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State v. Judson (04/12/2002) ap-1798

State v. Judson (04/12/2002) ap-1798

                             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-
8050
                                      Appellant,  )
Trial Court No. 1JU-01-0269 CR
                              )
                  v.          )                     O P I N I O N
                              )
NORMAN R. JUDSON,             )
                              )
                                      Appellee.   )
[No. 1798 - April 12, 2002]
                              )

          Appeal from the District Court, First Judi
          cial District, Peter B. Froehlich, Judge.

          Appearances:  Kim S. Stone, Assistant
          Attorney General, Office of Special
          Prosecutions and Appeals, Anchorage, and
          Bruce M. Botelho, Attorney General, Juneau,
          for Appellant.  Thomas G. Nave, Juneau, for
          Appellee.

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

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.


          After  pleading  guilty  to driving  while  intoxicated

(DWI),1  Norman R. Judson asked the district court to order  him,

as  a  condition of his release, to enroll in residential alcohol

treatment  in  Washington  state.   The  court  agreed   and   at

sentencing  granted Judson twenty-one days of confinement  credit

enough  to  satisfy  the  statutes twenty-day  mandatory  minimum

          sentence for second offenders  for the time he spent in alcohol

treatment.

          The  state  argues  that the court  erred  by  awarding

Judson  Nygren credit2 for the time he spent in treatment because

the  courts order mandating treatment was not a true court order,

but  an accommodation of Judsons desire to avoid jail.  The state

also argues that Nygren credit cannot be used to satisfy the  DWI

statutes  mandatory  minimum  sentence  because  the  legislature

intended  jail time and rehabilitative treatment to  be  distinct

requirements.   Lastly, the state argues that the district  court

violated  the bail release statute by ordering treatment  without

considering whether Judson was a flight risk or a danger  to  the

community.   We  reject  these three claims  and  affirm  Judsons

sentence.



          Facts and proceedings

          On  March  6, 2001, Judson was cited for DWI.   He  was

released on his own recognizance.  A month later, Judson  pleaded

guilty  to  DWI and asked District Court Judge Peter B. Froehlich

to  modify his conditions of release to require him to enroll  in

the  Sundown M Ranch, an alcohol treatment program in Washington.

Judson asked for this order so he would be eligible at sentencing

to  request  Nygren  credit  for the  days  he  was  confined  to

treatment.  The  state  opposed  Judsons  request,  arguing  that

accommodating  Judsons desire to serve his  sentence  in  alcohol

treatment  instead of jail, as opposed to ordering  treatment  as

part  of  his sentence, would violate equal protection, the  bail

and DWI statutes, and Nygren requirements.

          The  district  court rejected the states arguments  and

granted Judsons request.  Judge Froehlich conceded that the  only

changed  circumstance that would warrant modification of  Judsons

release  conditions was his DWI conviction.  But Judge  Froehlich

noted  that  Judsons conviction was a significant change.   Judge

Froehlich  also reasoned that Judson would receive longer-lasting

          benefits from alcohol treatment than time in a jail cell, the

community  would  benefit  from Judsons rehabilitation,  and  the

state would save money.

          During  Judsons sentencing hearing in June,  the  state

reiterated its  arguments in opposing Nygren credit for the  time

Judson  had spent in treatment.  The state also argued  that  the

Sundown  M  Ranch  was  not restrictive  enough  to  meet  Nygren

requirements.   After hearing testimony from a representative  of

that treatment program, Judge Froehlich concluded that Judson was

entitled to twenty-two days of Nygren credit for the time he  had

spent in treatment (twenty-one days) and in jail (one day). Judge

Froehlich  then sentenced Judson to 122 days with  100  suspended

and  placed him on probation for three years.  Judsons conditions

of  probation required him, among other things, to be screened by

the  Alcohol Safety Action Program (ASAP) and to complete  up  to

forty-five  days  of inpatient treatment if recommended  by  that

program.

          The state appeals the district courts decision to grant

Nygren  credit, but does not argue on appeal that the  Washington

facility failed to meet Nygren requirements.



          Discussion

          Should Judson get Nygren credit for the period he spent
          in treatment even
          though  he  asked the court to order him to participate

in treatment?

