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Frank v. State (08/27/2004) ap-1948

                              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
        KEVIN HOWARD FRANK, )
                                                        ) Court of Appeals No. A-8579 Appellant,
                                                         ) Trial Court No. 3KO-01-319 Civ
                                                         )
                                                     v. )
                                                        ) O P I N I O N
                   STATE OF ALASKA, )
                                                         )
                                         Appellee. ) [No. 1948 — August 27, 2004]
                                                        )

Appeal from the Superior Court, Third Judicial District, Kodiak, Sen K. Tan, Judge.
          
Appearances:  Sharon Barr, Assistant Public Defender, Anchorage, J. Jake Ketscher, 
Assistant Public Defender, Kodiak, and           
Barbara K. Brink, Public Defender, Anchorage, for the Appellant.            
Marilyn J. Kamm, Assistant Attorney General, and Gregg D.           
Renkes, Attorney General, Juneau, for the Appellee. 
          
Before:  Coats, Chief Judge, and Mannheimer and Stewart,           

Judges. 

MANNHEIMER, Judge.

          Kevin Howard Frank is serving a life sentence for first-degree murder.  
(Frank's conviction and sentence were imposed under Alaska's pre-1980 
criminal code.)  In 2001, after serving more than 20 years of his sentence, 
Frank applied for discretionary parole.  The Parole Board denied his 
application and ordered that he could not re-apply for parole until he had 
served another 10 years. 

          AS 33.16.130(c) declares that when the Alaska Parole Board denies 
a prisoner's application for discretionary parole, the Board "shall issue its 
decision in writing and [shall] provide the basis for [its] denial of 
discretionary parole".  In Frank's case, the Parole Board issued its decision 
in a one-page form document that contains a checklist of nine generic 
reasons for denying parole; the Board checked off five of these reasons.  
We conclude that most of these five listed reasons are not sufficiently 
specific to comply with the statutory mandate that the Board "provide the 
basis" for its decision.  We therefore direct the Board to give more specific 
reasons for its decision to deny Frank's application for discretionary parole.  

     Underlying facts

          In September 1979, Frank robbed a taxi driver and shot him to death.  
Following his arrest, Frank claimed that he had been in an alcoholic blackout 
and that he remembered nothing of these events.  Despite this claim, 
Frank was convicted of first-degree murder (intentional homicide during the 
commission of a robbery).(1)

            During the first 17 years of Frank's imprisonment, he abused alcohol 
and drugs, he was repeatedly disciplined for violating prison regulations, 
and he was involved in several incidents of violence.  Then, beginning in 
1997, Frank started to regularly attend the meetings of Alcoholics 
Anonymous.  He took on a leadership role at the AA chapter in the Lemon 
Creek Correctional Facility, and he apparently stopped using drugs.  (At the 
time of his parole hearing in August 2001, Frank had not had a "dirty" 
urinalysis since 1997.) 

          Frank also developed an ongoing relationship with a Juneau family 
through a prison visitation program.  In addition, Frank developed skill 
(and some reputation) as a carver of Tlingit art.  He taught carving workshops 
at Lemon Creek, and he sold some of his pieces, thus acquiring supporters 
outside the prison.  

          However, Frank's post-1997 conduct was not spotless.  In 2000, 
Frank was disciplined for violating prison rules relating to outside bank 
accounts and the sale of prisoner-made artifacts.  In addition, Frank was 
disciplined when a small home-made knife and two knife blades were 
iscovered among his personal supplies in the wood carving shop.  
(It was forbidden for prisoners to make or possess their own knives.) 

          At about the same time that the knife and knife blades were 
discovered, a confidential informant told prison authorities that Frank 
had threatened to stab the Lemon Creek superintendent and a corrections 
sergeant.  Frank was placed in administrative segregation while this 
allegation was investigated.  He was released 30 days later, after 
corrections officials apparently concluded that the allegation was not 
substantiated.   

          In March 2001, Frank submitted his application for discretionary 
parole.  His application included letters of support from members of the 
community, from members of his AA support group, and from the Haida 
Corporation.  It also included certificates attesting to his completion of 
prison education and therapy programs.  

