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Hill v State (4/27/01) ap-1735
Hill v State (4/27/01) ap-1735
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
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
RAYMOND E. HILL, )
) Court of Appeals No. A-7522
Appellant, ) Trial Court No. 1KE-99-0308 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1735 April 27, 2001]
)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Michael A. Thompson, Judge.
Appearances: G. Blair McCune, Deputy Public
Defender, Barbara K. Brink, Public Defender, and Raymond E. Hill,
in propria persona, Anchorage, for Appellant. Timothy W. Terrell,
Assistant Attorney General, Criminal Division Central Office,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1993, Raymond E. Hill was convicted of robbery and
sentenced to serve 7 years in prison. In early 1998, Hill's actual
time in prison, combined with the "good time" credit that had been
awarded to him under AS 33.20.010, totaled 7 years. Hill was
therefore released on mandatory parole. See AS 33.20.030 040(a).
The Parole Board established various conditions to govern
Hill's parole, but Hill refused to sign these conditions because he
believed that mandatory parole was illegal. (He nevertheless was
released on mandatory parole.) A few weeks later, Hill launched the
first in a series of court cases in which he contended that a
prisoner who is released because of good time credit is entitled to
an unconditional discharge. Hill presents that same argument in
this appeal.
Hill raises several constitutional and statutory
challenges to mandatory parole. For the reasons explained in this
opinion, we conclude that mandatory parole is lawful, that the
Parole Board has the authority to set conditions governing the
conduct of prisoners released to mandatory parole, and that a
parolee who violates those conditions can lawfully be sent back to
prison to serve the remainder of their sentence i.e., the number
of days that the parolee was excused from serving earlier because
of good time credit.
Hill's contention that, under the Alaska statutes, good
time credit constitutes a complete forgiveness of a portion of a
prisoner's sentence
Under AS 33.20.010, all prisoners are entitled to a good
time credit equal to one-third of their sentence if they abide by
the rules of their correctional facility. This credit can be
forfeited (in whole or part) for misbehavior [Fn. 1], and forfeited
credit can be restored for renewed good behavior [Fn. 2]. Under
AS 33.20.030, when a prisoner's actual time in prison, combined with
their good time credit, equals the number of days that the prisoner
was sentenced to serve, the prisoner shall be released.
However, AS 33.20.040(a) declares that many of the
prisoners who are released from prison because of good time credit
will remain under the supervision of the Parole Board. Under this
statute, prisoners whose composite sentence is 2 years or less are
unconditionally discharged. By contrast, prisoners whose composite
sentence exceeds 2 years are "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". Thus, for prisoners sentenced to serve more than 2
years, good time credit does not constitute a complete forgiveness
of jail time. Rather, good time credit converts time that would
otherwise be spent in prison to time that will be spent on parole.
Hill argues that the rule established in AS 33.20.040(a)
contradicts what is said in AS 33.20.010 and AS 33.20.030.
Hill notes that AS 33.20.010 declares that prisoners are
"entitled to a deduction of one-third of [their] term of
imprisonment" for good behavior. Hill argues that, once good time
credit is deducted from a sentence, those days can not be added back
to the sentence. He notes that AS 33.20.030 speaks of a prisoner's
"release" because of accumulated good time credit, and he further
notes that the title of this section is "Discharge". From these
provisions, Hill concludes that the "release" granted by section 030
is a complete discharge from state supervision an unconditional
release.
Hill contends that AS 33.20.040 contradicts these two
sections because it allows a prisoner's good time credit days to be
added back to the sentence. As explained above, AS 33.20.040 states
that prisoners whose composite sentence exceeds 2 years are not
released unconditionally; rather, they are released on mandatory
parole. If a prisoner released on mandatory parole is later found
to have violated the conditions of their parole, the prisoner can
be sent back to prison to serve some or all of the days that were
previously deducted on account of good time credit. [Fn. 3] Hill
argues that this result is "hopelessly in conflict" with AS 33.20.010
and 33.20.030.