          The  crux of the states argument is that Judson  should

not  receive  Nygren credit for the period he  spent  in  alcohol

treatment  because  the courts order was  nothing  more  than  an

accommodation  of  Judsons  desire to  get  treatment  and  avoid

serving  time  in jail.  Under Nygren v. State, a  defendant  can

receive  credit for time served in treatment if the defendant  is

subjected to restrictions approximating incarceration.3

          The state relies on Anchorage v. Bussell4 to argue that

Judsons treatment was insufficiently compelled to entitle him  to

          Nygren credit.  In Bussell, we held that the defendant could not

receive  credit  toward his sentence for time  he  had  spent  in

treatment  before reporting to jail because the court  had  never

issued a valid order mandating that treatment.5  We observed that

time  voluntarily  spent in a restrictive  treatment  environment

does  not  automatically entitle a defendant to credit  for  time

served.6   Here,  the state does not dispute  that  the  district

court  issued an order requiring treatment, but argues  that  the

order was invalid because it was issued at Judsons request and on

Judsons schedule.

          We  recently reaffirmed the Bussell holding in State v.

Fortuny.7   In  Fortuny,  the defendant enrolled  in  residential

alcohol  treatment while awaiting sentencing for DWI  and  third-

degree assault.8  After Fortuny had spent about six weeks in that

program, the court ordered Fortuny to continue alcohol treatment,

presumably  at his request.9  We held that Fortuny could  receive

Nygren credit for the days he spent in treatment after the  court

issued its order, but not before.10  The state did not argue,  as

it  does  here,  that  the courts order was  invalid  because  it

accommodated Fortunys voluntary decision to enroll in  treatment.

Consequently,  the  issue  raised  by  this  appeal   was   never

litigated.

          Because  we  have  never  held that  Nygren  credit  is

inappropriate  in  Judsons  circumstances, the  state  relies  by

analogy  on our decision in M.R.S. v. State.11  The defendant  in

M.R.S.  asked  the  court to order him as part of  a  delinquency

proceeding to undergo a psychological evaluation.12  In  a  later

unrelated proceeding, M.R.S. argued that the statements  he  made

in   that  evaluation  were  protected  from  disclosure  by  the

privilege  against self-incrimination because they were  obtained

by  government compulsion  i.e., by court order.13   We  rejected

that   claim,  finding  the  statements  voluntary  because   the

psychological evaluation had been conducted at M.R.S.s behest and

with his blessing[.]14  The state asserts that this same principle

          applies here, arguing that Judsons days at the rehabilitation

center  cannot  be  deemed  court-ordered:  the  confinement  was

voluntary,  rather  than compelled, because the  order  was  done

strictly at Judsons behest.

          The  states  analogy is unpersuasive.  For purposes  of

receiving  Nygren credit for time spent in a treatment  facility,

the significant question is not whether the treatment was ordered

at  the defendants behest or against his will, but the extent  to

which  the  defendant is subjected to restrictions  approximating

those experienced by one who is incarcerated.15  A defendant  who

voluntarily enters a treatment program is not subjected to  jail-

like  conditions because the defendant can leave the  program  at

any  time.   But once a defendant is under court order to  attend

treatment, that defendant faces immediate arrest and imprisonment

for leaving the facility without court permission.16

          To  support  its  argument that Judsons  enrollment  in

treatment  was  voluntary  despite the  court  order,  the  state

speculates  that Judge Froehlich would have excused  Judson  from

the  treatment program if Judson had changed his mind.  But  even

if  Judson had persuaded the court to release him from treatment,

Judson  would only be eligible for Nygren credit for the days  he

actually spent in the treatment program under court order, and he

would  face  the  prospect of a harsher  ultimate  sentence  that

reflected   his   more  doubtful  prospects  for  rehabilitation.

Judsons enrollment in treatment under court order thus cannot  be

equated  with the voluntary participation we discussed in Bussell

and Fortuny.

          The  significant issue under Nygren is not whether  the

defendant  asks  for  treatment, but  whether  the  defendant  is

subjected  to  jail-like conditions during treatment.  The  state

does not dispute that the treatment facility Judson attended  met

Nygren  requirements.   We  therefore conclude  that  Judson  was

entitled to Nygren credit for the time he spent in treatment even

though the treatment was ordered at Judsons request.