          Pursuant to AS 33.16.110, Probation Officer Jeanne Fischer prepared 
a pre-parole report on Frank's offense and his institutional record and 
progress.  Fischer reported that, under Department of Corrections guidelines, 
Frank should serve a minimum of 210 months (i.e., 17½ years) before being 
released on discretionary parole.  Although Frank had already served 243 
months (i.e., approximately 3 years more than the minimum imprisonment 
specified in the guidelines), Fischer recommended that Frank not be offered 
parole for another 19 years.  In support of this recommendation, Fischer 
cited the seriousness of Frank's crimes, the questions surrounding his 
progress toward rehabilitation, and the potential risk to the public safety 
if he were released. 

          On August 14, 2001, the Parole Board heard Frank's application for 
parole.  Both Frank and Fischer were present, and they answered questions 
from Board members. 

          One of the subjects raised at the hearing was the allegation that 
Frank had threatened to harm the prison superintendent.  One particular 
Board member asked several questions about this incident.  Frank denied 
that he had ever threatened the superintendent, and Officer Fischer 
explained that no evidence had been found to support the allegation, other 
than the confidential informant's initial tip.  Fischer told the Board, "[Frank] 
stayed in seg[regation] until the superintendent felt comfortable and 
allowed [him] to go back into [the general] population.  There really 
wasn't any more evidence that [Frank] did or did not make those threats."  
After listening to Frank's and Fischer's answers, the Board member stated 
that he "accept[ed] that, on the record".  

          Soon after the hearing adjourned, the Parole Board issued its written  
decision:  they refused to release Frank on parole, and they ordered that 
Frank could not re-apply for parole until he had served another 10 years in 
prison. 

          Frank sought reconsideration of this decision, filing a lengthy written 
statement in which he asserted that Fischer, motivated by personal enmity 
toward him, had misrepresented his institutional record.  The Board 
re-affirmed its previous decision (without amplifying the grounds for that 
decision).   

     The Parole Board's written decision

          The document issued by the Parole Board looks like this 
(with the text in italics representing the portions that were filled in by hand): 

On August 14 , 200 1 the Alaska Board of Parole met in full session at L.C.C.C. .

     Why we conclude that the Board's written decision does not satisfy the 
mandate of AS 33.16.130(c)

          As we explained earlier in this opinion, AS 33.16.130(c) states that 
when the Parole Board denies a prisoner's application for discretionary 
parole, the Board "shall issue its decision in writing and [shall] provide 
the basis for [its] denial of discretionary parole".  In other words, the 
Parole Board  must specify the basis (or bases) for its decision in writing. 

          In the present case, the Board issued its decision in writing, but it 
is difficult to discern the basis for the Board's decision from that writing.  

          The written decision states that "aggravating factors are present 
which prompt[ed] the Board to go above the guidelines in denying 
[Frank's] parole".  But the written decision fails to specify these factors.  

          The written decision also states that "[t]he Board felt that additional 
time [in prison] ... would allow [Frank] to formulate a realistic and firmly 
based release plan".  But the Board did not specify the ways in which it 
believed that Frank's release plan was deficient.  We note, in particular, 
that the Board did not check the box on the pre-printed form that says, 
"The Board had substantial concerns about [the] release plan that was 
presented to them at the hearing." 

          Next, the written decision states that "[t]he Board felt that additional 
time incarcerated would allow [Frank] the possibility of taking advantage 
of treatment [or] training [or] education programs that are available within 
the institution."  This is stated so generically that it amounts to a truism.  
If Frank remains in prison, he of course can take advantage of the 
programs offered there.  But Frank presented evidence that he had completed 
several programs.  The Board's written decision fails to specify what 
additional treatment, training, or education the Board believed was needed 
or advisable. 

          The written decision then states that "[t]he Board has noted factors 
regarding [Frank's] institutional behavior."  Apparently, the Board 
concluded that these factors militated against parole release.  However, 
the written decision does not specify the factors that the Board considered.  
Instead, the written decision states merely that "[these factors] may have 
included ... major infractions, disciplinary actions, poor [or] no institutional 
work history, poor [or] no program participation, or criminal behavior during 
incarceration". 

          It is hard to deduce what the Board is referring to here.  Again, the 
written decision lists various factors, but then declares that the Board may 
not have relied on these listed factors in reaching its decision.  The written 
decision states only that these listed factors "may have [been] included" 
among the facets of Frank's institutional behavior that the Board 
considered.  
 

