Webb v. Alaska Dep't of Corrections (8/28/98) ap-1601
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY A. WEBB, )
) Court of Appeals No. A-6770
Appellant, ) Trial Court No. 3KN-97-425 Civ
)
v. )
) O P I N I O N
ALASKA DEPARTMENT OF )
CORRECTIONS, )
)
Appellee. ) [No. 1601 - August 28, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Kenai, Jonathan H. Link, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for Appellant.
Timothy W. Terrell, Assistant Attorney General, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
This case requires us to decide whether the Alaska Board
of Parole can anticipatorily revoke the scheduled parole release of
prisoners who, while still incarcerated, engage in behavior that
would warrant revocation of their parole. This court has already
construed the probation statutes to authorize sentencing judges to
anticipatorily revoke a defendant's scheduled probation in similar
circumstances. We now construe the parole statutes in a like
manner, and we thus hold that the Parole Board can anticipatorily
revoke a scheduled parole.
In 1991, Jerry A. Webb was convicted of first-degree
sexual abuse of a minor and was sentenced to serve 8 years in
prison. The sentencing judge ordered Webb to complete a treatment
program for sex offenders while he was incarcerated (if such a
program was offered at the institution to which Webb was sent). [Fn.
1]
Webb was incarcerated at Hiland Mountain Correctional
Center, a facility that offers sex offender treatment. Webb
participated in this treatment program for approximately a year and
a half (from August 2, 1991 until February 22, 1993), but then he
withdrew from the program against the advice of his treatment team.
In July 1994, Webb applied for re-entry into the program, but the
treatment team denied his request.
Webb's failure to complete sex offender treatment prompted
the Department of Corrections to seek revocation of Webb's good time
credit. Under AS 33.20, most prisoners receive credit against their
sentences for good behavior; unless reduced for bad behavior, the
credit equals one-third of the prisoner's sentence. [Fn. 2] When
a prisoner's good time credit equals the time remaining in their
sentence, the prisoner is automatically released on parole,
supervised by the Alaska Board of Parole. [Fn. 3] (Such parole is
termed "mandatory" parole, to distinguish it from parole granted at
the discretion of the Parole Board under AS 33.16.090 150.)
Given Webb's normal accrual of good time, he would have
been released on mandatory parole on March 2, 1996. But in the
autumn of 1994, the Department of Corrections initiated proceedings
in front of the Alaska Board of Parole to revoke Webb's accumulated
good time credit; the reason was that Webb had failed to complete
the sex offender treatment ordered by the sentencing judge. On
January 24, 1995, the Parole Board held a hearing into this
allegation; Webb declined to appear at this hearing.
At the conclusion of the hearing, the Parole Board found
that Webb had violated the provision of his sentence requiring him
to complete sex offender treatment. Although the Department of
Corrections' petition had asked for revocation of Webb's good time
credit, the Parole Board did not explicitly mention good time credit
in its order. Instead, the Board declared that it had decided to
anticipatorily revoke Webb's scheduled parole.
Webb later petitioned the superior court for a writ of
habeas corpus. He argued that the Parole Board lacked the authority
to revoke his parole before he actually commenced his mandatory
parole release. The superior court denied Webb's petition, and Webb
now appeals.
Under AS 33.16.220(a)(2), the Parole Board is authorized
to revoke a person's parole if the person "has violated an order of
the court [under AS 12.55.015(a)(10)] to participate in or comply
with the treatment plan of a rehabilitation program". In the
present appeal, Webb concedes that he failed to comply with the
sentencing court's order to complete sex offender treatment. (Webb
does not argue that the Board acted prematurely in the sense that
Webb still had more time in which to potentially re-enter and
complete the sex offender treatment program.) Webb further concedes
that, if the Parole Board had acted on or after March 2, 1996 that
is, after Webb was released on his scheduled mandatory parole then
the Board's action would have been proper. But Webb argues that the
Parole Board had no authority to revoke his parole until Webb
formally became a "parolee" that is, until Webb was actually
released from prison on mandatory parole.
This court has repeatedly held that a sentencing court has
the authority to revoke the probation of defendants who have not yet
formally begun their probation either because they have yet to
begin serving their prison sentence, or because they are in prison
and have not yet been released on probation. [Fn. 4] We now hold
that the parole statutes give the Parole Board a similar power of
anticipatory revocation.
Under Webb's proposed construction of the parole statutes,
even when a prisoner engaged in conduct that clearly justified
revocation of his or her parole, the Parole Board would have to
delay final action until the prisoner was physically released on
parole. Parole officers, having probable cause to believe that
parole had been violated, would stand at the prison gates, waiting
for the prisoner to emerge on parole, so that the prisoner could
immediately be grabbed and forced back through the gates to a
resumption of imprisonment. [Fn. 5] Webb fails to offer any
convincing reason why we should interpret the parole statutes to
require such a strange and pointless ceremony.
For these reasons, we hold that the Parole Board acted
lawfully when it anticipatorily revoked Webb's mandatory parole, and
we therefore AFFIRM the judgement of the superior court.
FOOTNOTES
Footnote 1:
See AS 12.55.015(a)(10), which authorizes a sentencing court
to "order the defendant, while incarcerated, to participate in or
comply with the treatment plan of a rehabilitation program that is
related to the defendant's offense or to the defendant's rehabili-
tation if the program is made available to the defendant by the
Department of Corrections".
Footnote 2:
AS 33.20.010(a).
Footnote 3:
AS 33.20.040(a), (c).
Footnote 4:
See Enriquez v. State, 781 P.2d 578, 579-580 n.1 (Alaska App.
1989); Benboe v. State, 738 P.2d 356, 359-360 (Alaska App. 1987);
Gant v. State, 654 P.2d 1325, 1326-27 (Alaska App. 1982).
Footnote 5:
AS 33.16.240(a) authorizes the warrantless arrest of a parolee
for violation of parole.