                Can  Nygren credit for alcohol treatment  satisfy
          the minimum jail time
          requirement in the DWI statute?

          As  a  second  DWI offender, Judson was  subject  to  a

mandatory  minimum  sentence of twenty days.17   Judge  Froehlich

sentenced  Judson to 122 days with 100 suspended  after  awarding

him  22  days of confinement credit for the time he had spent  in

treatment  and  in  jail.  The state argues  that  this  sentence

thwarted  the  legislatures  intent  to  require  both  mandatory

imprisonment and alcohol treatment for DWI offenders.

          We  agree  that  the  mandatory  minimum  sentence  and

alcohol screening and referral are distinct requirements  of  the

DWI  statute.18  But the states argument that Judson  cannot  use

Nygren  credit  to  satisfy his twenty-day  mandatory  jail  term

because the legislature intended courts to impose both jail  time

and  treatment  overlooks two important points.  First,  although

alcohol  screening  and  referral are mandated  by  the  statute,

inpatient alcohol treatment is not.19  Second, inpatient treatment

at  a  facility that meets Nygren requirements is the  functional

equivalent  of jail time and therefore constitutes a sentence  of

imprisonment.20  Indeed, substituting inpatient treatment for jail

time  in  some cases will result in a longer period  of  custody,

because jail inmates get good time credit.21  Here, Judson  spent

twenty-one days in a treatment program that met stringent  Nygren

requirements, as opposed to fourteen days he would have spent  in

jail if the court had imposed the minimum twenty-day sentence and

Judson had accumulated the usual amount of good time credit.22

          In  addition  to imposing a sentence in excess  of  the

twenty-day  minimum, Judge Froehlich placed Judson  on  probation

for  three  years  and  required him to  complete  any  treatment

recommended  by the Juneau ASAP, including up to forty-five  days

of inpatient treatment.  Thus, the court imposed just the type of

sentence envisioned by the legislature for a second DWI offender:

at   least  twenty  days  in  a  jail-like  environment,  alcohol

screening and referral, and additional treatment if circumstances

          required.

          The  history  of the DWI statute leads us  to  conclude

that  the legislature intended to give courts this broad latitude

to  order  inpatient treatment for DWI offenders.  In  1990,  the

legislature  amended the DWI and sentencing  statutes  to  ensure

that courts could require rehabilitative treatment as a condition

of probation or incarceration.23  These amendments were enacted in

response  to decisions of this court and the supreme  court  that

recognized then-existing limits on the power of courts  to  order

such treatment.24

          We  conclude  that the district court had authority  to

apply  the Nygren credit Judson had earned in residential alcohol

treatment toward his twenty-day mandatory minimum sentence.  Time

spent  at a treatment facility that meets Nygren requirements  is

the  equivalent of incarceration.  Moreover, the legislature  has

clearly  conferred  authority on the courts to order  residential

treatment where appropriate for DWI offenders.


          Did  the  court  violate the bail statute  by  changing
Judsons conditions of
          release   without  considering  the  proper   statutory

factors?

          The state next argues that the district court failed to

consider  the  proper statutory factors before modifying  Judsons

conditions  of release to order him to participate in residential

treatment.   The  bail  release statute, AS  12.30.020,  requires

courts  to  release  a person charged with  an  offense  on  that

persons  personal recognizance or on the posting of  bail  unless

that person has been convicted of certain serious offenses or the

court determines that release will pose a danger to the community

or will not reasonably assure the accuseds appearance in court.25

Once  such  a  determination is made, the statute authorizes  the

court to impose a variety of bail release conditions.26  The state

argues  that  the  court erred when it ordered Judson  to  attend

treatment for a reason not authorized by the bail statute:  so he

          could get Nygren credit.