         Even focusing on the listed factors, the basis of the Board's decision 
is not clear.  For the four years preceding Frank's parole application, his 
institutional work history and program participation were apparently excellent.  
On the other hand, Frank apparently committed infractions and was subjected 
to disciplinary actions during his term of imprisonment, even during the same 
four years when his work history and program participation were good.  

          The Board's lack of specificity on this subject is particularly troubling 
because of the controversy surrounding Frank's alleged threat against the 
superintendent of Lemon Creek.  As explained above, Frank was put into 
administrative segregation after a confidential informant alleged that Frank 
had threatened to stab the superintendent.  But Frank was released when 
Corrections authorities were unable to substantiate this allegation.  At the 
parole hearing, Frank denied that he had threatened the superintendent, and 
Officer Fischer told the Parole Board that there was no evidence to support the 
allegation, beyond the informant's tip itself.  

          One of the Parole Board members apparently stated that he was 
satisfied that there was no proof that Frank had threatened the superintendent.  
But the other three members of the Board expressed no opinion on this issue.  
We have no way of knowing whether these other three members took a different 
view of the matter.  And we note that the Board never declared that it would
 ignore the allegation when making its decision. 

          Finally, aside from the lack of specificity that we have identified in 
these various portions of the Board's written decision, we note that the 
entire checklist on the pre-printed form is introduced by the language, 
"The Board based [its] decision in part on the following ... factors".  In 
other words, the Board's written decision clearly implies that the Board 
had other, completely unspecified reasons for denying Frank's parole 
application (and for prohibiting him from re-applying for another 10 years).

          AS 33.16.130(c) requires the Board to specify the basis for its denial 
of discretionary parole.  We construe this statutory mandate to mean that 
the Board must describe its reasons in sufficient detail that inmates can 
understand in what respects they have fallen short — so that inmates can 
guide their future behavior, and so that they can prepare more satisfactory 
future applications for parole.  In addition, the Board must describe the 
reasons for its decision in sufficient detail to allow meaningful judicial 
review — so that reviewing courts can determine whether parole has been 
denied for an impermissible reason. 

          We acknowledge that, under 22 AAC 20.170(d), the Parole Board 
"is not required to make any findings of fact or conclusions of law 
regarding any item or document in an applicant's file nor relate them to 
the board's release criteria."  This regulation appears to be based on a 
passage from the United States Supreme Court's decision in Greenholtz 
v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 
S.Ct. 2100, 60 L.Ed.2d 668 (1979): 
           
	[W]e find nothing in the due process concepts as they have           
	thus far evolved that requires the Parole Board to specify the          
	particular "evidence" in the inmate's file or at his interview on           
	which it rests the discretionary determination that an inmate          
	is not ready for conditional release.  The Board           
	communicates the reason for its denial as a guide to the           
	inmate for his future behavior.  ...  To require the parole           
	authority to provide a summary of the evidence would tend           
	to convert the process into an adversary proceeding and to           
	equate the Board's parole-release determination with a guilt           
	determination.  ...  [T]he parole-release decision is ...           
	essentially an experienced prediction based on a host of           
	variables.  ...  The Board's decision is much like a sentencing           
	judge's choice ... to grant or deny probation following a           
	judgment of guilt, a choice never thought to require more than           
	what Nebraska now provides for the parole-release           
	determination.  ...  The Nebraska procedure affords [the          
	 inmate] an opportunity to be heard, and when parole is denied          
	 it informs the inmate in what respects he falls short of           
	qualifying for parole[.]  The Constitution does not require           
	more.

Greenholtz, 442 U.S. at 15-16, 99 S.Ct. at 2108.   

          To the extent that 22 AAC 20.170(d) embodies this rule — that is, to 
the extent that the regulation exempts the Parole Board from expressly 
resolving all of the issues of fact raised by the parole application, or from 
explaining how the Board viewed each piece of information or assessed its 
relevance to the parole decision — the regulation is a valid exercise of the 
executive branch's rule-making authority.  But we must not interpret 22 
AAC 20.170(d) as abrogating the Parole Board's statutory duty to explain 
the basis for its decision.   

          A regulation must be consistent with the statute it interprets or 
implements(2).  To the extent that a regulation is inconsistent with statutory 
law, the executive branch agency that promulgated the regulation has 
exceeded the rule-making power delegated by the legislature(3).  Thus, 
"when a regulation conflicts with a statute, it is the regulation that must 
yield."(4)  

          Accordingly, we conclude that 22 AAC 20.170(d) does not exempt 
the Parole Board from the duty imposed by AS 33.16.130(c) — the duty to 
specify its reasons for denying an application for discretionary parole. 

