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State v. Felix (7/12/2002) ap-1808
State v. Felix (7/12/2002) ap-1808
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 Nos.
A-7885,
) A-7886, & A-
7887
Appellant, ) Trial
Court Nos. 4FA-00-4024, 2079,
) 2794, 3147, 3369, &
3625 Cr
v. )
)
JOLENE FELIX, PAMELA FAIN, ) O P I N
I O N
and SIGMUND T. BUCHANAN, )
)
Appellees. )
[No. 1808 July 12, 2002]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Winston S. Burbank
and Mark I. Wood, Judges, and Patrick S.
Hammers, Magistrate.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. No direct appearance for
Appellees. Quinlan Steiner, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, Amicus Curiae aligned
with the Appellees.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, dissenting.
In two of these three consolidated appeals, the
district court granted prisoners requests for a short-term
release from prison so that they could attend to personal
business. In the third appeal, the district court not only
granted a prisoner two short releases from custody, but later
ordered that the prisoner be released from custody so that she
could spend the remainder of her sentence in a treatment
facility.
In the first two cases (the appeals involving Pamela
Fain and Sigmund T. Buchanan), the district court judges declared
that they were modifying the prisoners sentences by granting them
periodic imprisonment under AS 12.55.015(a)(3). In the remaining
case (the appeal involving Jolene Felix), the magistrate stated
that he was not ordering periodic imprisonment; rather, he was
modifying the prisoners sentence in the interest of fairness.
The State appeals all three cases. The State contends
that, under the guise of granting periodic imprisonment or
sentence modification, the district court has arrogated to itself
the power to grant prison furloughs a power that can only be
exercised by the Classification Committee of the Department of
Corrections. The Alaska Public Defender Agency, appearing as
amicus curiae aligned with the appellees, argues that the
district court was not granting furloughs but was instead
exercising its lawful power to modify a criminal sentence, a
power granted by Alaska Criminal Rule 35(b). The Public Defender
Agency contends that each of the three prisoners demonstrated
good cause for the court to alter their sentences by granting
them periodic imprisonment i.e., splitting their prison terms
into segments, separated by interludes of freedom.
In all three cases, the defendants have already enjoyed
their periods of freedom and have completed their sentences.
Thus, the States appeals are moot. However, because the issue is
important, and because the judicial actions that the State
challenges are capable of repetition and likely to escape review
if we insist on strict application of the mootness doctrine, we
will reach the merits of the States appeal.1
Each of these three cases rests on different facts, so
our analysis of each case is a little different. In general,
though, we agree with the State that the district court has
improperly interfered in matters that are, by law, entrusted to
the discretion of the Department of Corrections.
The underlying facts of these three appeals
The Felix appeal, No. A-7885.
Jolene Felix pleaded no contest to refusing
to submit to a breath test and leaving the scene of an
accident. On November 20, 2000, she was sentenced to a
composite term of 240 days imprisonment with 155 days
suspended 85 days to serve.
One week later, on November 27th, Felix filed
a motion asking the district court (1) to release her
from custody for one day so that she could obtain
clothing for her child, and (2) to release her again
for a few days at Christmas. Felixs attorney labeled
this motion a request for periodic sentence.
Magistrate Patrick S. Hammers held a hearing
on Felixs motion on November 29th. At that time, Felix
withdrew her request to be released at Christmas.
Instead, she asked to be released for a short time to
arrange substance abuse treatment at the Old Minto
Family Recovery Camp, a program run by the Tanana
Chiefs.
Magistrate Hammers declared that he would
allow Felix two days liberty to get her affairs in
order. He stated that he was not exercising his power
under Criminal Rule 35(b) to modify Felixs sentence to
one of periodic imprisonment. Rather, he declared that
he was adjusting Felixs sentence in the interest of
fairness because he had told Felix at the original
sentencing hearing that he would give her time to take
care of her affairs, but had been unable to do so
because Felix could not arrange a suitable third-party
custodian at that time.
Felix had arranged a screening appointment
with the Tanana Chiefs for 1:00 p.m. the next day
(November 30th), so Magistrate Hammers ordered that her
two days of liberty would begin at 8:00 a.m. on the
30th. The magistrate directed Felix to return to the
Fairbanks Correctional Center and surrender herself to
custody no later than 5:00 p.m. on December 1st.
However, the magistrate placed stringent conditions on
Felixs release: she was to remain within the immediate
presence of a third-party custodian for 24 hours a day,
and she was ordered not to drive a vehicle or drink
alcoholic beverages. Thus, even though Felix was
ostensibly granted an interval of liberty between
periods of imprisonment, her release looked like
traditional bail release except that Felix was a
sentenced prisoner with no right to bail.
On December 6th, Felixs attorney informed
Magistrate Hammers that Felix had been accepted at the
Old Minto Recovery Camp. He asked the magistrate to
release [Felix] to treatment i.e., to allow Felix to
serve out the balance of her sentence at [the Old
Minto] residential [treatment] program. Again, Felixs
attorney asserted that this release would amount to a
sentence of periodic imprisonment. The defense
attorney argued that, under Criminal Rule 35(b), the
court had the authority to modify Felixs sentence in
this manner.
