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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
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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).
