3AN-S95-3225CI
) t/w 4FA-S83-1592CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1531 - May 23, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Mark C. Rowland, Judge.
Appearances: Darrel J. Gardner, Assistant
Public Advocate, and Brant G. McGee, Public
Advocate, 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].
COATS, Judge.
In 1983, Charles R. Covington was convicted of two counts
of lewd and lascivious acts toward a child and four counts of
sexual assault in the first degree. (EN1) Covington appealed
several times. Ultimately, Superior Court Judge Jay Hodges
sentenced Covington to a composite term of 15 years of imprisonment
with 2« years suspended, followed by a period of 5 years of
probation.
Covington was released on November 7, 1991, on mandatory
parole to the Tennessee parole authorities. Covingtonžs parole
requirements included general parole conditions as well as eight
supplemental conditions, including Condition #21:
SEX OFFENDER PROGRAMMING: I will actively
participate in approved sex offender
monitoring/counseling/treatment as directed by
my parole officer. I will sign and abide by
the conditions of a treatment agreement estab-
lished by the treatment program. I will
continue active participation and attendance
in sex offender programming to my parole
officeržs satisfaction. I will obtain the
prior permission of my parole officer before
voluntarily discontinuing sex offender pro-
gramming. If I am released, removed or
terminate[d] from this program (temporarily or
permanently) for any reason, I will notify my
parole officer the next working day. I agree
to allow my parole officer access to any
information obtained by the sex offender
programming personnel, including my attendance
and performance in the program.
In 1994, Covington applied to Luton Mental Health
Center's sex offender treatment program in Tennessee. Covington's
parole officer agreed that the Luton Hospital program would be an
acceptable sex offender treatment program for Covington to
participate in. As a prerequisite for entering Lutonžs program,
however, the applicant must accept responsibility for his sex
offense. Because Covington refused to admit his past offenses,
Luton would not admit him into its program. Covington asserts that
no sex offender program will accept him due to his refusal to admit
guilt.
Covington's Tennessee parole officer reported to the
Alaska Parole Board that žNo sex offender program will accept
[Covington] because he will not admit to being guilty of the
offense.ž On April 5, 1994, an Alaska probation officer issued an
interstate compact to the Tennessee officer ordering Covington to
comply with sex offender counseling mandated by condition #21 of
his Alaska parole conditions or face return to Alaska. On October
6, 1994, Covington's Tennessee parole officer issued a parole
violation report recommending that Tennessee close interest in the
case, because ž[Covington] is a sex offender who is refusing to
admit to guilt, so no sex offender program will accept him.ž
On November 22, 1994, the Alaska Board of Parole issued
a parole arrest warrant, which was forwarded to Tennessee and
served on Covington by a Tennessee officer on December 9, 1994.
The only alleged violation of Covingtonžs parole is his failure to
comply with condition #21, participation in a sex offender program.
On January 6, 1995, the Tennessee parole authorities held a
probable cause hearing, and determined probable cause existed to
find that Covington violated Supplemental Condition of Parole #21.
While in Tennessee, Covington filed numerous actions in
both state and federal court to block his extradition to Alaska.
The courts denied all of these motions and petitions. Covington
was held in custody by Tennessee officials until March 24, 1995,
when Alaska State Troopers transported him back to Alaska. The
state asserts that the troopers followed standard procedure by
waiting to extradite Covington until they were relatively certain
that extradition would not be blocked by the Tennessee courts.
On April 20, 1995, the Alaska Parole Board held a final
revocation hearing, determined that Covington had violated his
parole by not complying with parole condition #21, and imposed the
remainder of his sentence to be served in custody. Covington filed
actions in superior court protesting the parole board's actions.
Superior Court Judge Mark C. Rowland denied Covington's requests
for relief.
Covington raises three main issues on appeal: (1) whether
the parole board's delay in holding a final parole revocation
hearing violated Covington's procedural due process rights; (2)
whether the parole board violated Covington's substantive due
process rights by revoking his parole for not participating in a
sex offender treatment program where the program refused to treat
Covington due to his refusal to discuss the offenses for which he
had been convicted; and (3) whether the parole board erred by
finding that Covington violated condition #21 of his parole.