The State opposed Felixs request, arguing
that Felix was really seeking a treatment furlough and
that only the Department of Corrections had the
authority to grant furloughs.
Without resolving this dispute between
periodic imprisonment and furlough, Magistrate Hammers
declared that he had the authority to modify Felixs
sentence and require that the balance of it be spent at
the Old Minto Camp. He then ordered that Felix be
released for one day (between 7:00 a.m. on December
21st and 8:00 a.m. on December 22nd) so that she could
obtain the physical examination required for entrance
into the Old Minto Camp treatment program. Again, this
one days release resembled bail release: Felix was
required to be in the continuous custody of a third-
party custodian, and she was ordered to neither drive
nor drink.
According to Magistrate Hammerss order, Felix
was to return to custody at the Fairbanks Correctional
Center from December 22nd until December 27th. Then,
on the morning of December 27th, she would be released
yet again this time, to spend the remainder of her
sentence at the Old Minto Recovery Camp. Felix was
told that, following her release on the morning of the
27th, she was to go directly to the airport and travel
to the Old Minto Camp. She was to supply the court
with proof of her successful completion of the
treatment program by February 23, 2001.
In early February, the district court
received notification from the Tanana Chiefs that Felix
had successfully completed the Old Minto Camp treatment
program on January 31, 2001. Based on this news,
Magistrate Hammers issued an amended judgement on
February 14th. The amended judgement listed the same
composite sentence, but added that Felix will be given
day-for-day credit towards jail time for attending the
Old Minto Recovery Camp and complying with their
recommendations and treatment. Proof of compliance is
to be provided to the court no later than February 23,
2001. (Sic: As just explained, Felix had already
provided proof of compliance, and this is what prompted
the magistrate to issue the amended judgement.)
The Fain appeal, No. A-7886.
Pamela M. Fain pleaded no contest to third-
degree theft. On August 16, 2000, she was sentenced to
180 days imprisonment with 150 days suspended 30 days
to serve. She was allowed to delay commencement of
this sentence until November 3rd.
On December 3rd, with 11 days left to serve,
Fain asked the district court to exercise its authority
under Criminal Rule 35(b) and modify her sentence by
releasing her from custody on December 5th so that she
could (1) keep a doctors appointment on December 13th,
and (2) arrange alternative child care for her son.
(The woman who had been caring for Fains son had become
seriously ill.) Fain asked the court to allow her to
remain at liberty for approximately six weeks, resuming
service of her sentence on January 31st.
On December 5th, District Court Judge Winston
Burbank rejected most of Fains request. However, he
did order Fain released from jail for four days to take
care of her son. Fain was directed to surrender
herself at the end of the four days and complete her
sentence.
The Buchanan appeal, No. A-7887.
Sigmund T. Buchanan pleaded no contest to two
counts of reckless driving, failing to stop at the
direction of a police officer, and resisting arrest.
On November 8, 2000, he was sentenced to a composite
term of 625 days imprisonment with 540 days suspended
85 days to serve.
At the sentencing hearing, Buchanan asked the
court to delay the commencement of his sentence for one
day so that he could attend to personal affairs. Under
AS 12.55.025(c), a sentencing judge has the power to
delay the commencement date of a defendants sentence,
but District Court Judge Mark I. Wood was unwilling to
release Buchanan without a suitable third-party
custodian. He ordered Buchanan to begin serving the
sentence immediately, but he told Buchanans attorney
that he would calendar a hearing on Buchanans motion
when a third-party custodian was found.
About two weeks later, Buchanans attorney
renewed the request for a one-day release from custody
and, on November 28th, Judge Wood held a hearing on
this matter. The State opposed Buchanans release,
arguing that it constituted an unauthorized furlough.
But Judge Wood concluded that Criminal Rule 35(b) gave
him the authority to modify Buchanans sentence, turning
it into a sentence of periodic imprisonment by
interrupting it for one day. Judge Wood ordered
Buchanan released to his proposed third-party custodian
for three and a half hours on December 1st (from 1:30
p.m. until 5:00 p.m.). The judge ordered Buchanan not
to drive or drink during this short release.
The definitions of furlough and periodic imprisonment
As explained above, the State argues that the
district court illegally granted furloughs to the
defendants, while the Public Defender Agency argues
that the district court lawfully modified the
defendants sentences, converting them to sentences of
periodic imprisonment. To analyze these competing
contentions, we must first define the terms furlough
and periodic imprisonment.
Defining furlough is the easier task because
the Alaska Statutes contain a definition of this term.
AS 33.30.901(9) states that a furlough is an authorized
leave of absence from actual confinement for a
designated purpose and period of time. (See also 22
AAC 05.660(c)(2), which defines furlough as an
authorized absence of a prisoner from a facility for a
designated purpose and period of time.)
The Department of Corrections can grant
furloughs for a broad range of purposes. Indeed, AS
33.30.101(a) authorizes the Commissioner of Corrections
to adopt regulations governing the granting of
prerelease and short-duration furloughs ... for any ...
rehabilitative purpose the commissioner determines to
be in the interests of the prisoner and the public.
