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State v. Fortuny (03/08/2002) ap-1792
State v. Fortuny (03/08/2002) ap-1792
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
STATE OF ALASKA, )
) Court of Appeals No.
A-7801
Appellant, )
Trial Court No. 3AN-00-826 Cr
)
v. )
)
BRENT FORTUNY, )
)
Appellee. )
)
BRENT FORTUNY, )
) Court of Appeals No.
A-7811
Cross-Appellant, )
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Cross-Appellee. ) [No.
1792 March 8, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Kim S. Stone, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for the State of Alaska. Darryl L. Thompson,
Anchorage, for Brent Fortuny.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Brent Fortuny drove while he was intoxicated and
injured someone else. He ultimately pleaded no contest to third-
degree assault (a class C felony) and misdemeanor driving while
intoxicated.1 While awaiting sentencing, Fortuny spent four
months at Genesis House, a residential alcoholism treatment
facility. The question is whether Fortuny should receive credit
against his sentence for some or all of the time he resided at
Genesis House.
For the past thirty-five years, Alaska law has granted
defendants credit against their sentence for time spent in
custody pending trial, sentencing, or appeal, if the detention
was in connection with the offense for which sentence was
imposed.2 Almost twenty years ago, in Nygren v. State, 658 P.2d
141 (Alaska App. 1983), this court expanded a defendants right to
receive credit for time served when we held that defendants
should receive credit against their sentence for time spent in a
treatment facility as a condition of release if the restrictions
imposed by that facility approximat[e] those experienced by one
who is incarcerated.3
Nygren contains the following description of the types
of restrictions that will normally be deemed equivalent to
incarceration:
[R]esidents are invariably there by court
order; the facilities require residency, and
residency requirements are sufficiently
stringent to involve a definite element of
confinement; residents of the facilities are
subject to twenty-four hour physical custody
or supervision; any periods during which
residents may be permitted to leave the
facility are expressly limited, both as to
time and purpose; while in the facility,
residents are under a continuing duty to
conform their conduct to institutional rules
and to obey orders of persons who have
immediate custody over them; and residents
are subject to sanctions if they violate
institutional rules or orders and to arrest
if they leave the facility without
permission.
Id. at 146.
Genesis House is a residential
treatment facility for alcohol and substance
abuse. The facility is supervised twenty-
four hours a day by its staff. Residents
must not leave the facility without
permission, they must abide by a set of house
rules, and they must obey a curfew at night.
Residents are subjected to hourly bed checks
after curfew, as well as random checks during
the day. Residents are also subjected to
random urine and breath tests to make sure
that they are not consuming alcohol or
controlled substances.
At first blush, Genesis House would
seem to fit the Nygren criteria, and Fortuny
would seemingly be entitled to credit against
his sentence for the four months he spent
there (February 20, 2000 through June 20,
2000). But there are two wrinkles in the
situation.
First, Fortuny did not enter
Genesis House pursuant to a court order;
instead, he voluntarily entered the treatment
program. This situation changed on April 4,
2000, when the court ordered Fortuny to
continue the program at Genesis House as a
condition of release. But the State argues
that Fortuny is not entitled to Nygren credit
for the 43 days from February 20th through
April 3rd (the last day of Fortunys voluntary
residence at Genesis House).4
Second, Fortuny did not spend
twenty-four hours a day at Genesis House.
Rather, he was granted work release.
At the discretion of the Genesis
House staff, some of its residents are
allowed to leave the facility to attend work.
Patients who are granted work release must
fill out a weekly work verification form. In
this form, the patient outlines the dates and
hours they will be gone, and the patient
supplies the names, positions, and telephone
numbers of the people who can verify their
work attendance. The Genesis House staff
randomly contacts the workplace to ascertain
that the patient is indeed on the job.
Between February 20th and May 27th,
Fortuny was absent from Genesis House as much
as six days a week, and sometimes for as long
as ten or eleven hours at a stretch. On May
28th the last day of Fortunys work release
he misused his release privilege and stayed
away from Genesis House for 18 hours. This
caused the Genesis House staff to revoke
Fortunys work release privileges, although
they did not terminate him from the program
because they believed that he was making
progress. (Fortuny remained a twenty-four-
hour-a-day resident of Genesis House from May
29th through June 20th, when he completed the
residential program and was discharged.)
Because Fortuny spent so many hours
away from the facility on work release
between February 20th and May 28th, Superior
Court Judge Larry D. Card concluded that
Fortuny should not be given whole-day Nygren
credit for those days. Instead, Judge Card
excluded Fortunys work-release hours and gave
him credit only for the remaining hours.
This decision prompted both parties to
appeal. The State argues that Fortuny should
get no credit at all for these days. The
State contends that, because of Fortunys work
release status, he was able to pursue his
normal livelihood and to use Genesis House
merely as a dormitory. Fortuny, on the other
hand, argues that he should get whole-day
credit for these days of employment because
work release is a staff-sanctioned aspect of
the Genesis House program.