Conceivably, these two sections might be interpreted in
the way Hill suggests if they were simply read by themselves. But
when the legislature has enacted several statutes that all deal with
one related subject matter, this court is obliged to read all of the
statutes together and construe them in harmony with each other, if
possible. [Fn. 4]
In this case, it is possible to construe the statutes
harmoniously. For prisoners who receive a composite term of 2 years
or less, good time credit constitutes a true reduction of their
sentence. When the combination of their actual time served and
their good time credit equals their sentence, they are released
unconditionally. But for prisoners who receive a composite term
exceeding 2 years, good time credit operates to convert days in jail
to days on parole. Good time credit still speeds their release from
prison, but these prisoners are released to mandatory parole under
the supervision of the Parole Board. The prisoner's good time
credit becomes a sort of suspended sentence that can be re-imposed
in whole or in part by the Parole Board if the parolee violates the
conditions of their release.
Hill's contention that the Parole Board has no authority
to revoke a parolee's good time credit and require the parolee to
serve those days in prison
Hill also argues that even if mandatory parole is lawful,
the Parole Board has no authority to take away a prisoner's good
time credit once this credit has "vested" that is, once the
Department of Corrections has officially recognized the prisoner's
good time credit by releasing the prisoner. Hill notes that when
a prisoner is released because of good time credit, AS 33.20.030
requires the warden or superintendent of the prison to affix or
append a "certificate of deduction" to the prisoner's commitment.
(The "commitment" is the document that authorizes the Department of
Corrections to hold the prisoner. See AS 33.30.051.)
Hill contends that once a prisoner's total good time
credit is memorialized in this "certificate of deduction", the Parole
Board can not revoke or reduce it. Hill acknowledges that AS
33.20.050 authorizes the forfeiture of a prisoner's good time, but
only for an offense committed "during the [prisoner's] term of
imprisonment". Thus, Hill concludes, the Parole Board has no
authority to revoke a prisoner's good time credit once the prisoner
is released.
Again, we have a legal duty to read all of the related
statutes together and see if they can reasonably be construed in
harmony with each other. The whole concept of mandatory parole
makes no sense unless the parolee faces a penalty return to prison
for violating the conditions of parole. Just as a sentence of
probation requires that some portion of the defendant's imprisonment
or fine be suspended [Fn. 5], so parole requires the conditional
forgiveness of jail time and the possibility that this jail time
might be re-imposed.
It is true, as Hill points out, that AS 33.20.150 only
authorizes forfeiture of a prisoner's good time for an offense
committed in prison. But that statute deals with the Department of
Corrections' authority to take away a prisoner's good time credit
before release. The issue in Hill's case is different: the Parole
Board's authority to take away a prisoner's good time credit after
release i.e., when the prisoner has become a parolee.
That authority is found in AS 33.16.220(i), a statute
dealing with parole revocation. This statute authorizes the Parole
Board to "revoke all or a portion of the parole" if the parolee is
found to have committed a new offense or to have violated the
conditions of parole. As explained in 22 AAC 20.275, this means
that the Parole Board is authorized to revoke all or a portion of
the parolee's good time credit:
Effect of Revocation of Mandatory Parole.
A prisoner whose mandatory parole is revoked is required to serve
a term equal to the difference between the date of [the prisoner's]
release on mandatory parole and the [prisoner's] maximum release
date, unless the board revokes only a portion of parole[.]
The Parole Board's authority to revoke good time credit
does not conflict with the Department of Corrections' duty under AS
33.20.030 to issue a "certificate of deduction" when a prisoner is
released on mandatory parole. As explained above, this statute
requires the warden or superintendent to affix the certificate of
deduction to the prisoner's commitment i.e., to the written
document that authorizes (indeed, commands) the Department of
Corrections to hold the prisoner for the length of time specified
by the sentencing court. Because the commitment commands the
Department of Corrections to hold the prisoner, it makes sense for
the legislature to require prison officials to make a written
amendment to that document when, because of good time credit, the
prisoner is released from custody before the prisoner has served the
whole term of imprisonment specified in the commitment.