          As  a  preliminary  matter, we note that  the  district

court  ordered Judson into treatment after he had pleaded  guilty

to  DWI.  Consequently,  the courts  order  was  governed  by  AS

12.30.040, which regulates a defendants release after conviction,

not  by the bail release statute.  However, AS 12.30.040 requires

the  court to consider the same statutory factors before imposing

conditions of release.27

          Although  Judge  Froehlich  never  expressly  addressed

these statutory factors, he did note that Judsons conviction  was

a  significant change in circumstances that could warrant release

conditions  different from those the court imposed before  Judson

changed  his  plea.   Nevertheless, we assume  for  the  sake  of

argument  that  Judsons DWI conviction was  an  inadequate  basis

under  AS  12.30.040 for the court to order Judson  into  alcohol

treatment  to protect the public.  Even so, we reject the  states

claim  that  the  courts order violated the bail statute  (or  AS

12.30.040)  because  the court had no duty  to  consider  whether

Judson  was  a  flight risk or a danger to the  community  before

ordering  alcohol treatment at Judsons request.  The  requirement

that courts base release conditions on these two factors is aimed

at  protecting  the  accused  from  needless  detention,  not  at

preventing  courts from imposing more stringent  bail  conditions

that the defendant invites.  When the bail statute was enacted in

1966,  its  avowed  purpose  was  to  assure  that  all  persons,

regardless  of  their financial status, shall not  needlessly  be

detained   pending   their  appearance  to  answer   charges[.]28

Initially, the statute authorized courts to impose conditions  on

a  defendants  release  only  if necessary  to  ensure  that  the

defendant appeared in court.29  Since then, the statute has  been

amended to allow courts to consider a defendants potential danger

to  the community, the alleged victim, or others.30  But none  of

these changes suggests that the underlying purpose of the statute

protecting  the  accused  from  being  needlessly  detained   has

          changed.

          Because   the  requirement  that  courts  base  release

conditions on the defendants flight risk and potential danger  is

aimed  at protecting the defendant, we conclude that AS 12.30.020

imposes  no  duty  on courts to consider these  specific  factors

before  imposing  a rehabilitative condition that  the  defendant

requests.



          Conclusion

          The   judgment  of  the  district  court  is  therefore

AFFIRMED.

MANNHEIMER, Judge, concurring.


          I  join the majoritys decision with some reluctance.  I

agree  with  all  the legal premises discussed  in  the  majority

opinion, but I am troubled by the consequences of our decision.

          When the Alaska legislature amended AS 12.55.025(c)  to

give  defendants  credit  for time served,  the  legislature  was

pursuing  the aim of equal treatment among rich and  poor.   That

is,  the  legislature  wanted  to  make  sure  that  an  indigent

defendant  who  could not secure bail release (and who  therefore

remained  in  jail while awaiting trial) would not be  forced  to

serve more total time in jail than another defendant who remained

free pending trial and who then received the same sentence.

          In Nygren v. State1, this court expanded the concept of

credit for time served when we held that AS 12.55.025(c) was  not

limited  to  defendants who spent time in jail before conviction,

but  rather applied to all defendants who were confined by  court

order  to  a jail-like residential facility while awaiting  trial

and sentencing.

          We  are  now  confronted with an instance  in  which  a

defendant  took  strategic advantage of our  Nygren  decision  by

asking  the  trial  court to order him to stay in  a  residential

treatment facility while he awaited sentencing.  I agree with  my

colleagues  that  this  was  legal and  that  the  defendant  was

entitled  to claim credit against his eventual sentence  for  the

days  he spent in the treatment facility.  But our decision holds

disquieting consequences.

          Now  that  we  have  decided  that  Nygren  credit   is

available  to  defendants who ask the trial court to  order  them

into  residential treatment, I fear that defendants may again  be

divided  into  rich  and poor.  Defendants  who  can  afford  the

expense of a residential treatment facility will ask the court to

place  them  there   with the result that these  defendants  will

effectively  serve their sentences in treatment  facilities  (for

they  will  receive  credit for the days  spent  there).   Poorer

          defendants, on the other hand, will serve their sentences in

jail.

          It is hard to fault the trial judge for ordering Judson

to  engage  in residential treatment for twenty days rather  than

having  him sit in jail for twenty days.  Presumably, society  is

better  off whenever a defendant receives active treatment  while

in  custody.  And if a defendant is willing and able to  pay  for

their  own  treatment,  so  much  the  better.   But  unless  our

government  makes a real effort to provide treatment alternatives

for defendants with less money, we in Alaska may have to get used

to  seeing the same type of story that intermittently appears  in

the media when movie stars or sports celebrities are charged with

a crime involving substance abuse:  the rich and the famous go to

treatment centers, while other defendants go to prison.