Under this statute, furloughs can be granted to allow
prisoners to:
(1) obtain counseling and treatment for
alcohol or drug abuse;
(2) secure or attend vocational
training;
(3) obtain medical or psychiatric
treatment;
(4) secure or engage in employment;
(5) attend educational institutions;
(6) secure a residence or make other
preparations for release; [or]
(7) appear before a group whose purpose
is a better understanding of crime or
corrections[.]
(The Commissioner has exercised this
authority. See 22 AAC 05.316, which
authorizes prerelease or short-duration
furlough[s] for [any] purpose listed in AS
33.30.101(a).)
We encounter a more difficult time
defining periodic imprisonment because the
legislature has not enacted a definition of
this term. AS 12.55.015, the statute which
authorizes sentencing courts to impose
periodic imprisonment, distinguishes between
sentences of continuous imprisonment and
sentences of periodic imprisonment.2 But
this only illustrates the normal definition
of periodic.
According to the dictionary,
periodic can mean either occurring ... or
recurring at regular intervals or occurring
from time to time; intermittent.3 Thus, a
sentence of periodic imprisonment necessarily
entails periods of non-imprisonment; periodic
imprisonment is, by definition, not
continuous.
The legislative commentary to
AS 12.55.015(a)(3) gives only one example of
the kind of periodic imprisonment that the
legislature had in mind: a judgement
allowing a defendant [to] serv[e] a prison
term on weekends.4
From this example, and from the
wording of AS 12.55.015(a)(3) itself (which
speaks of a courts authority to impose a
definite term of periodic imprisonment), one
might infer that the legislature was thinking
of terms of imprisonment that are divided
into discrete blocks of time each period of
incarceration comprising a set or predictable
number of days, separated by periods of
freedom that are likewise of set or
predictable length and that occur at set or
predictable intervals.
Indeed, the only sentence of
periodic imprisonment that this court has
previously reviewed fit this model: the
defendant was ordered to spend six months of
each year in prison (from September 1st to
March 1st), allowing the defendant to be free
during the remaining six months of the year
to pursue commercial fishing or other
seasonal employment.5
The State takes this reasoning one
step farther and suggests that, in order to
distinguish a sentence of periodic
imprisonment from a furlough, we should
define periodic imprisonment to mean a
sentence that entails at least three periods
of incarceration and two intervening periods
of release. But this inference is
unwarranted. Assuming that the main
criterion of periodic imprisonment is the
predictability of the periods of
incarceration and release, a court could
satisfy this criterion by dividing the
defendants term of imprisonment into two
portions (not necessarily equal portions)
with one intervening period of freedom, so
long as the two periods of incarceration and
the interval of freedom were of set or
predictable lengths (thus making the interval
of freedom occur at a predictable time).
Aside from our rejection of the
States theory, we need not resolve the
precise definition of periodic imprisonment
to resolve the current litigation. As we
explain in more detail in the remainder of
this opinion, the actions of the district
court in these three cases exceeded the
courts lawful power to modify a previously
imposed sentence, regardless of the exact
definition of periodic imprisonment.
A sentencing courts power to modify a sentence after it
is imposed
As explained earlier, the Public Defender
Agency argues that the district court was
authorized to interrupt the three defendants
sentences because, under Criminal Rule 35(b), a
court is empowered to modify a defendants sentence
within 180 days after distribution of the courts
written judgement. The Agency contends that the
district court exercised this power in these three
appeals, modifying the defendants sentences to
sentences of periodic imprisonment.
To analyze this argument, we must briefly
examine the history of Criminal Rule 35(b).
Before 1978 (when the legislature enacted a
sweeping revision of the Alaska criminal statutes), a
former version of Criminal Rule 35(a) governed a courts
power to modify a sentence. Under that former rule, a
court could reduce a sentence within 60 days after it
was imposed, or within 60 days after the defendant
exhausted any appellate remedies.6 In mid-1978, the
supreme court extended this time limit to 120 days.7
But this power of sentence modification did
not authorize courts to supervise the placement and
treatment decisions made by the Department of
Corrections. The Alaska Supreme Court clarified this
issue in Rust v. State, 582 P.2d 134 (Alaska 1978), and
in its opinion on rehearing, 584 P.2d 38 (Alaska 1978).
In its initial Rust decision, the supreme
court declared that the executive branch of government
has primary responsibility for decisions concerning a
prisoners placement and treatment8, and thus a court
has no power to designate a particular correctional or
treatment facility as the place where the defendant
will serve their sentence.9 The supreme court
acknowledged that a court could intervene if the
executive branch demonstrated deliberate indifference
to a prisoners serious medical needs.10 But in its
opinion on rehearing, the supreme court clarified that
such issues could not be raised in a motion for
sentence modification under Criminal Rule 35(a):
We [hold] that Criminal Rule 35(a) is
not the appropriate procedural vehicle to
seek relief as to conditions within custodial
institutions or the civil rights of inmates.
Thus, all future proceedings [regarding Rusts
assertion that his treatment needs are not
being met] are to be conducted as if Rust
had instituted an independent civil action
seeking treatment for his dyslexi[a].
Rust, 584 P.2d at 39.