Interpreting the statute in this light, the legislature
did not intend for the certificate of deduction to create a "vested
interest" in good time credit. Rather, the certificate serves to
formally explain or justify why prison officials no longer have
custody of the prisoner.
Hill's contention that the revocation of a parolee's good
time credit constitutes an illegal increase in the parolee's
sentence
Hill argues that even if our statutes authorize the Parole
Board to revoke a parolee's good time credit, and to order the
parolee to serve those days in prison, this statutory authority
violates the double jeopardy clause of the constitution because the
Board's action will inevitably constitute an illegal increase in the
prisoner's sentence. According to Hill, the increase occurs
because, through its action, the Parole Board subjects a prisoner
to state supervision for a longer period than was contemplated by
the sentencing court.
Hill's argument is this: When, as in Hill's case, a
defendant's sentence is partially suspended, the defendant will
serve a term of imprisonment and then will be released on probation.
Generally, in such cases, the superior court's judgement will
specify that the defendant's probation commences upon the
defendant's release from prison and will run for a fixed amount of
time. For example, in Hill's case, the superior court's judgement
states that Hill's probation "expires 2 years after [Hill's] release
from incarceration."
As explained above, Hill was released from incarceration
(on mandatory parole) in early 1998. Under AS 33.20.040(c), a
prisoner's probation runs concurrently with their mandatory parole.
Thus, if Hill had successfully completed his parole, he would also
have successfully served his probation, and he would have been
unconditionally discharged from state supervision sometime in 2000.
But Hill's parole was revoked; he was sent back to prison to serve
out the days for which he earlier received good time credit. As it
stands now, Hill will not be unconditionally released from state
supervision until sometime in 2002.
Hill contends that this constitutes an illegal increase
in his sentence. He also contends that the only way to cure this
illegality (assuming that the Parole Board has the authority to
revoke his mandatory parole in the first place) is to give him
credit against his sentence for the time he spent on parole, so that
his total time under state supervision remains unchanged.
With regard to Hill's argument that he must be given
credit against his sentence for the time he spent on parole, we have
already rejected this argument in State v. Merry. [Fn. 6] Like
Hill, the defendant in Merry contended that unless he received
credit for time spent on parole, the Parole Board's action of
sending him back to serve all of his remaining time (i.e., all the
days that he would have spent in prison but for his good time
credit) effectively constituted an increase in his sentence, in
violation of the double jeopardy clause. We rejected this argument.
We noted that in the analogous situation of probation revocation,
a sentencing court does not violate the double jeopardy clause when
it sends a defendant back to prison to serve a previously suspended
term of imprisonment because "the defendant is on notice [from the
outset] of [the] statutory provisions which restrict his liberty if
his probation is revoked lawfully." [Fn. 7] Thus, a probationer is
not entitled to credit against their sentence for the time spent on
probation before it was revoked. [Fn. 8] Likewise, we concluded,
a parolee is not entitled to credit against their sentence for the
time spent on parole. [Fn. 9]
The reason why parole revocation does not violate the
guarantee against double jeopardy (even if it extends the parolee's
total time under state supervision) was explained more fully in
Reyes v. State. [Fn. 10] In Reyes, we addressed the same problem
in the context of probation revocation. We explained:
AS 12.55.090(b) declares that the sentencing
court "may revoke or modify any condition of probation, or may change
the period of probation". It practically goes without saying
although the United States Supreme Court expressly said it in United
States v. DiFrancesco [449 U.S. 117, 137; 101 S.Ct. 426, 437; 66
L.Ed.2d 328 (1980)] that the double jeopardy clause is not
violated when a sentencing court revokes a defendant's probation and
imposes a previously-suspended prison term. In such circumstances,
the defendant's sentence has not been "increased" because, from the
beginning, it was understood that the defendant's imprisonment would
remain suspended only if the defendant abided by the conditions of
probation.
DiFrancesco held that, for purposes of the
federal double jeopardy clause, a criminal sentence does not have
the same "finality" as a verdict of acquittal. [See id., 449 U.S.
at 137, 101 S.Ct. at 438.] Thus, while verdicts of acquittal are
virtually immune from judicial re-examination, legislatures may
grant courts significant power to re-examine criminal sentences
and modify them to the defendant's detriment without defeating
the defendant's "legitimate expectations" of finality. Since the
DiFrancesco decision, most courts have held (either explicitly or
implicitly) that when a defendant challenges a modification of their
sentence on double jeopardy grounds, the double jeopardy issue must
be resolved by examining the applicable sentencing statutes and
deciding whether, from the beginning, the court was authorized to
modify the sentence in that way.
Reyes, 978 P.2d at 639 (some footnotes omitted, some placed in
brackets).
Revocation of Hill's parole may result in his having to
spend more total time under state supervision, but this possibility
is inherent in any criminal sentence that exceeds 2 years to serve
by virtue of the statutes that create mandatory parole and that
authorize the Parole Board to revoke it. Under our decision in
Reyes and the United States Supreme Court's decision in United
States v. DiFrancesco [Fn. 11], this statutory framework does not
violate the double jeopardy clause.
For similar reasons, we reject Hill's contention that his
continued imprisonment violates the Thirteenth Amendment to the
United States Constitution.
Hill's contention that the Parole Board has no authority
to place conditions on his mandatory parole, and no authority to
revoke his parole for violation of these conditions
Relying on Justice Boochever's opinion in Morton v.
Hammond [Fn. 12], Hill argues that the Parole Board has no authority
to place conditions on mandatory parole release and thus no
authority to revoke parole if a parolee fails to abide by these
conditions. Hill acknowledges that Justice Boochever's analysis of
the parole statutes did not command a majority of the court in
Morton, and he further acknowledges that this court explicitly
rejected Justice Boochever's statutory analysis in Braham v. Beirne.
[Fn. 13] Nevertheless, Hill contends that Justice Boochever was
right and that our decision in Braham was wrongly decided.
This argument is moot. The issue that divided the supreme
court in Morton was whether the Parole Board had the authority to
place special conditions on prisoners who were released on mandatory
parole (and thus the authority to revoke a prisoner's parole for
failure to abide by these special conditions). It was on this issue
the Parole Board's authority to place special conditions on
mandatory parole that Justice Boochever declared the parole
statutes to be "hopelessly in conflict". He nevertheless voted to
affirm the revocation of Morton's parole because he concluded that,
even if the Parole Board had no authority to impose special
conditions, the parole statutes clearly authorized the Board to
revoke a person's parole if that person committed a criminal offense
while on parole release. These are the concluding words of his
opinion:
Since it appears from the sketchy record
presented to us that Morton's [mandatory] parole status was revoked
because of [his] violation of state laws, we conclude that [the]
revocation was not prohibited by AS 33.15.190.
The judgment of the superior court is
AFFIRMED.
Morton, 604 P.2d at 4.
Hill has likewise presented us with only a "sketchy
record". However, it appears from that record that Hill's parole
was revoked because he committed one or more new criminal offenses.
Thus, even under Justice Boochever's analysis of the mandatory
parole statutes, the Parole Board had the authority to revoke Hill's
parole.
We recognize that the parole statutes have been amended
since the supreme court's decision in Morton. However, AS
33.16.150(a)(1) continues to require all "prisoner[s] released on
... mandatory parole [to] obey all state, federal, or local laws and
ordinances, and any court orders applicable to the parolee". It
therefore follows that Hill's attack on our decision in Braham v.
Beirne is moot.