The parole board may not revoke parole without affording
the parolee due process of law, guaranteed by the Fourteenth
Amendment to the United States Constitution and Article I, Section
7 of the Alaska Constitution. Paul v. State, 560 P.2d 754, 756
(Alaska 1977); see also Morrissey v. Brewer, 408 U.S. 471, 484
(1972). Absent a denial of a constitutional right, however, the
actions of a parole board are afforded only limited review in
court. See Newell v. State, 620 P.2d 680, 682-83 (Alaska 1980)
(stating courts žhave only limited power to review Parole Board
decisions, and cannot usurp the authority of the Boardž).
Covington first contends that the parole board violated
his procedural due process rights by holding a final revocation
hearing more than 120 days after his arrest. On December 9, 1994,
a Tennessee officer executed the parole warrant and arrested
Covington. Covington was held in custody by Tennessee officials
until March 24, 1995, when he was transferred to the control of the
Alaska State Troopers. The Alaska Parole Board held the final
revocation hearing on April 20, 1995. Covington asserts that the
parole board violated his procedural due process rights by holding
the final revocation hearing 131 days after Covingtonžs arrest, in
violation of the 120-day period provided by AS 33.16.220(f).
Alaska Statute 33.16.220(f) provides:
The board shall hold a final revocation
hearing no later than 120 days after a
paroleežs arrest[.]
The statute provides a sole exception to the 120-day period, when
criminal charges are pending against the parolee:
When the basis for the revocation proceeding
is a criminal charge, the parolee may request,
or the board upon its own motion may propose
that further proceedings on the revocation be
delayed. In making the determination to delay
further proceedings, the board shall consider
prejudice that may result to the parolee's and
the state's interests in the pending criminal
case and the parolee's decision to delay final
revocation proceedings. . . .
AS 33.16.220(g). There is no separate statutory provision that
provides an exception to the 120-day period when the parolee is
detained in a foreign jurisdiction for reasons other than pending
criminal charges. However, from the record it seems clear that the
delay in the revocation hearing was caused by Covington's efforts
to block extradition from Tennessee to Alaska. Covington was
transported back to Alaska on March 24, 1995. The parole board
held its final hearing on April 20, 1995. Since the delay in
transporting Covington back to Alaska is attributable to Covington,
we believe that this delay is chargeable to Covington and that his
parole revocation hearing was held well within the 120-day time
period. If we concluded otherwise, any Alaska parolee who
absconded or transferred out of state might avoid revocation by
simply fighting extradition to Alaska. (EN2)
We next turn to Covington's contention that the parole
board violated his substantive due process rights by revoking his
parole because he was not participating in a treatment program due
to the programžs refusal to admit Covington solely because he
refused to admit his past offenses.
This court in State v. Stores, 816 P.2d 206 (Alaska App.
1991), examined the principles and goals of parole:
Its purpose is to help individuals reintegrate
into society as constructive individuals as
soon as they are able, without being confined
for the full term of the sentence
imposed. . . . The enforcement leverage that
supports the parole conditions derives from
the authority to return the parolee to prison
to serve out the balance of his sentence if he
fails to abide by the rules.
Id. at 208-09 (quoting Morrissey v. Brewer, 408 U.S. 471, 477
(1972)). Thus, while a parolee is entitled to more rights than an
incarcerated prisoner, parole may be revoked if the parolee fails
to comply with his or her parole conditions. Id. at 209. As a
threshold matter, however, parole conditions must be constitu-
tional. The constitutionality of a parole condition is a question
of law to which this court applies its independent judgment. Dye
v. State, 650 P.2d 418, 420 n.5 (Alaska App. 1982); see Guin v. Ha,
591 P.2d 1281, 1284 n.6 (Alaska 1979).
Covington points out that he has consistently denied
committing the offense for which he was convicted. Because of this
he contends that no sex offender treatment program will accept him.
Covington argues that he did not commit a volitional act of non-
compliance of his parole conditions. Therefore, he asserts the
parole board's revocation of his parole due to the program's
refusal to treat him is a violation of his substantive due process
rights.
Covington urges this court to adopt the Washington Court
of Appealsž rationale in State v. Peterson, 847 P.2d 538 (Wash.