_______________________________
     1    AS 28.35.030(b)(1)(B).
          
     2     See  Nygren  v. State, 658 P.2d 141, 146 (Alaska  App.
1983).

     3    658 P.2d at 146.

     4    702 P.2d 667 (Alaska App. 1985).

     5    Id. at 668-69.

     6    Id. at 669.

     7     ___  P.3d  ___, Op. No. 1792 (Alaska  App.,  March  8,
2002).

     8    Id. at 2.

     9    Id. at 4.

     10    Id. at 5-12.

     11    867 P.2d 836 (Alaska App. 1994), revd on other grounds,
897 P.2d 63 (Alaska 1995).

     12    Id. at 838-39.

     13    Id.

     14    Id. at 839.

     15    Nygren, 658 P.2d at 146; see also State v. Crosby, 770
P.2d  1154, 1157 (Alaska App. 1989) (The right to receive  credit
for time served arises when a defendants liberty is substantially
restricted by court order.).

     16    See Nygren, 658 P.2d at 146.

     17    See AS 28.35.030(b)(1)(B).

     18     See AS 28.35.030(b)(1)(B) (mandating minimum sentence
of twenty days for a second offender); AS 28.35.030(h) (requiring
the  court  to order all DWI offenders to satisfy the  screening,
evaluation,  referral,  and program requirements  of  an  Alcohol
Safety  Action Program or other approved treatment facility);  AS
28.35.030(i) (providing that inpatient treatment may be  required
by an authorized agency only if authorized in the judgment).

     19    See AS 28.35.030(i).

     20     Dodge  v.  Anchorage, 877 P.2d 270, 272 (Alaska  App.
1994)  (citing Lock v. State, 609 P.2d 539 (Alaska  App.  1980));
cf.  Hester  v.  State,  777 P.2d 217,  219  (Alaska  App.  1989)
(addition  of  thirty-day  inpatient  treatment  requirement  not
designated  in  the judgment violated the double jeopardy  clause
because  the defendant was subjected to restraints equivalent  to
custody).

     21     See  Parker v. State, 714 P.2d 802, 806 (Alaska  App.
1986).

     22    See AS 33.20.010.

     23     See  ch.  188,  1-5, 7, SLA 1990; January  19,  1990,
Sectional Analysis of H.B. 366; note 24, infra.

     24     See  House Judiciary Committee hearing  on  H.B.  366
(January  24, 1990) (testimony by Laurie Otto, Assistant Attorney
General);   Memorandum on H.B. 366 from Rep. Fran  Ulmer  to  the
House Judiciary Committee (January 17, 1989); Memorandum on  H.B.
366  from  Rep. Fran Ulmer to the Democratic Caucus (December  5,
1989);  Letter from the Department of Law to Rep.  Ulmer  on  the
questionable   authority  of  courts  to  order   treatment   for
incarcerated offenders and as a condition of probation  following
the  decisions  in Boyne v. State, 586 P.2d 1250  (Alaska  1978),
Hester  v. State, 777 P.2d 217 (Alaska App. 1989), and Benboe  v.
State, 738 P.2d 356 (Alaska App. 1987) (November 17, 1989).

     25    See AS 12.30.020(a).

     26    See AS 12.30.020(b).

     27    AS 12.30.040 provides in relevant part:

          Release  after conviction. (a) A  person  who
          has  been  convicted of  an  offense  and  is
          awaiting  sentence,  or  who  has  filed   an
          appeal,  shall be treated in accordance  with
          the  provisions  of AS 12.30.020  unless  the
          court  has reason to believe that no  one  or
          more  conditions  of release will  reasonably
          assure  the  appearance  of  the  person   as
          required or prevent the person from posing  a
          danger  to the victim, other persons, or  the
          community.   If that determination  is  made,
          the person may be remanded to custody.
          
     28     Report of the House Judiciary Committee on H.B.  317,
1966 House Journal 110-11.

     29    See ch. 20,  1, SLA 1966.

     30    See ch. 112,  1, 2, SLA 1967; ch. 39,  1, SLA 1974; ch.
143,  16, SLA 1982; ch. 63,  10, 11, SLA 1997.

1    658 P.2d 141 (Alaska App. 1983).