In the alternative, assuming that Hill's parole was
revoked for violation of special conditions imposed by the Parole
Board, we reaffirm our decision in Braham v. Beirne that the Parole
Board has the authority to impose special conditions on prisoners
who are released on mandatory parole, and that the Parole Board has
the authority to revoke a person's parole for violation of these
conditions.
The current version of AS 33.20.040(a) declares that a
prisoner released on mandatory parole remains "[in] the custody and
jurisdiction of the parole board under AS 33.16". One of the
provisions of Title 33, chapter 16 AS 33.16.060(a)(3) authorizes
the Parole Board to "impose parole conditions on all prisoners
released under discretionary or mandatory parole". Another provision
of chapter 16 AS 33.16.150(a) lists a series of "standard"
conditions that apply to all parolees. Yet another provision of
chapter 16 AS 33.16.150(b) authorizes the Parole Board to impose
one or more additional parole conditions from among the list
specified in that statute.
(The Parole Board's powers in this area are reiterated in
the Administrative Code. Under 22 AAC 20.270(a), the Parole Board
is obliged to set conditions for all prisoners released to mandatory
parole, and the provisions of 22 AAC 20.195 225 are expressly made
applicable to mandatory parolees. Among those provisions are 22 AAC
20.200 ("Standard Conditions of Parole") and 22 AAC 20.205
("Supplemental Condition[s] of Parole").)
We therefore reject Hill's contention that the parole
statutes are "hopelessly in conflict" on this issue, and we reaffirm
our decision in Braham that the Parole Board may place and enforce
conditions on mandatory parole.
Conclusion
For the reasons explained here, we conclude that mandatory
parole is lawful, that the Parole Board has the authority to set
conditions governing the conduct of prisoners released to mandatory
parole, and that a parolee who violates those conditions can
lawfully be sent back to prison to serve the remainder of their
sentence i.e., the number of days that the parolee was earlier
excused from serving because of good time credit. Accordingly, the
judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See AS 33.20.050.
Footnote 2:
See AS 33.20.060.
Footnote 3:
See AS 33.16.220(i). This statute reads: "If, after the final
revocation hearing, the [parole] board finds that the parolee has
violated a condition of parole imposed under AS 33.16.150(a), (b),
or (f), or a law or ordinance, the board may revoke all or a portion
of the parole, or change any condition of parole."
Footnote 4:
See Lake v. Construction Machinery, Inc., 787 P.2d 1027, 1030
(Alaska 1990); Hafling v. Inlandboatmen's Union of the Pacific, 585
P.2d 870, 872 (Alaska 1978); Hotel, Motel, Restaurant, Construction
Camp Employees & Bartenders Union, Local 879 v. Thomas, 551 P.2d
942, 944 (Alaska 1976); Millman v. State, 841 P.2d 190, 194 (Alaska
App. 1992).
Footnote 5:
See Putnam v. State, 930 P.2d 1290, 1291-92 (Alaska App. 1996);
Kelly v. State, 842 P.2d 612, 613 (Alaska App. 1992).
Footnote 6:
784 P.2d 253 (Alaska App. 1989).
Footnote 7:
Id. at 256 n.2.
Footnote 8:
See Paul v. State, 560 P.2d 754, 758 (Alaska 1977). See also
Gage v. State, 702 P.2d 646, 647-48 (Alaska App. 1985) (holding that
when a petition to revoke a defendant's probation is filed, and the
sentencing court subsequently finds that defendant committed the
alleged violation of probation, the defendant is not entitled "to
claim credit for time served on probation during the period between
the filing of the petition and its ultimate adjudication").
Footnote 9:
Merry, 784 P.2d at 256.
Footnote 10:
978 P.2d 635 (Alaska App. 1999).
Footnote 11:
United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct 426, 66
L.Ed.2d 328 (1980).
Footnote 12:
604 P.2d 1 (Alaska 1979).
Footnote 13:
675 P.2d 1297 (Alaska App. 1984).