App. 1993). In Peterson, the defendant, a convicted rapist, was
released from incarceration and placed in a community placement
program. As a condition of community placement, he was required to
participate in crime-related treatment or counseling services as
directed by his corrections officer. Id. at 539. During screening
for the program that his corrections officer selected, the
defendant denied that he had a problem. The program declined to
accept him based upon this denial. The court determined that
treatment was not available to the defendant because the program
did not consider him amenable to treatment. The court held that
the defendant did not commit a volitional act of noncompliance and
therefore the state failed to show the defendant's noncompliance
with the terms of his parole.
The state argues that Covington's parole conditions
required him to actively participate in a sex offender treatment
program. The state contends that Covington's failure to enroll in
or complete a sex offender treatment program, coupled with the
nature of his offense, warrants the revocation of his parole.
This court recently decided a factually similar case in
Gyles v. State, 901 P.2d 1143 (Alaska App. 1995). In Gyles, the
parole board found that Gyles did not comply with a condition of
his parole that required him to participate in a sex offender
treatment program because he refused to answer any questions
concerning prior sexual misconduct, claiming that answering the
questions would violate his right against self-incrimination. The
parole board revoked Gyles's parole. The trial court found that
Gyles had no right to refuse to answer because Gyles had already
been convicted and therefore faced no threat of incrimination. Id.
at 1148. We concluded that Gyles had not shown any basis for
refusing to discuss the crimes for which he had already been
convicted. However, we concluded that Gyles had established a
sufficient basis for claiming the privilege as to crimes or
misconduct for which he had not previously been convicted. Id. at
1149-50. We observed that Gyles had not challenged the constitu-
tionality of the parole condition itself. Id. at 1150 n.10. In
the instant case, Covington raises the issue that Gyles did not:
can the parole board revoke parole due to a paroleežs failure to
obtain sex offender treatment where the failure to obtain treatment
is caused by the parolee's refusal to admit or discuss offenses
which he has consistently denied committing. Covington has not
claimed that his failure to answer any questions concerning his
prior conduct is based on the exercise of his right against self-
incrimination. Rather, Covington contends that it is impossible
for him to discuss his prior offenses because he did not commit
them. Therefore, he asserts that revoking parole because of the
treatment program's refusal to administer treatment is a violation
of his substantive due process rights.
Covington asks us to rule that his parole cannot be
revoked because his denial of guilt is genuine and his failure to
comply with his parole condition is a nonvolitional act. (EN3)
However, Covington's case provides no basis for concluding that his
refusal to acknowledge guilt is anything but the willful act it
seems to be.
Covington stands finally convicted of engaging in sexual
misconduct; the issue of his guilt was not open to relitigation
before the parole board. The board was thus entitled to rely on
the fact of Covington's conviction to conclude that he had in fact
engaged in sexual misconduct. Nothing in the record suggests that
Covington suffers from the type of deep-seated denial that might
make it psychologically impossible for him to recognize or admit
his misconduct. Absent some evidence to the contrary, the board
could properly draw the obvious and reasonable inference that
common sense suggests in these circumstances: that Covington's
continued refusal to acknowledge his guilt amounts to nothing more
than deliberate obstinacy ž that is, a willful failure to comply
with the requirement that he participate in treatment.
Covington's final contention is that the parole board's
decision to revoke his parole was not supported by sufficient
evidence. Factual determinations of the parole board are judi-
cially reviewable to determine whether the decision was supported
by substantial evidence. See Anchorage v. Coffey, 893 P.2d 722,
726 (Alaska 1995); Handley v. State, 838 P.2d 1231, 1233 (Alaska
1992). The parole board's exercise of its discretionary authority
is reviewed under the "reasonable basis" standard, to insure that
its determinations are supported by evidence in the record as a
whole and there is no abuse of discretion. See Lake and Peninsula
Borough v. Local Boundary Com'n, 885 P.2d 1059, 1062 (Alaska 1994);
Cook Inlet Pipe Line Co. v. Alaska Public Utilities Com'n, 836 P.2d
343, 348 (Alaska 1992).
The parole board found that Covington violated a
condition of his parole:
VIOLATION A: Since his release to the State
of Tennessee on November 7, 1991, Charles R.
