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State v. Couch (11/19/99) ap-1654

                              NOTICE
     The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter.  Readers are
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              303 K Street, Anchorage, Alaska  99501
                       Fax:  (907) 264-0878
        E-mail:  corrections@appellate.courts.state.ak.us


          IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,              )
                              )          Court of Appeals No. A-7069
                 Appellant,   )        Trial Court No. 4FA-S97-427CR
                              )
                  v.          )              O P I N I O N
                              )
JOHN M. COUCH,                )
                              )
                 Appellee.    )       [No. 1654 - November 19, 1999]
                              )

          Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mark I. Wood, Judge Pro Tempore.

          Appearances:  Timothy W. Terrell, Assistant
Attorney General, Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Appellant.  No appearance for Appellee.

          Before:  Coats, Chief Judge, and Mannheimer and
Stewart, Judges. 

          COATS,  Judge.

          John M. Couch was incarcerated on the felony offenses of
driving while intoxicated and failure to remain and render
assistance at an injury accident. [Fn. 1]  He applied  to the
superior court for a temporary release so that he could visit his
grandfather who was dying of cancer in Idaho.  Couch relied on
Criminal Rule 35(b)(1) which provides that "[t]he court may modify
or reduce a sentence within 180 days of the distribution of the
written judgment . . . ."   Although Couch was beyond the 180-day
period set forth in the rule, he argued that the superior court had
the authority to relax the time limitation under Criminal Rule 53.
[Fn. 2]   Superior Court Judge Pro Tempore Mark I. Wood granted the
temporary release.  The state appeals from this decision, arguing
that the superior court abused its discretion in granting this
release.   The state argues that the authority to grant prisoners
such as Couch a temporary release lies with the Department of
Corrections rather than the court.  We agree with the state and
conclude that the superior court abused its discretion in releasing
Couch.
          The state concedes that the issue of whether Couch should
be released is moot.  Couch completed his release and returned to
confinement.  Generally, we do not resolve cases which are moot. 
But the state urges us to find that this case falls within an
exception to the rule that we do not decide moot cases, "that this
case presents an important question of public interest that is
capable of repetition and might repeatedly circumvent review . . .
. " [Fn. 3]   In its brief, the state has set out several examples
where trial courts have granted temporary releases similar to the
temporary release which the superior court granted to Couch.  The
state makes a persuasive case that this practice is ongoing and will
otherwise evade appellate review.  We conclude that it is
appropriate for us to address the issue raised despite its technical
mootness. [Fn. 4]   
          The reasoning in two cases, State v. Tinsley [Fn. 5] and
State v. Ambrose [Fn. 6] leads us to the conclusion that the court
did not have the authority to grant Couch's temporary release from
confinement.  In Tinsley, we discussed a former version of Criminal
Rule 35(b). [Fn. 7]   In Tinsley, the sentencing judge originally
imposed a sentence of three years of imprisonment with one year
suspended for a conviction of first-degree weapons misconduct. [Fn.
8]  After serving his sentence, and almost seven years after his
original sentencing, Tinsley filed a motion to modify his sentence
under the former version of Criminal Rule 35(b). [Fn. 9]  Tinsley
argued that the superior court should modify his sentence because
he had achieved rehabilitation. [Fn. 10]   He argued that the time
limit in the rule was too short for him to demonstrate
rehabilitation and asked the superior court to relax the time limit
under Criminal Rule 53. [Fn. 11]  The superior court judge accepted
Tinsley's argument and modified Tinsley's sentence to a suspended
imposition of sentence and, based upon Tinsley's successful service
of his probation, set Tinsley's conviction aside. [Fn. 12]  The
state appealed to this court and we reversed the superior court's
decision, concluding that the  superior court judge "abused his
discretion when he relaxed the time limit of Criminal Rule 
[35(b)]." [Fn. 13] 
          In Tinsley, we discussed the purpose of Criminal Rule
35(b).  We stated that the rule was designed to give a trial judge
a specific limited time to modify a sentence:
          The rule . . . allows a sentencing judge a
specific period of time to reconsider and potentially reduce a
criminal sentence.   This authority can be exercised even when there
is no reason to reduce the sentence other than the judge's decision
to reconsider and show mercy.  But the time limit in Rule [35(b)]
exists for a reason.  Even after the promulgation of Criminal Rule
[35(b)], the general rule under Alaska law is that a sentencing
court does not have the power to retain jurisdiction over a criminal
case in order to modify the defendant's sentence in the future. [Fn.
14]