The 43 days from February 20th
through April 3rd
Fortuny voluntarily entered the
Genesis House residential program on February
20, 2000. He remained there voluntarily
until April 4th, when (at Fortunys request)
the court altered the conditions of his
release to require his residence at Genesis
House. Thus, beginning on April 4th, Fortuny
resided at Genesis House under court order.
The question is whether Fortuny is entitled
to Nygren credit for the 43 days he spent at
Genesis House before April 4th.
Judge Card gave Fortuny partial
Nygren credit for these 43 days (subtracting
the hours that Fortuny spent on work
release). We conclude that it was plain
error for Judge Card to award any Nygren
credit for these 43 days.
One of the chief criteria
established by Nygren for identifying a
custody-like residential placement is that
residents are invariably sent there by court
order.5 We underscored this requirement in
Anchorage v. Bussell, 702 P.2d 667 (Alaska
App. 1985).
In Bussell, the defendant
voluntarily entered a residential treatment
program after receiving assurances from the
trial court that he would be given credit
against his sentence for the time he spent
there. However, the court never ordered
Bussell to participate in this residential
treatment. We granted a petition to review
this situation because we concluded that
Nygren credit could be awarded only for court-
ordered placements, and we wished to
forestall the possibility that Bussell would
rely to his detriment on the trial courts
assurances:
Nygren allow[s] a person credit for time
served in a therapeutic community ... , but
only [when] the individual is confined in the
therapeutic program by virtue of a court
order validly issued requiring that he or she
remain there. ... There is nothing in this
record indicating that [the trial court] ever
purported to enter an order requiring Bussell
to be lodged at the Far North Recovery
Center, either as a condition of pretrial
release or as a condition of post-conviction
probation. Therefore, on this record, [the
trial court had] no basis for predicting that
any time Bussell spent at the Far North
Recovery Center could be credited against
[his] sentence ... .
Id., 702 P.2d at 668-69.6
Based on Nygren and Bussell, we agree with the State
that it was plain error for Judge Card to award Fortuny
any Nygren credit for his initial 43 days at Genesis
House.
The 55 days from April 4th through May 28th
Beginning on April 4, 2000, Fortuny resided at Genesis
House under a court order requiring him to do so.
However, as described above, the Genesis House staff
gave Fortuny work release privileges. Pursuant to his
work release, Fortuny was away from the facility for up
to ten or eleven hours a day, for five or six days a
week. This situation continued until May 28th, when
Fortuny abused his work release privilege and the
Genesis House staff revoked his work release status.
Beginning on May 29th, Fortuny was confined to Genesis
House twenty-four hours a day until his discharge from
the residential program on June 20th.
Judge Card gave Fortuny partial Nygren credit for the
55 days from April 4th through May 28th. (Again, the judge
subtracted the hours that Fortuny spent on work release.) Both
the State and Fortuny appeal this ruling. The State argues that
Fortuny should receive no credit for these days, while Fortuny
argues that he should receive full credit for these days.
The States argument that Fortuny should receive no
credit is simply an extension of Judge Cards thesis that Fortuny
should not receive credit for the hours he spent away from
Genesis House at his job. The State agrees that Fortuny should
not receive credit for the time he spent at work, but the State
takes the argument one step further. According to the State,
Fortunys job-related absences were so extensive that he basically
was able to lead his normal life, with the exception that he had
to return to Genesis House to sleep. Under these circumstances,
the State argues, Fortuny was not subjected to the kinds of
restrictions that characterize incarceration and so he should not
receive Nygren credit at all.
But the record does not support the States view of the
situation. As explained above, work release status must be
granted by the Genesis House staff. When it is granted, the
patient must fill out a weekly work verification form, describing
the dates and hours they will be gone and supplying the names,
positions, and telephone numbers of the people who can verify
their work attendance. In addition, the Genesis House staff
randomly contacts the patients workplace to ascertain that the
patient is indeed on the job. Moreover, even when work release
is granted, the patient must continue to abide by the other rules
and restrictions of the Genesis House program e.g., breath and
urine testing, curfew, and bed checks.
The record shows that the Genesis House staff did
indeed monitor Fortunys absences and that they quickly
terminated Fortunys work release status when he abused his work
privileges by remaining away from the facility for eighteen hours
on May 28, 2000.
We further note Fortunys work release privileges at
Genesis House are not conspicuously different from the work
release privileges that are granted to selected prisoners in the
custody of the Department of Corrections. AS 33.32.015(b)(4)
empowers the Commissioner of Corrections to authorize a prisoner
to engage in vocational training or in productive employment
within or outside a correctional facility. As stated in
AS 33.32.010(2), one of the legislatures purposes in granting the
commissioner this authority was to
provide realistic work experience and
vocational training for prisoners under
conditions as much like those that prevail in
private industry as possible, consistent with
proper penal administration, and to direct
[prisoners] efforts toward financial
responsibility, acquiring or improving
effective work habits and occupational
skills, and increasing the probability of
opportunities for employment after [their]
release[.]