Covington failed to enroll in or complete a
sex offender treatment program. This is a
violation of parole condition number twenty-
one. This finding is based on the evidence
and testimony presented at the hearing.
Based on the nature of your offense and the
fact that you failed to cooperate with sex
offender treatment providers, the Board voted
to revoke your parole.
Covington contends that the state did not meet its burden
of proving, by a preponderance of the evidence, that Covington
violated a condition of his parole. Covington argues that he
satisfied condition #21, which required him to "actively
participate" in a program, by merely applying to the Luton program.
The state contends that Covington's application to the program, but
refusal to discuss his offenses, does not constitute compliance
with the condition.
Based upon the record of this case, the parole board
could determine that Covington willfully refused to admit his prior
offenses in spite of his guilt of those offenses, and that this
action resulted in Covington's ineligibility for sexual offender
treatment. The board could determine that sexual offender
treatment was critical for Covington's rehabilitation and that his
failure to obtain that treatment was a violation of his parole
conditions and constituted a sufficient ground to revoke his
parole.
AFFIRMED.
ENDNOTES:
1. Former AS 11.15.134; former AS 11.41.410(a)(4)(B).
2. Covington does not offer any evidence that he was prejudiced
by the delay in the parole revocation hearing. The state's
position is that in the absence of prejudice caused by a delay in
the hearing, the only remedy which was available to Covington was
to compel compliance with the act by requiring the parole board to
hold a revocation hearing.
Alaska courts have not addressed whether a parolee must
establish that he was prejudiced by the parole board's untimeliness
in holding a revocation hearing in order to obtain relief.
Legislative history indicates that absent prejudice or patently
unreasonable delay, reinstatement to parole is not the appropriate
remedy for a delayed parole hearing.
If the procedural safeguard denied a parolee
in a revocation proceeding is the untimeliness
of the hearing, the exceptional remedy applied
is the reinstatement of the parolee to parole.
If the board was to deny a timely hearing
under the statute, the resultant remedy should
be proportionate to the violation. The
purpose underlying the requirement for a
timely hearing is to enable the alleged
violator to respond to the alleged violation
while contrary evidence may still be available
and the issue is fresh in everyone's mind. A
short delay in the revocation proceeding would
result in little prejudice to the parolee, so
release from incarceration pending the hearing
is an appropriate remedy. However, where the
delay is significant and prejudice to the
parolee is shown, reinstatement to parole
status may be appropriate. This is the excep-
tional situation.
Commentary to Alaska Parole Act, Supp. No. 42, 1985 Alaska House
Journal at p. 20-21 (April 4, 1985) (citation omitted).
Other jurisdictions have addressed whether a parolee's right
to due process was violated by a delay in the parole revocation
hearing. These courts have held that a due process violation
occurs only when the delay in holding the revocation hearing is
unreasonable or prejudicial. See Meador v. Knowles, 990 F.2d 503,
506 (9th Cir. 1993) (stating that parolees must demonstrate
prejudice to their ability to present evidence at the final
hearing); Camacho v. White, 918 F.2d 74, 79 (9th Cir. 1990); Vargas
v. U.S. Parole Com'n, 865 F.2d 191, 194 (9th Cir. 1988). Absent
prejudice or unreasonable delay, other jurisdictions have held that
the proper remedy for a delay in holding a parole revocation
hearing is for the court to compel the parole commission to hold a
revocation hearing. Where the revocation hearing has been held, no
further remedy is available to the parolee. See Camacho v. White,
918 F.2d at 79-80; Heath v. U.S. Parole Com'n, 788 F.2d 85, 89-90
(2nd Cir. 1986); Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir.
1983).
3. The majority of jurisdictions which have considered the
question appear to have concluded that a defendant's probation can
be revoked where a defendant is terminated from a treatment program
for a refusal to discuss the offenses for which he has previously
been convicted. See, e.g., State v. Woveris, 635 A.2d 454 (N.H.
1993); State v. Gleason, 576 A.2d 1246 (Vt. 1990); State v. Peck,
547 A.2d 1329 (Vt. 1988); State v. Bennet, 666 P.2d 390 (Wash. App.
1983).