Then, in 1978, the landscape
changed when the Alaska Legislature enacted
AS 12.55.088. AS 12.55.088(a) gave courts
the power to modify or reduce a sentence at
any time during a [defendants] term of
imprisonment if ... conditions or
circumstances [had] changed since the
original sentencing hearing such that the
purpose of the original sentence [was] not
being fulfilled. According to the
legislative commentary, this statute was
designed to allow judges to intervene when
prison officials failed to pursue a prisoners
treatment or rehabilitative needs:
The thrust of this [statute] is to
provide for correction of demonstrable
inequities resulting from breakdowns in the
process of classifying prisoners.
Presently, after a defendant is
sentenced to imprisonment[,] he is classified
by a committee within the Division of
Corrections for placement, treatment, work[,]
and educational releases. If the sentencing
court determines that the defendant needs
alcohol rehabilitation treatment and
sentences the person with that in mind, the
classification committee may inadvertently
subvert that purpose by [its] decision for
placement or manner of treatment. Current
rules allow for a motion to modify sentence
in such circumstances only for a limited
period after the sentencing hearing. This
[statute] would grant such jurisdiction to
the court at any time during a term of
imprisonment if it finds that the change in
circumstances or conditions results in
subverting the intent of the original
sentence.
1978 Senate Journal, p. 1445.
In other words, AS 12.55.088
altered the rule established in Rust by
giving courts the authority to entertain a
motion to modify a defendants sentence of
imprisonment if the Department of Corrections
failed to offer the treatment or pursue the
rehabilitative efforts that the sentencing
judge had in mind when the sentence was
imposed. Two years later, the supreme court
enacted a new subsection (b) to Criminal Rule
35, incorporating the provisions of AS
12.55.088 into the criminal rules.11
In 1982, the legislature attempted
to cut back on the scope of AS 12.55.088 by
amending the statute to specify that a
defendants motion to modify their sentence
had to be filed within 60 days of the
original sentencing (rather than at any time
during a term of imprisonment). The
legislative commentary to this amendment
indicated that the legislature was attempting
to rescind the policy it enacted in 1978 the
policy of allowing courts to modify a
sentence at any time during a defendants term
of imprisonment in response to classification
decisions made by corrections officials:
Given the fact that in felony cases there is
frequently a delay between conviction and
sentencing of between six weeks and six
months, [a delay that is intended to allow]
all pertinent factors to be collected and
prepared for argument by both the defense and
the prosecutor, and that a complete
sentencing report prepared by the division of
corrections must be considered by the
superior court judge, a two[-]month period is
sufficient to allow for a modification of the
sentence.
Commentary and Sectional Analysis for the
1982 Amendments to Alaskas Law on Criminal
Law and Procedure and the Revised Criminal
Code, 1982 House Journal, Supp. No. 64 (June
2nd), p. 20.
The legislatures statement that 60
days was long enough for the court to do a
proper job, given the thorough process that
generally precedes a criminal sentencing
indicates that the legislature wanted the
courts to perform a much narrower job than
had been assigned to the courts under the
prior law. Sixty days might arguably be a
reasonable amount of time to reconsider a
sentencing decision, but it is obviously
inadequate to allow the court to monitor and
respond to Department of Corrections
decisions regarding placement and treatment
of the defendant. This leads us to conclude
that the legislature no longer wanted the
courts to perform that function.
The legislature passed the amended
statute, but the law did not change. As
explained above, the 1982 version of Criminal
Rule 35(b) by this time contained language
that paralleled AS 12.55.088; thus, the
legislature needed to amend both the statute
and Criminal Rule 35(b). To amend the court
rules, the legislature must achieve a two-
thirds majority12, and the 1982 amendment to
AS 12.55.088 failed to attract this majority.
Thirteen years later, however, the
legislature successfully amended the law
relating to sentence modification. In SLA
1995, ch. 79, 29-31, the legislature enacted
a new version of Criminal Rule 35. Criminal
Rule 35(a) was redrawn to limit its scope to
the correction of illegal sentences13, and
the pertinent language of Criminal Rule 35(b)
subsection (b)(1) was revised to read: The
court ... may modify or reduce a sentence
within 180 days of the distribution of the
written judgment upon a motion made in the
original criminal case[.]14
Although the legislature chose an
expanded time limit of 180 days rather than
the 60-day limit it had favored in 1982, it
appears that the legislatures 1995 reworking
of the statute was motivated by the same
policy as the failed 1982 amendment: to
deprive courts of the ongoing authority to
monitor Department of Corrections treatment
and placement decisions throughout a
defendants term of imprisonment. This is
demonstrated not only by the 180-day time
limit, but also by the legislatures
concurrent enactment of two new provisions
Criminal Rule 35(b)(4) and (b)(5) that
remove or restrict a courts authority to
modify or reduce a sentence imposed in
accordance with a sentencing agreement.15
Criminal Rule 35(b)(4) prohibits a
court from modifying a sentence that has been
imposed pursuant to a sentencing agreement
that placed a cap on the defendants sentence,
while Criminal Rule 35(b)(5) prohibits a
court from reducing a sentence below the
minimum sentence negotiated in a sentencing
agreement. Since these restrictions apply
regardless of whether the Department of
Corrections treatment and placement decisions
comport with the sentencing courts wishes or
recommendations, it follows that the
legislature no longer wished the courts to
monitor these decisions or respond to them.
One could argue, perhaps, that the
legislature still wished to give courts a 180-
day window to respond to Department of
Corrections placement or treatment decisions
in cases where the defendants sentence is not
the result of a sentencing agreement. But
there appears to be no rationale for such a
rule no reason why the legislature would
want the courts to have the power to react to
Department of Corrections classification
decisions in the one instance and not the
other. We therefore conclude that the
legislature has rescinded the authority it
granted to the judiciary in 1978 when it
enacted the initial version of AS 12.55.088.
This, of course, does not prevent
prisoners from exercising the right
recognized in the Rust opinion on rehearing
the right to sue the Department of Correc
tions if the Department fails to address a
prisoners serious medical needs. But with
regard to motions for sentence modification
under Criminal Rule 35(b), the legislature
has apparently reinstated the rule announced
by the supreme court in Rust: Rule 35(b) is
not the appropriate procedural vehicle to
seek relief from placement or treatment
decisions of the Department of Corrections.16
Even during the 180 days in which a court may modify a
sentence, the courts decision to modify a sentence
and impose periodic imprisonment must be based on
the Chaney criteria the sentencing criteria now
codified in AS 12.55.005
In State v. Couch, 991 P.2d 1286 (Alaska App.
1999), this court acknowledged that Criminal Rule
35(b) was designed to allow a sentencing judge to
reconsider and potentially reduce a criminal
sentence for a limited period of time, but we
declared that Rule 35(b) was not designed to allow
a trial judge to grant a furlough to a prisoner
because furloughs are within the authority of the
Department of Corrections, not the courts.17 The
problem, of course, is to distinguish furloughs
from the intervals of liberty that occur during a
sentence of periodic imprisonment.
We have already rejected the States
suggestion that a sentence of periodic
imprisonment must have at least two intervals of
liberty and three intervals of imprisonment.
Thus, a sentence of periodic imprisonment might
consist of two periods of imprisonment separated
by one interval of freedom. What, then,
distinguishes the interval of release in a
sentence of periodic imprisonment from the
interval of release that is granted under the name
furlough?
The obvious answer is that furloughs are
granted by officials of the Department of Corrections,
while sentences of periodic imprisonment are granted by
judges. Although this answer might seem to be of
little help, it does in fact assist our analysis of the
district courts actions in the present appeal because
a judges duties are different from the duties of
corrections officials.
Both the supreme courts decision in Rust and
this courts decision in Couch are premised on the legal
doctrine that, once a defendant has been sentenced and
committed to the custody of the executive branch, the
executive branch assumes primary responsibility for the
custody and care of the prisoner. It is the executive
branch that decides where the prisoner is to be housed,
what treatment programs will be offered to the
prisoner, and whether and when the prisoner will be
released on a furlough of any type. Rust explicitly
holds that judges are forbidden from using a motion for
sentence modification under Criminal Rule 35 as a
procedural vehicle for scrutinizing and second-guessing
these executive branch decisions.
Criminal Rule 35(b) does not allow judges to
reconsider executive branch decisions. Rather,
Criminal Rule 35(b) authorizes judges to reconsider
judicial branch decisions i.e., their own prior
sentencing decisions. Thus, when a judge grants a
sentence modification or reduction under Criminal Rule
35(b), the judges decision must be based on the
sentencing criteria first announced in State v.
Chaney18 and now codified in AS 12.55.005.19
When a judge modifies a defendants sentence
under Criminal Rule 35(b), changing the sentence to a
term of periodic imprisonment and thereby granting the
defendant an interval of release from custody, the
judges action will be proper if the judges order is
premised on, and structured to serve, the codified
sentencing goals. If, however, the judge is simply
responding to a defendants ad hoc needs, or if the
judge assumes the role of arbiter in a dispute between
the defendant and the Department of Corrections
regarding custody, placement, or treatment, then the
judges action infringes on executive branch
prerogatives and the defendants interval of release
will constitute an unauthorized furlough.
As this court recognized in State v. Tinsley,
928 P.2d 1220 (Alaska App. 1996), Criminal Rule 35(b)
allows a sentencing judge [180 days] to reconsider and
potentially reduce [or modify] a criminal sentence.
This authority can be exercised even when there is no
reason to reduce [or modify] the sentence other than
the judges decision to reconsider and show mercy.20
Nevertheless, a court must not intrude on the authority
of the Department of Corrections, an agency of a co-
equal branch of government. That is, a court is
empowered to modify a sentence based on the Chaney
criteria, but not to simply interrupt the sentence to
address a prisoners short-term needs.
This interpretation is supported by the
legislative history of Criminal Rule 35(b), which we
detailed in the previous section of this opinion. This
history indicates that Criminal Rule 35(b) was intended
only to give courts a reasonable opportunity to revisit
the original sentencing decision, rather than to allow
courts to address a prisoners changing needs. This
history further indicates that the legislature did not
intend for courts to use Criminal Rule 35(b) to grant
ad hoc releases to prisoners so they can attend to
personal business or personal needs, even when a short
release could arguably serve some rehabilitative
purpose.
These conclusions are also supported by the
language of the rule itself. Although the current
version of Criminal Rule 35(b) gives courts 180 days to
modify a sentence, the fact that the court must act
within 180 days suggests that the legislature did not
design Criminal Rule 35(b) to allow courts to
accommodate a prisoners short-term personal needs. It
is true, as the Public Defender Agency points out in
its brief, that prisoners will sometimes have to deal
with sick children, unreliable or disappearing day
care, lost loan payments, distraught family members,
and other crises of daily life. The Public Defender
Agency suggests that these crises can constitute a
proper rationale for judicial intervention, to insure
that the defendants sentence [is] equitable and not an
excessive imposition or punishment. But such
emergencies are not confined to the initial six months
following the distribution of the judgement. It seems
unlikely that the legislature intended Criminal Rule
35(b) to empower courts to act as an ombudsman for the
first six months of a defendants sentence, then leave
defendants without recourse for these same problems
during the remainder of their sentence.
Thus, both the history and the language of
Criminal Rule 35(b) lead us to conclude that the rule
was not designed to allow courts to interrupt a
sentence by granting a leave of absence for the
convenience of the prisoner. Rather, the rule was
designed to give sentencing judges one opportunity,
within a six-month window, to reconsider and
potentially reduce a criminal sentence based on a re-
evaluation of the Chaney criteria.21
This is not to say that courts have no
authority to modify a defendants sentence to a term of
periodic imprisonment; this action is expressly
authorized by Criminal Rule 35(b) and AS
12.55.015(a)(3). But a sentence reduction or
modification under Criminal Rule 35(b) is, in effect, a
second sentencing. Just as the court was obliged to
base the defendants original sentence on the sentencing
criteria codified in AS 12.05.005, so too the court
must base any modification or reduction on these same
criteria.
Moreover, the legislature has expressed its
intention that courts should resort sparingly to
sentences of periodic imprisonment.22 This directive
is further support for the conclusion that the
legislature intended any sentence of periodic
imprisonment to be premised on an overall evaluation of
the defendants history, conduct, and circumstances in
light of the sentencing goals codified in AS 12.55.005.
Periodic imprisonment should be integral to the
defendants sentence. Such a sentence should be
employed as a method for achieving defined sentencing
goals not as a method for granting defendants a
weekend pass.
A contrary reading of Criminal Rule 35(b)
one that permitted courts to grant ad hoc leaves of
absence in the name of periodic imprisonment would
frustrate the separation of powers recognized by the
supreme court in Rust. The legislature has vested the
Department of Corrections with authority over the day-
to-day management of prisoners the selection of the
facility where they will be housed, the selection of
treatment programs offered to them, and the decision of
whether and when to grant them furloughs. With respect
to furloughs, the legislature and the Department of
Corrections have enacted statutes and regulations that
comprehensively govern furloughs based on (1) a
prisoners rehabilitative, treatment, and personal
needs, (2) the prisoners level of dangerousness, and
(3) the ability of the Department to adequately
supervise the prisoners release.23 Allowing dozens of
judges to intervene intermittently and unpredictably in
this process would make it difficult for the Department
of Corrections to carry out its mandate fairly and
consistently, and this type of judicial intervention
might inadvertently expose the public to unacceptable
risk.
Our analysis of the district courts actions in the
three cases before us
Now that we have clarified the power of a
court to reduce or modify a sentence under Criminal
Rule 35(b), we turn to the three cases before us.
The Felix appeal.
Magistrate Hammers granted Jolene Felix two
short releases from jail: on November 30, 2000, so
that she could attend a screening interview required
for her enrollment in the Tanana Chiefs Old Minto
Recovery Camp, and again on December 21, 2000, so that
she could obtain a physical examination required for
that same program. On both occasions, Felixs attorney
urged Magistrate Hammers to portray his orders as a
modification of Felixs sentence to a term of periodic
imprisonment. But the magistrate declined to ground
his orders on Criminal Rule 35(b). Instead, he
declared that he was issuing these orders in the
interest of fairness.
We hold that the magistrate exceeded his
authority in both instances. A judge may not rely on
general principles of fairness to grant a prisoner a
short release from custody after they have commenced
serving their sentence. Nor can we accept the Public
Defender Agencys argument that the magistrates actions
should be upheld as an implicit modification of Felixs
sentence to one of periodic imprisonment under Criminal
Rule 35(b). First, the magistrate entertained two
separate applications from Felix for similar relief
(temporary release from prison so that she could attend
appointments that were prerequisites to her entry into
the Old Minto Recovery Camp). Rule 35(b)(2) apparently
bars the magistrate from doing that. But more
importantly, both of Felixs releases were clearly ad
hoc releases expressly designed to allow Felix to
pursue her own desired treatment program in preference
to the programs that the Department of Corrections
might offer her in jail or might allow her to attend on
furlough.
Magistrate Hammers ordered Felix released
from jail for a third and final time on December 27th.