Under 22 AAC 05.350(a), the
Department of Corrections can assign a
prisoner to be housed at a restitution center
so that the prisoner can participate in
restitution, work, and community service
programs. As stated in 22 AAC 05.350(b),
these restitution centers are designed to
offer an alternative to traditional
incarceration, a program of partial
incarceration that provides the opportunity
for prisoner rehabilitation through community
service and employment while protecting the
community. Prisoners placed at these
restitution centers must agree to remain at
the center at all times except while at work
or a community service project, while
traveling to or from work or a community
service project or an approved job interview,
or during an approved emergency absence or
furlough.7
In other words, Fortunys status at
Genesis House during the 55 days when he
enjoyed work release privileges was not much
different from the status of many prisoners
serving sentences under the custody of the
Department of Corrections. For these
reasons, we reject the States argument that
Fortuny should not receive Nygren credit for
these 55 days.
For these same reasons, we agree
with Fortuny that he should receive full
credit for these 55 days, not just the
partial credit that Judge Card gave him.
When Fortuny attended work, he was not
playing hooky from Genesis House. Rather,
the clinical staff at Genesis House views
work release as part of the treatment
regimen. Dr. Donolitea Maloney, the clinical
director at Genesis House, testified that
work release is a vital link in the treatment
program, designed to supplement the
structured living environment of Genesis
House by prepar[ing] an individual ... to
continue [a life of] sobriety once they
return to the real world. Dr. Maloney also
noted that work release allows [patients] to
continue their responsibilities as an adult
within our society, to support their
dependents, and to assume responsibility for
[the costs of] their [treatment].
These clinical aims mirror the
legislatures announced aims when it
authorized work release of sentenced
prisoners: to provide realistic work
experience and vocational training for
prisoners under conditions as much like those
that prevail in private industry as possible,
... to direct [prisoners] efforts toward
financial responsibility, [and to enable
prisoners to] acquir[e] or improv[e]
effective work habits and occupational
skills, [thus] increasing the probability of
opportunities for employment after [their]
release[.]8
In other words, the legislature
does not view work release as a vacation from
correctional supervision, but instead as a
supplemental method of correction a means of
fostering rehabilitation and reducing
recidivism. If Fortuny and similarly
situated defendants were denied credit for
the time they spent on work release, this
would undercut the acknowledged
rehabilitative benefits of work release by
deterring defendants from seeking work
release and, potentially, deterring treatment
programs from offering it.
For these reasons, we conclude that
Fortuny should receive full credit for the
days he resided at Genesis House under court
order, even the days when he was authorized
to spend many hours away from the treatment
facility on work release.
Conclusion: Our calculation of Fortunys Nygren credit,
and our reason for remanding his case to the
superior court
Fortuny resided at Genesis House from
February 20, 2000 through June 20, 2000. However,
no court order obliged him to reside there until
April 4th. As we have explained in this opinion,
we conclude that Fortuny is not entitled to Nygren
credit for the first 43 days of his stay (February
20th through April 3rd), but we also conclude that
Fortuny is entitled to full Nygren credit for the
remainder of his stay (April 4th through June
20th) a total of 78 days.
This total is 15 days less than the 93 days
of Nygren credit that Judge Card calculated. This
15-day difference prompts us to remand Fortunys
case to the superior court so that Judge Card can
have an opportunity to reconsider Fortunys
sentence.
Fortunys composite sentence was 30 months
with 25 months suspended i.e., 5 months to
serve. But Judge Card believed that Fortuny had
already served 93 days of this 150-day sentence.
Because the length of Fortunys sentence (150 days
to serve) is not much greater than Fortunys credit
for time served (under Judge Cards calculation),
it is possible that Judge Card imposed 5 months to
serve in tacit reliance on the assumption that
Fortuny had 93 days of Nygren credit, and that
Fortuny would therefore spend less than
2 additional months in jail.
Fortuny does not have 93 days of Nygren
credit; he has only 78 days. Because this difference
of 15 days in the Nygren calculation might make a
difference in Judge Cards sentencing decision, we
REMAND this case to the superior court. If Judge Card
was relying on the figure of 93 days when he sentenced
Fortuny to serve 5 months in jail, the judge now has
the discretion to reduce Fortunys time to serve.
We do not retain jurisdiction of Fortunys
case.
_______________________________
1 AS 11.41.220(a)(1)(B) and AS 28.35.030(a)(1),
respectively.
2 AS 12.55.025(c), enacted by SLA 1978, ch. 166, 12.
Before 1978, the same provision was contained in former AS
11.05.040(a).
3 Id. at 146 (citing Paul v. State, 560 P.2d 754, 758
(Alaska 1977)).
4 The year 2000 was a leap year.
5 Id., 658 P.2d at 146.
6 See also State v. Monk, 886 P.2d 1315, 1318 n.7 (Alaska
App. 1994) (holding that a defendant was not entitled
to Nygren credit when his residence at a treatment
facility was required by his employer, the United
States Coast Guard, but not by the court).
7 22 AAC 05.352(a)(4).
8 AS 33.32.010(2).
