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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.