He directed her to travel directly to the Old Minto
Recovery Camp and remain there until she successfully
completed the treatment program. The magistrate
declared that this final release was justified because,
as the sentencing judge, he had the authority to
require that the balance of Felixs term of imprisonment
be spent at the Old Minto Recovery Camp. This was not
true. The Alaska Supreme Court expressly held in Rust
v. State that a court does not have the power to direct
that a defendants sentence be spent at any particular
facility.
We should point out, however, that there was
an available sentencing alternative that would have
allowed Magistrate Hammers to accomplish something
similar to what he was trying to do when he ordered
Felixs final release from custody on December 27th.
Assuming that the Tanana Chiefs had been willing to
interview and examine Felix at the jail (and that they
then accepted Felix into their program), Magistrate
Hammer would have been authorized under Criminal Rule
35(b) to modify Felixs sentence to allow her take
advantage of the Old Minto Recovery Camp not by
imposing periodic imprisonment, but rather by
suspending the balance of her sentence and requiring,
as a condition of probation, that she attend and
successfully complete the Old Minto program. Assuming
that Felix successfully completed the program and
complied with any other conditions of probation, she
would not have to serve the remainder of her sentence.
The Fain appeal.
Judge Burbank released Pamela Fain for four
days in the middle of her sentence so that she could
arrange child care for her son. This was an improper
use of Criminal Rule 35(b), for the reasons we have
explained above.
The Buchanan appeal.
Judge Wood released Buchanan for 3 hours in
the middle of his sentence so that he could attend to
personal business. Again, this was an improper use of
Criminal Rule 35(b).
Judge Wood stated that he felt obliged to
honor Buchanans request because he had promised
Buchanan a short period of bail release to give
Buchanan some time to put his affairs in order before
he commenced serving his sentence. This promise never
came to fruition because Buchanan could not produce a
suitable third-party custodian. But once Buchanan
commenced service of his sentence, Judge Wood lost the
authority he had earlier possessed to allow Buchanan a
few hours of conditional liberty on bail release.
Conclusion
For the reasons explained here, the sentence
modifications ordered by the district court in these
three cases are REVERSED.
COATS, Chief Judge, dissenting.
I write separately because I am concerned
that this courts decision will be interpreted too
narrowly and unduly restrict a trial courts authority
to do justice in individual cases.
We can say some key things with relative
certainty in this area of the law. Under Criminal Rule
35(b), courts have 180 days from the time of sentencing
to modify a sentence. Courts also have the authority,
under AS 12.55.015(a)(3), to impose a periodic
sentence. The statute does not define periodic
imprisonment, but, as an example, the commentary to the
Alaska revised criminal code provides, serving a prison
term on weekends.1 The commentary recognizes that some
circumstances warrant periodic sentences but urges
sentencing courts to impose them sparingly because of
the administrative burdens they create for correctional
institutions.2 The tentative draft to the revised
criminal code expressly provided that a court should
impose a periodic sentence only if doing so would serve
the purposes of sentencing (set out elsewhere in the
statute).3 The draft commentary gives this example of
a circumstance justifying a periodic sentence: the
impact that serving a continuous 10-day mandatory
sentence for [DWI] could have on a young person in the
senior year of high school might well be
disproportionate if the offender was required to repeat
the entire school year as a result of missing too many
school days or exams.4
From this body of law, it is fair to conclude
that the legislature did intend for courts to use their
power to impose periodic sentences sparingly to avoid
putting an undue burden on the Department of
Corrections, which has primary responsibility for
sentenced prisoners. The Department of Corrections has
its own furlough program that may very well adequately
address most of prisoners needs. But this court has
little information about how the Department of
Corrections manages its furlough program. And, as long
as judges use their power to modify sentences and to
impose periodic sentences sparingly, I believe that
this power is a valuable tool in allowing courts to
impose just sentences. I would therefore allow courts
wide flexibility. Consequently, I would define a
periodic sentence merely as a sentence that is
interrupted in some way.
The example of a periodic sentence in the
tentative draft of the revised criminal code provides a
good example. A young woman in her senior year of high
school is convicted of driving while intoxicated and
faces a mandatory term of imprisonment. The judge
should be able to sentence her to jail while
structuring her sentence so she is able to take her
final exams.
As a practical matter, the flexibility to
impose periodic sentences allows courts to sentence
offenders to jail while still meeting an offenders
critical needs. Without this flexibility, a court
might have to choose between imposing a shorter
sentence that does not adequately reflect the
defendants conduct and a longer sentence that would
cause disproportionate harm by, for example, preventing
a high school senior from taking final exams. Another
example is a commercial fisher who must support a
family during a short fishing season. Certainly a
court should have the authority to sentence the
offender to a sentence of imprisonment but to fashion
the sentence so that the offender is released to fish
during the short season.
Now I am fairly certain that my colleagues
would agree that a court has the authority to impose a
sentence that would enable the high school senior to
take her exams or the commercial fisher to pursue his
livelihood. But I am concerned that the courts opinion
will be read too narrowly to unduly erode the
flexibility of courts to sentence.
For instance, in the case of Pamela Fain, the
record is inadequate for us to review the trial courts
decision. Fain asked for release so that she could
arrange for child care for her son and make a doctors
appointment for him. For all we know, these matters
were true emergencies and Fain had no alternative but
to attend to these matters herself for the welfare of
her child. We do not know if the Department of
Corrections could have responded to these needs. If a
temporary release to take care of emergency matters was
not available, the court had the authority to modify
Fains sentence to provide for her immediate release.
To me, it seems wiser to allow the court the
flexibility to temporarily release Fain to deal with an
emergency. I could make similar arguments for the
other releases this court is reviewing. The point is
that I want courts to have a great deal of flexibililty
to respond to emergency or difficult situations. And I
do not believe the law prevents this.
That having been said, I agree with the
majority that the power to impose periodic sentences is
one that the legislature has told courts to use
sparingly. Furthermore, I agree that the primary
authority and responsibility for sentenced prisoners
lies with the Department of Corrections and courts
should fully consider the Departments primary authority
and the administrative burden that the courts
sentencing orders might impose.
The problem with the cases we have been asked
to review is that the record does not show that the
courts in question were using their power to impose
periodic sentences sparingly and that they were
considering the impact of the orders on the Department
of Corrections. In my view, if these cases were not
moot, I would remand the cases back to the trial court
for reconsideration. My concern is that, by simply
saying that the court orders in these cases were not
authorized, this court could be interpreted as unduly
restricting the authority of courts to impose or modify
sentences in unusual situations where justice calls for
courts to show flexibility in sentencing.
_______________________________
1 See State v. Couch, 991 P.2d 1286, 1287 (Alaska App. 1999)
(applying this exception to the mootness doctrine in similar
circumstances).
2 See AS 12.55.015(a)(3)-(4). See also AS 12.55.086(a),
which draws the same distinction.
3 Websters New World Dictionary of American English (Third
College Edition, 1988), p. 1004.
4 1978 Senate Journal, Supp. 47 (June 12th), p. 149.
5 See Whittlesey v. State, 626 P.2d 1066, 1067 (Alaska
1980).
6 The text of former Criminal Rule 35(a) is quoted in Thomas
v. State, 592 P.2d 1248, 1249 n.1 (Alaska 1979).
7 See Supreme Court Order No. 319 (effective August 16,
1978).
8 See Rust, 582 P.2d at 137.
9 See id. at 137-38.
10 See id. at 140-43.
11See Supreme Court Order No. 426 (effective August 1,
1980).
12See Alaska Constitution, Art. IV, 15.
13See SLA 1995, ch. 79, 29.
14SLA 1995, ch. 79, 30.
15See SLA 1995, ch. 79, 30.
16Rust, 584 P.2d at 39.
17Couch, 991 P.2d at 1289.
18 477 P.2d 441, 443-44 (Alaska 1970).
19 AS 12.55.005 states:
The purpose of this chapter is to provide the means for
determining the appropriate sentence to be imposed upon
conviction of an offense. The legislature finds that the
elimination of unjustified disparity in sentences and the
attainment of reasonable uniformity in sentences can best be
achieved through a sentencing framework fixed by statute as
provided in this chapter. In imposing sentence, the court
shall consider
(1) the seriousness of the defendants present offense in
relation to other offenses;
(2) the prior criminal history of the defendant and the
likelihood of rehabilitation;
(3) the need to confine the defendant to prevent further
harm to the public;
(4) the circumstances of the offense and the extent to which
the offense harmed the victim or endangered the public
safety or order;
(5) the effect of the sentence to be imposed in deterring
the defendant or other members of society from future
criminal conduct;
(6) the effect of the sentence to be imposed as a community
condemnation of the criminal act and as a reaffirmation of
societal norms; and
(7) the restoration of the victim and the community.
20 Tinsley, 928 P.2d at 1223 (citing Thomas v. State, 566
P.2d 630, 639 n.34 (Alaska 1977)) (both cases construing the
predecessor rule, a prior version of Criminal Rule 35(a)).
21 Couch, 991 P.2d at 1289.
22 See the Commentary to AS 12.55.015, 1978 Senate
Journal, Supp. No. 47 (June 12th), p. 149:
[AS 12.55.015(a)(3)] recognizes [the] judicial power [to
impose] periodic imprisonment ... , such as serving a prison
term on weekends. While periodic sentences may pose
administrative problems for correctional institutions and
should be imposed sparingly, there are occasions which
warrant such a sentence.
23 See AS 33.30.101 181 and 22 AAC 05.310 326; see also
22 AAC 05.121(j)(12) (clarifying that a prisoner released on
furlough is still within the custody of the Department of
Corrections and subject to the departments supervision).
1 See Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 149 (June 12, 1978); see also State
v. Brinkley, 681 P.2d 351, 355 (Alaska App. 1984)
(describing sentence served on three-day weekends every
other weekend for two years as a periodic sentence).
2 See Commentary to the Revised Criminal Code, Senate
Journal Supp. No. 47 at 149.
3 See Alaska Revised Criminal Code, Part VI at 61 (Tentative
Draft, February 1978).
4 Alaska Revised Criminal Code, Part VI at 68 (Tentative
Draft Commentary, February 1978).