          In Tinsley, we concluded that using Criminal Rule 53 to
relax the former version of Criminal Rule 35(b)'s time limit would
undermine the purpose of the rule. [Fn. 15]  We concluded that it
was inappropriate to allow a trial judge "nearly boundless
continuing authority to reduce a defendant's sentence   or, as in
Tinsley's case, to retroactively suspend imposition of sentence and
then set aside the defendant's conviction   upon a showing that the
defendant has been rehabilitated." [Fn. 16]  
          In State v. Ambrose, [Fn. 17] a prisoner applied to the
court for a temporary release so that he could attend a funeral
potlatch for his brother and sister.  He applied to the court under
a former court rule which provided that the court "may modify or
reduce a sentence at any time during a term of imprisonment if it
finds that conditions or circumstances have changed since the
original sentencing hearing such that the purposes of the original
sentence are not being fulfilled." [Fn. 18]   The court ordered
Ambrose released to attend the funeral potlatch. [Fn. 19]  The state
appealed from this order and we reversed. [Fn. 20]  We concluded
that the Department of Corrections, not the courts, had the
authority to release prisoners for periods of short duration on
furloughs to meet the prisoners' needs and well-being:
               We do not mean to imply any insensitivity
to or disrespect for Ambrose's religious beliefs, and we recognize 
that the opportunity to attend the funeral potlatch was undoubtedly
a matter of tremendous personal importance to Ambrose. 
Nevertheless, as the state correctly observes, the day-to-day
management of prisoners is properly within the purview of the
Department of Corrections, and it is generally the Department's
responsibility to assure that a prisoner's needs and well-being are
provided for.  In this regard, the Department of Corrections has the
authority to release prisoners on furloughs of short duration.  The
Department has adopted regulations to implement its statutory
authority.  Ambrose has asserted no legal challenge to the adequacy
of these regulations.  Criminal Rule 35(b) does not authorize the
sentencing court to invade the authority that is properly vested in
the executive branch of government.  This is precisely what the
superior court appears to have done in the present case. [Fn. 21]

We reversed the superior court's order granting Ambrose's temporary
release.  
          Our decisions in Tinsley and Ambrose foreshadow our
conclusion in Couch's case.  Criminal Rule 35(b) is designed to
allow a sentencing judge to reconsider and potentially reduce a
criminal sentence for a limited period of time.   It is not designed
to work in conjunction with Criminal Rule 53 to allow a sentencing
judge an unlimited period of time to modify a sentence.  It is also
not designed to allow a trial judge to grant a furlough to a
prisoner.  Such furloughs are within the authority of the Department
of Corrections, not the courts.  We accordingly conclude that Judge
Wood erred in using Criminal Rule 35(b) to grant Couch's furlough.
          The order entered by the superior court is REVERSED.





                            FOOTNOTES


Footnote 1:

     AS 28.35.030(a)(1), AS 28.35.030(n), AS 28.35.060(a) and (c). 


Footnote 2:

     Criminal Rule 53 provides:   

               These rules are designed to
facilitate business and advance justice.  They may be relaxed or
dispensed with by the court in any case where it shall be manifest
to the court that a strict adherence to them will work injustice.




Footnote 3:

     State v. Ambrose, 758 P.2d 639, 641 n.2 (Alaska App. 1988).


Footnote 4:

     Id.


Footnote 5:

     928 P.2d 1220 (Alaska App. 1996).


Footnote 6:

     758 P.2d 639 (Alaska App. 1988).


Footnote 7:

     928 P.2d at 1222 n.1 (at that time, current Criminal Rule 35(b)
was designated as Criminal Rule 35(a)).  In the text of this case,
when State v. Tinsley refers to the former rule, we will change the
language in Tinsley to refer to Criminal Rule 35(b). 


Footnote 8:

     Id. at 1221 (the defendant was convicted under former rule AS
11.61.200(a)).


Footnote 9:

     Id. at 1222.


Footnote 10:

     Id. at 1221-22.


Footnote 11:

     Id. at 1222 (the time limit under the former rule was 120
days).  


Footnote 12:

     Id.


Footnote 13:

     Id. at 1224.


Footnote 14:

     Id. at 1223 (citations omitted).


Footnote 15:

     Id. 


Footnote 16:

     Id.


Footnote 17:

     758 P.2d 639 (Alaska App. 1988).


Footnote 18:

     Id. at 641.  At the time Ambrose applied for temporary release,
this rule was designated as Criminal Rule 35(b).


Footnote 19:

     Id. 


Footnote 20:

     Id. at 639.


Footnote 21:

     Id. at 643 (citations omitted).