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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
| JOSEPH A. MATTHEW, | ) |
| ) Court of Appeals No. A-9395 | |
| Appellant, | ) Trial Court No. 4FA-05-298 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2084 - February 2, 2007 |
| _________________________________ | ) |
Appeal from the
Superior Court, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for the Appellant. Douglas H.
Kossler, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Joseph A. Matthew pleaded no contest to one count of
felony driving while under the influence. Following his
sentencing, Matthew asked the superior court to delay his
confinement so he could work in Barrow. Matthew proposed a plan
where he would be subject to electronic monitoring. The
electronic monitoring would ensure that Matthew would be at his
residence, at work, or commuting between his residence and work.
In addition it would monitor Matthew to ensure that he did not
consume alcohol. Superior Court Judge Randy M. Olsen granted
Matthews motion and ordered the release. Even though Judge
Olsen informed Matthew that Matthew would not be able to receive
credit for time served for the time he was on electronic
monitoring, Matthew indicated that he would file a motion to
obtain credit towards his sentence for the time he was subject
to electronic monitoring.
Matthew filed the motion seeking credit for the time
he spent on electronic monitoring before he turned himself over
to the custody of the Department of Corrections. Judge Olsen
summarily denied the motion. Matthew now appeals, arguing that
Judge Olsen erred in refusing to give him credit for the time he
was subject to electronic monitoring. This case is governed by
Nygren v. State,1 where we held that whether a person is entitled
to credit for time served while released on bail or probation is
determined by whether the person released on bail or probation is
subjected to restrictions approximating those experienced by one
who is incarcerated.2 We conclude that the restrictions to which
Matthew was subjected did not meet this standard. We accordingly
affirm Judge Olsens order denying Matthew credit for time served
for the time he was subject to electronic monitoring.
Factual and procedural background
Matthew was charged with one count each of felony
driving while under the influence, felony refusal to submit to a
chemical test, driving with a suspended drivers license, and
failure to stop at the direction of a peace officer.3 At an
omnibus hearing before Judge Olsen on March 31, 2005, Matthew
asked for a bail hearing to be conducted the following week.
Matthew indicated that the case would probably be resolved by a
plea agreement. Matthew also told Judge Olsen that he was going
to ask to be released on electronic monitoring so that he would
not need to be in the third party custody of his mother and
father.
At the bail hearing on April 5, Matthew entered into a
plea agreement with the State which included his plea to felony
driving while under the influence and a 2-year sentence of
incarceration. Matthew asked Judge Olsen to delay the date when
he would be required to turn himself in to serve his sentence of
imprisonment. Matthew asked for a sixty-day extension in order
to work in Barrow. Matthews proposal was that he would be
monitored by a private electronic monitoring system, SCRAM,
which is operated in Alaska by a private company, Alaska
Monitoring Services. SCRAM stands for secure continuous remote
alcohol monitoring. The SCRAM unit is a small ankle bracelet
that detects a subjects alcohol consumption through the skin
pores. In addition, through an attached global positioning
system, the unit allows the subjects location to be closely
monitored at all times.4
Judge Olsen granted Matthew the sixty-day stay of
imprisonment. He specifically ordered Matthew confined to home,
work, and travel thereto and back, and that he was not to consume
alcohol while on release. He warned Matthew that any violations
of this condition would be reported to the court. Judge Olsen
also told Matthew that he would not receive any credit toward his
sentence for the time he was released on electronic monitoring.
Matthew informed Judge Olsen that he would like to make a later
motion to obtain credit for time served while he was released on
electronic monitoring. Judge Olsen indicated that he would
consider the motion.
Pursuant to the plea bargain with the State, Judge
Olsen sentenced Matthew to 2 years of imprisonment, a $10,000
fine, a permanent revocation of his drivers license, forfeiture
of his vehicle, and he extended Matthews probation in another
case by 2 years. Judge Olsen gave Matthew credit for the 30-day
period he spent in residential treatment at Lakeside-Milam
Recovery Center in Kirkland, Washington.
At a bail hearing on May 16, 2005, Matthew again
requested a delay of his imprisonment so that he could continue
working in Barrow and other locations throughout the construction
season. Judge Olsen agreed to this extension. Judge Olsen
observed that when Matthew was not intoxicated and was not
driving in violation of the law, he was a productive member of
society. Judge Olsen warned Matthew that if he consumed alcohol
or if the electronic monitoring agency decided it was unwilling
to continue to supervise him, he would be arrested. Judge Olsen
stated that he understood that, under the SCRAM program, Matthew
would only be allowed to be at work, at home, or commuting
between home and work. He told Matthew that the electronic
monitoring system was very accurate and that the attached GPS
unit would show where he was at any given moment. He stated
that other people who had been released on this electronic
monitoring program had faced a bail revocation after they had
departed from their approved schedule to run an errand.
On June 7, Matthew filed a motion to obtain credit
toward his sentence of incarceration for the time that he spent
while released on electronic monitoring. Judge Olsen denied the
motion. Matthew appeals from this decision. We affirm.
Why we conclude that Matthew was not entitled
to credit toward his sentence of imprisonment
for the period of time he was subject to
electronic monitoring
By statute, a defendant is to receive credit for time
spent in custody pending trial, sentencing, or appeal, if the
detention was in connection with the offense for which the
sentence was imposed.5 In the leading case of Lock v. State,6
the Alaska Supreme Court interpreted Alaskas former credit for
time served statute,7 and held that upon revocation of probation,
one is entitled to credit against his sentence on the original
offense for time spent as a condition of probation, in a
rehabilitation program which imposes substantial restrictions on
ones freedom of movement and behavior.8
In Nygren, this court set out to define what
constituted substantial restrictions on ones freedom of movement
and behavior which would qualify for credit for time served under
AS 12.55.025(c). 9 We stated that the test was the extent to
which a person released on bail or probation is subjected to
restrictions approximating those experienced by one who is
incarcerated.10 We recognized that places of incarceration
varied substantially. But we attempted to define the types of
restrictions that characterize such facilities:
[I]ncarcerative facilities share a number of
common characteristics: their residents are
invariably sent there by court order; the
facilities require residency, and residency
requirements are sufficiently stringent to
involve a definite element of confinement;
residents of the facilities are subject to
twenty-four hour physical custody or
supervision; any periods during which
residents may be permitted to leave the
facility are expressly limited, both as to
time and purpose; while in the facility,
residents are under a continuing duty to
conform their conduct to institutional rules
and to obey orders of persons who have
immediate custody over them; and residents
are subject to sanctions if they violate
institutional rules or orders and to arrest
if they leave the facility without
permission.[11]
While we indicated that the list was not complete, we
stated that the list was sufficient to serve as sound points of
reference for determining, in any given case, whether substantial
restrictions on ones freedom of movement and behavior have been
imposed, so as to require credit for time served under Lock.12
The first question that we must decide is the
appropriate standard of review. We must either review de novo,
to determine as a matter of law if a defendants conditions of
release were substantial restrictions constituting incarceration
or we must review for an abuse of discretion, and defer to the
trial court, unless we find an abuse of discretion. A review of
our prior case law shows that we have used both standards.13
Upon further consideration, it seems clear to us that this is an
issue which we must determine as a matter of law. Of course, the
trial court must determine factually the conditions of release.
But we must review, de novo, whether these conditions of release
sufficiently approximate incarceration. We arrive at this
conclusion for two main reasons. First, this appears to be the
standard which the Alaska Supreme Court applied in Lock.14 We
are bound to follow this precedent. The second reason is to
establish sentencing uniformity. If we deferred to the trial
courts, similarly situated defendants would be treated
differently. Whether a prisoner would receive credit for time
served might turn on the identity of the judge before whom he
appeared. This court, by setting uniform statewide standards,
can strive to eliminate unjustified disparity.
The State argues that Matthew does not qualify, as a
matter of law, for credit for the time that he served on
electronic monitoring under AS 12.55.025(c). The State points
out that the statute provides that a defendant shall receive
credit for time spent in custody pending trial, sentencing, or
appeal. The State argues that because Matthew was released
after sentencing but before beginning his sentence, and not on
bail pending appeal, the statute does not apply to him. But we
conclude that we do not need to decide this issue because we hold
that Matthew has not established that he was subjected to
restrictions approximating those experienced by one who is
incarcerated.15
The record sets out the restrictions which Judge Olsen
placed on Matthew. Matthew was to be at his residence, at his
work, or directly commuting between those two places. He was not
to consume any alcohol and was constantly monitored both as to
his movements and his alcohol consumption by the electronic
monitoring. We conclude that Matthews court-ordered conditions
of release did not subject him to restrictions approximating
those experienced by one who is incarcerated.16 Matthews day-to-
day activities were unencumbered by the kind of institutional
rules and routines that are the hallmark of correctional or
residential rehabilitative facilities. The conditions of release
did not subject him to the kind of structured, regimented life
style that is the central feature of both incarceration and
residential treatment programs.17 As long as Matthew was either
at home or at work, he could do whatever he wanted to do (except
for consume alcohol) and was free to associate with whomever he
wanted.18 Additionally, Matthew did not suffer the same lack of
privacy experienced by an offender in an incarcerative facility
or residential treatment program.19
In arguing that he should be given credit for time
served while on electronic monitoring, Matthew points out that
the Department of Corrections has an electronic monitoring
program. He reasons that, if sentenced prisoners in the custody
of the Department of Corrections can receive credit for time
served while on electronic monitoring, he should also be able to
receive credit for the time he served on electronic monitoring.
In making his argument, Matthew has provided us with several
rulings by trial court judges in which, under this reasoning,
the judges awarded credit for time served to defendants who were
released on electronic monitoring prior to their incarceration.
The Alaska statutes authorize the Commissioner of the
Department of Corrections to assign a sentenced prisoner already
in the custody of the Department of Corrections to serve part of
his term of imprisonment subject to a program of electronic
monitoring.20 We assume that the restrictions placed upon a
prisoner by the Department of Corrections are similar to the
conditions Matthew faced. But we conclude that, just because the
Commissioner of the Department of Corrections has the authority
to designate relatively unstructured ways in which a prisoner may
serve a sentence, it does not follow that a person subject to
those same conditions as a component of pre-custody release by
the court must receive credit for time served. For instance,
Alaska statutes authorize the Commissioner to release a prisoner
on furlough to visit family or to obtain medical treatment.21
Even if the Commissioner authorizes the prisoner to be released
under minimal supervision, the prisoner would be entitled to
credit for time spent on the furlough toward his sentence. The
prisoner gets credit for time served on furlough, not because of
how closely any restrictions of release approximate actual
incarceration, but because this is a period of time during which
the prisoner is under the jurisdiction of the Department of
Corrections.
We conclude that the proper test for whether a person
gets credit against his sentence for time spent on a court-
ordered release is the test which the supreme court set forth in
Lock: whether the conditions of release impose substantial
restrictions on ones freedom of movement and behavior.22 We
defined the restrictions approximating those experienced by one
who is incarcerated in detail in Nygren.23 When we apply the
test in Nygren, we conclude that the restrictions which Matthew
faced did not approximate those experienced by one who is
incarcerated. We accordingly conclude that Judge Olsen did not
err in denying Matthew credit for the time during which he was
released on electronic monitoring.
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to emphasize the rationale of our
decision.
As Judge Coats acknowledges in the lead opinion,
several superior court judges have granted defendants credit
toward their sentences under the circumstances of Matthews case.
These judges decisions were based on the theory that, because the
Department of Corrections is authorized to allow prisoners to
serve their sentences at home (or some other designated
residence) under electronic monitoring, defendants who
participate in equivalent forms of electronic monitoring as part
of their bail conditions must likewise receive credit against
their sentences for the time they spend under electronic
monitoring.
In other words, these judges interpreted Nygren v.
State1 to mean that defendants are entitled to credit against
their sentences if their bail conditions resemble any form of
custody authorized by the statutes and administrative regulations
that govern the Department of Corrections. But as Judge Coats
points out in the lead opinion, our decision in Nygren
established a stricter rule: defendants are entitled to credit
against their sentences only if the restrictions imposed by their
bail conditions are the equivalent of incarceration.2
The Nygren rule does not encompass all forms of
correctional custody authorized by Alaska law. For example, AS
33.30.101 and 30.121 as implemented by 22 AAC 05.271(b)(1), 22
AAC 05.316, and 22 AAC 05.326 authorize the Commissioner of
Corrections to release selected prisoners on short-duration
furlough. Depending on the purpose of the furlough, these short-
duration furloughs may last up to one week or longer.3 And the
Commissioner of Corrections has wide discretion concerning the
conditions of a short-duration furlough; apparently, these
conditions might be as minimal as having the prisoner check in
with a Corrections officer on a regular basis a modified form of
release on the prisoners own recognizance.
The fact that the Commissioner has the authority to
release prisoners under this minimal form of supervision does not
mean that defendants can claim credit for time served if they,
too, are released on their own recognizance or under the
requirement that they periodically contact their attorney or some
other designated officer of the court. Nygren credit hinges on a
defendants subjection to restrictions that approximate
incarceration.
_______________________________
1 658 P.2d 141 (Alaska App. 1983).
2 Id. at 146 (citation omitted).
3 AS 28.35.030(n); AS 28.35.032(p); AS 28.15.291(a)(1); AS
28.35.182(b), respectively.
4 See Alcohol Monitoring Systems, Inc., Components of the
SCRAM System, at http://www.alcoholmonitoring.com/products/html
(Last visited Jan. 12, 2006).
5 AS 12.55.025(c).
6 609 P.2d 539 (Alaska 1980).
7 AS 11.05.040(a). In 1978, the Legislature enacted
current AS 12.55.025(c), which superseded former AS 11.05.040,
but contained the same provision for good time credit. See State
v. Fortuny, 42 P.3d 1147, 1148 n.2 (Alaska App. 2002).
8 Lock, 609 P.2d at 545 (emphasis added).
9 Nygren, 658 P.2d at 146.
10 Id. (citation omitted).
11 Id.
12 Id. (quoting Lock, 609 P.2d at 545).
13 Compare Ackerman v. State, 716 P.2d 5, 6 (Alaska App.
1986) (applying de novo standard of review in denying Nygren
credit for time defendant spent in third-party custody on
commercial fishing boat) with Thiel v. State, 762 P.2d 478, 486
(Alaska App. 1988) (holding that the trial court was not clearly
erroneous in denying defendant Nygren credit for time defendant
was released on bail to custody of a co-worker at a remote mining
site); and Martin v. State, Alaska App. Memorandum and Judgment
No. 4619 at 6 (Sept. 18, 2002), 2002 WL 31060618 at *3
(concluding that the trial courts finding that treatment program
was not functionally equivalent to incarceration was not clearly
erroneous); and Knix v. State, Alaska App. Memorandum and
Judgment No. 4438 at 6 (Aug. 22, 2001), 2001 WL 95989 at *3
(concluding that the trial courts denial of motion for Nygren
credit for time spent on non-court-ordered electronic monitoring
program was not clearly erroneous).
14 609 P.2d at 546.
15 Nygren, 658 P.2d at 146.
16 Id.
17 Cf. People v. Ramos, 561 N.E.2d 643, 647 (Ill. 1990)
(holding that defendant was not entitled to credit for time
served while on home confinement and stating that [a]n offender
who is detained at home is not subject to the regimentation of
penal institutions and, once inside the residence, enjoys
unrestricted freedom of activity, movement and association.); see
also State v. Rauch, 13 P.3d 324, 334-36 (Haw. 2000) (same).
18 See People v. Chavez, 122 P.3d 1036, 1038 (Colo. App.
2005), cert. denied, 2005 WL 3733065 (Colo. Nov. 7, 2005)
(holding that defendant was not entitled to credit for time
served while subject to electronic monitoring and home
confinement, as defendant continued to enjoy many of the freedoms
that those who have never been convicted of a crime enjoy, such
as working, attending school, and socializing with family and
friends).
19 See Chavez, 122 P.3d at 1038; Ramos, 561 N.E.2d at 647.
20 AS 33.30.065.
21 AS 33.30.121.
22 Lock, 609 P.2d at 545.
23 658 P.2d at 146.
1 658 P.2d 141 (Alaska App. 1983).
2 Nygren, 658 P.2d at 146.
3 See 22 AAC 05.326(a)(1), authorizing family visitation
furloughs of up to one week, and 22 AAC 05.326(a)(2), authorizing
medical furloughs of indefinite duration, [no] longer than
necessary for the [prisoners medical] treatment.
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