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Degrate v. State (07/22/2005) ap-1995

Degrate v. State (07/22/2005) ap-1995

                             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


JOHNNY DARNELLE DEGRATE II, )
) Court of Appeals No. A-8877
Appellant, ) Trial Court No. 3AN-04-906 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1995 July 22, 2005]
)
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,
          Judge.

          Appearances:     Randall    S.     Cavanaugh,
          Kalamarides  &  Lambert, for  the  Appellant.
          Sharon  A.  S.  Illsley,  Assistant  District
          Attorney, and Leonard M. Linton Jr., District
          Attorney, Anchorage, and Scott J. Nordstrand,
          Acting  Attorney  General,  Juneau,  for  the
          Appellee.

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

          MANNHEIMER, Judge.

          Johnny  Darnelle  Degrate II was convicted  of  second-
degree  assault and third-degree assault arising from a  shooting
incident.   Superior Court Judge Larry D. Card sentenced  Degrate
to  7  years  imprisonment with 5 years  suspended  (2  years  to
serve).
          Approximately   three  months  after  his   sentencing,
Degrate  filed a motion under Alaska Criminal Rule  35(b)  asking
Judge  Card to modify this judgement:   Degrate asked Judge  Card
to  order the Department of Corrections to let Degrate serve  his
sentence  by  living at home under house arrest, with  electronic
monitoring,  rather than serving the sentence in  prison.   Judge
Card  denied Degrates motion, ruling that he had no authority  to
order the Department of Corrections to do this.
          Degrate  now  appeals  Judge Cards  decision.   Degrate
argues  that Judge Card did in fact have the authority  to  order
the  Department of Corrections to let Degrate serve his  sentence
under house arrest with electronic monitoring.  Degrate therefore
asks  us  to vacate Judge Cards ruling and to remand his case  to
the superior court so that Judge Card can consider the merits  of
Degrates request.
          Degrate cites three Alaska statutes in support  of  his
argument  that a sentencing court has the authority to order  the
Department  of Corrections to let a prisoner serve a sentence  by
electronic  monitoring.   None of these three  statutes  supports
Degrates argument.
          The  first of these statutes, AS 12.55.015(e)(2),  does
not say that a sentencing judge can order the Department to let a
prisoner serve a sentence by electronic monitoring.  Rather,  the
statute  says  that  a sentencing judge may  recommend  that  the
defendant serve all or part of [a] term [of imprisonment] ...  by
electronic monitoring.  (Emphasis added)
          The  wording of this statute  in particular,  the  verb
recommend   echoes  the decision of the Alaska Supreme  Court  in
Rust  v. State, 582 P.2d 134 (Alaska 1978).  In Rust, the supreme
court held that, although a sentencing judge may suggest that the
Department place a prisoner in a particular facility or  type  of
facility,  final  decisions  regarding  prisoner  placement   and
classification are up to the Department.1
          The   second  statute  that  Degrate  relies   on,   AS
33.30.061,  reiterates this same rule.  Subsection  (a)  of  this
statute restates the principle that it is [t]he commissioner  [of
corrections  who]  shall designate the correctional  facility  to
which  a  prisoner  is  to  be  committed  to  serve  a  term  of
imprisonment.   Subsection  (c) of  this  statute  addresses  the
option  of  electronic monitoring as authorized by AS  33.30.065,
but  this  subsection  declares that the question  of  electronic
monitoring  is  entrusted to the Commissioners  discretion:   The
commissioner  may, under AS 33.30.065, designate  a  prisoner  to
serve  the  prisoners  term  of imprisonment  ...  by  electronic
monitoring.  (Emphasis added)
          Finally,  Degrate relies on AS 33.30.065,  the  statute
that  defines the criteria for deciding whether a prisoner should
be  allowed  to  serve a sentence (or portion of a  sentence)  by
electronic monitoring, and that specifies some of the details  of
that  electronic  monitoring.  But, like the two  other  statutes
discussed above, AS 33.30.065 entrusts the question of electronic
monitoring  to the Commissioners discretion.  Indeed,  subsection
(c)  of  this  statute  expressly states  that  the  Commissioner
retains  the  authority to revoke electronic  monitoring  and  to
order  the  prisoner  returned to  prison:   A  decision  by  the
commissioner to designate a prisoner to serve [all or part of]  a
term of imprisonment ... by electronic monitoring does not create
          a liberty interest in that status for the prisoner.  The prisoner
may  be returned to a correctional facility at the discretion  of
the commissioner.
          In  sum, the three statutes that Degrate relies  on  do
not  support  his argument. Instead, these statutes  confirm  the
correctness of Judge Cards ruling that a sentencing judge has  no
authority  to  order  the Commissioner of Corrections  to  let  a
prisoner  serve  a  term  of imprisonment  by  house  arrest  and
electronic monitoring.
          The decision of the superior court is AFFIRMED.

_______________________________
     1582 P.2d at 137-38.