          The Board's written decision in Frank's case is not sufficiently specific 
to allow us to discern the reasons for the Board's decision, nor is it 
sufficiently specific to allow Frank to guide his future behavior or draft 
future parole applications that might satisfy the Board's concerns.  The 
written decision therefore fails to comply with AS 33.16.130(c).  As a 
consequence, we must direct the Board to issue a revised written decision, 
one that complies with the governing statute.  

     Frank's other claims
  

        Frank contends that the Parole Board denied him due process of law by 
failing to adequately specify the grounds for its decision(5).  Because we 
have concluded that this same lack of specificity constituted a violation of 
AS 33.16.130(c), Frank's due process claim is moot.

          Frank raises several other issues in this appeal.  
 

         Frank contends that current Alaska parole law violates the Alaska
 Constitution's guarantee of due process of law because prisoners have no 
right to call witnesses on their behalf at parole application hearings, and 
because indigent prisoners have no right to counsel at public expense to 
represent them in these hearings.  These contentions were not raised in 
Frank's petition for post-conviction relief.  

         Frank also contends that the Parole Board violated his right to due 
process by relying on information obtained from an unidentified confidential 
informant, without allowing Frank to confront this informant.  This claim 
was likewise not raised in Frank's petition for post-conviction relief.  
  

        Frank asserts that the Parole Board failed to consider the goals of penal 
administration set forth in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), 
and now codified in AS 12.55.005.  While these goals govern sentencing in 
criminal cases, it is not clear to us that the Chaney goals govern the Parole 
Board's decision to grant early discretionary release to a sentenced prisoner.  
In any event, these goals appear to be encompassed by AS 33.16.100(a) and
22 AAC 20.335(c)(6).  And finally, this claim, too, was not raised in 
Frank's petition for post-conviction relief.  

          Accordingly, we decline to address these points further. 
 

    Conclusion

          Because the Parole Board's written decision lacks the specificity 
required by AS 33.16.130(c), we direct the Parole Board to issue a revised 
decision which adequately explains its reasons for denying Frank's 
application for parole.  After the Board issues its revised decision, Frank 
may re-open his petition for post-conviction relief.

          We do not retain jurisdiction over this case.  

1    See Gray v. State, 463 P.2d 897, 902-03 (Alaska 1970) (explaining that,
under Alaska’s former criminal code, first-degree murder required proof
that the killing was intentional, and that the killing was done either with
premeditation or "by means of poison, or in perpetrating or in attempting
to perpetrate, rape, arson, robbery, or burglary").

2    Vail v. Coffman Engineers, Inc., 778 P.2d 211, 214 (Alaska 1989).

3    State v. Kenaitze Indian Tribe, 83 P.3d 1060, 1064 (Alaska 2004);
Stepovak_Shumagin Set Net Ass’n v. State Board of Fisheries, 886 P.2d
632, 636_37 (Alaska 1994); Kelly v. Zamarello, 486 P.2d 906, 911
(Alaska 1971).

4    Gudmundson v. State, 763 P.2d 1360, 1363 (Alaska App. 1988). Cf. Beran
v. State, 705 P.2d 1280, 1287_90 (Alaska App. 1985) (discussing the
requirement that a regulation, in order to be valid, must be consistent with
statutes addressing the same subject matter).

5    Compare Kiester v. Humana Hospital Alaska, Inc., 843 P.2d 1219,
1225 (Alaska 1992) ("[B]asic principles of due process of law require that
when a hospital denies an application for privileges, it notifies the applicant
of the specific criteria which were determinative in the denial and how the
applicant failed to meet the hospital’s expectations with regard to the
criteria."); Noden v. Commercial Fisheries Entry Comm’n, 680 P.2d 493, 498
(Alaska 1984) (holding that an unsuccessful applicant for a fishing permit
is entitled to an explanation of "the particular grounds" for the
Commission’s decision to deny the application).

6    AS 33.16.100(a) states:

The board may authorize the release of a prisoner on discretionary parole
if it determines a reasonable probability exists that

22 AAC 20.165(c) states:

When considering an application for parole, the board will, in its discretion, consider any of the
following factors [, and] will determine the priority and weight to be given each factor when making
a parole release decision: