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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
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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
| HAKIM IVIE, | ) |
| ) Court of Appeals No. A-9680 | |
| Appellant, | ) Trial Court No. 4FA-05-2920 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2153 - March 28, 2008] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: David K. Allen, Assistant Public
Advocate, Fairbanks, and Joshua P. Fink,
Public Advocate, Anchorage, for the
Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Hakim Ivie was indicted for escape in the second degree
for walking away from a halfway house. To convict Ivie of that
offense, the State had to prove that he removed himself from a
correctional facility while he was under official detention.
Ivie moved to dismiss the indictment, claiming that he
was not under official detention at the halfway house because the
superior court had ordered him released on bail. Therefore, he
argued, he did not commit the crime of escape, but rather
violated his conditions of release.
The superior court denied Ivies motion to dismiss, and
he was convicted in a bench trial. He appeals his conviction.
We reverse.
Factual background
In 2003, Ivie was convicted of assault in the second
degree. He received a sentence of 4 years with 2 years
suspended, and was placed on probation for a period of 3 years
following his release from confinement.
Ivie served his initial term of imprisonment and was
released on probation. On June 3, 2005, Ivie was arraigned
before Superior Court Judge Niesje J. Steinkruger on a petition
to revoke his probation. The petition to revoke probation was
based on an allegation that Ivie had consumed alcohol and
violated other conditions of his probation.
During the hearing on this petition to revoke, Ivies
attorney pointed out that Ivie was on a waiting list for
substance abuse treatment at the Ralph Perdue Center, an alcohol
treatment program. Judge Steinkruger asked if the Ralph Perdue
Center would do an updated substance abuse evaluation while Ivie
was confined. The parties agreed to that, but Ivies attorney
stated that his request was for Ivie to be released to the
NorthStar Center, a halfway house. The following exchange
occurred:
Defense Attorney: No, I dont have an objection [to
an evaluation but], our request is going to be that he
be released to NorthStar.
Judge Steinkruger: Any objection to that ... ?
Probation Officer: I dont. At this point, though, I
havent talked to them to see if they would even accept
him.
Judge Steinkruger: All right. No bail status
continues. If a bed opens up at NorthStar and he is
eligible, Mr. Ivie, upon notification by his probation
officer to [the Fairbanks Correctional Center], may be
transferred to NorthStar. He is to immediately obtain
an updated evaluation from Ralph Perdue, and take the
first available bed if inpatient is recommended, or
begin outpatient if outpatient is recommended. If a
bed opens up for inpatient, his conditions of release
are that he is to take the bed, follow all rules, if he
is discharged for any reason, he is returned to FCC.
So if a miracle would happen and a bed would open up,
he can go directly into it.
Judge Steinkruger ended the hearing by setting a date for a
status hearing and a bail hearing.
On June 8, 2005, Ivie was transferred from the
Fairbanks Correctional Center to the NorthStar Center. On July
3, 2005, Ivie walked away from the NorthStar Center without
permission from the NorthStar Center staff or the court. The
grand jury indicted him on a charge of escape in the second
degree, a class B felony offense.1
On October 4, 2005, Ivie filed a motion to dismiss the
indictment, contending that he was not guilty of escape in the
second degree. Superior Court Judge Mark I. Wood denied the
motion to dismiss the indictment. The case was then tried on
stipulated facts. Judge Wood found Ivie guilty of escape in the
second degree. Ivie appeals.
Why we conclude that Ivie could not be
convicted of escape in the second degree
A person commits the crime of escape in the second
degree if he removes himself from a correctional facility while
under official detention.2 Ivie contends that he could not be
legally charged with escape in the second degree because he was
not under official detention at the NorthStar Center. Official
detention is defined by AS 11.81.900(b)(40): Official detention
means custody, arrest, surrender in lieu of arrest, or actual or
constructive restraint under an order of a court in a criminal or
juvenile proceeding, other than an order of conditional bail
release. Ivie argues that he was not under official detention at
the NorthStar Center because he was confined on an order of
conditional bail release.
The State concedes that the superior court has
authority to release a probationer from Department of Corrections
custody to a halfway house through an order of conditional bail
release. But the State disputes that this happened in Ivies
case. The State argues that Judge Steinkruger merely recommended
to the Department of Corrections that Ivie be placed in the
NorthStar Center.
We addressed a similar situation in State v. Paige.3
In Paige, after Paige was incarcerated on a petition to revoke
his probation, the superior court ordered him placed in a
residential treatment program at a halfway house. Later, the
superior court revoked Paiges probation and imposed an 18-month
sentence. But the court ordered Paige to complete a residential
program at a halfway house as a special condition of probation.
The court ordered Paige to complete the program and then
immediately begin serving his jail sentence.
Paige walked away from the program and was arrested and
charged with escape. The superior court held that Paige was not
guilty of escape because the court had ordered Paige into the
program as a special condition of probation. The court concluded
that Paige was not in confinement under an order of the court and
was therefore not under official detention.4 The superior court
relied on Beckman v. State.5 We relied on Beckman in affirming
the superior courts decision.
Paige and Beckman establish that a person is not guilty
of escape just because he leaves confinement.6 In order for Ivie
to be guilty of escape, the court must have ordered the
Department of Corrections to confine him, and he must have
removed himself from that confinement. If Judge Steinkruger
ordered Ivies release to the NorthStar Center, her order would be
an order of conditional bail release. Ivie would not be under
official detention and could not be charged with escape.
This case thus turns on interpreting Judge Steinkrugers
order. To the extent that Judge Steinkrugers order is ambiguous,
we believe that we should interpret the order in the light most
favorable to Ivie. Ivie faces a felony conviction; it was the
duty of the court to make Ivies status clear.
When we look at Judge Steinkrugers remarks in context,
it appears that she intended to release Ivie to the NorthStar
Center. At the hearing on Ivies petition to revoke, Ivies
attorney requested that Ivie be released to [the] NorthStar
[Center]. The probation officer indicated that she had no
objection, but that she needed to find out if the halfway house
would accept Ivie. Judge Steinkrugers ruling was in response to
these comments. In context, it appears that the judge wanted
Ivie to remain in state custody until there was an opening at
the NorthStar Center. Ivie was then to go there, undergo an
evaluation, and participate in any program recommended by the
Ralph Perdue Center. Judge Steinkruger told Ivie that his
conditions of release were to participate in the program and
follow all the rules, or he would be returned to state custody at
the Fairbanks Correctional Center.
In interpreting Judge Steinkrugers remarks, we have
considered the fact that an Alaska statute specifically provides
that when a judge places a person in state custody, the
Department of Corrections, not the judge, determines the
correctional facility to which a prisoner is to be committed to
serve a term of imprisonment or period of temporary commitment.7
Alaska cases hold that a judge can recommend a facility, but it
is ultimately up to the Department of Corrections to determine
where a person committed to state custody is incarcerated. Judge
Steinkruger thus had no authority, if Ivie was in state custody,
to designate the facility where he would stay. We are confident
that Judge Steinkruger, an experienced judge, was aware of this.
The State points out that Judge Steinkruger stated
that, if a possible placement opened up at the NorthStar facility
that upon notification by his probation officer to the FCC,
[Ivie] may be transferred to NorthStar.8 The State argues that
this shows that Judge Steinkruger was merely making a
recommendation to the Department of Corrections to transfer Ivie
to the NorthStar facility. This is certainly a possible reading,
but we do not consider it the most likely one. Again, Judge
Steinkrugers ruling was in response to a request by Ivies
attorney that Ivie be released to the NorthStar Center. There
was no objection from his probation officer. It appears that the
only reason that Ivie was not sent directly to the NorthStar
Center was that the probation officer was not sure if the
facility would accept him and if there was a place for him there.
So it appears, in context, that Judge Steinkruger ordered Ivie to
the Fairbanks Correctional Center until he could be released to
the NorthStar Center.
We therefore conclude that Ivie was not in state
custody when he was at the NorthStar Center. He was there under
a court order releasing him to that facility. He was therefore
not under official detention when he left that facility.
Accordingly, he did not commit the crime of escape in the second
degree. Ivies conviction for escape in the second degree is
VACATED and the indictment against him for that charge is
dismissed.
_______________________________
1 AS 11.56.310(a)(1)(A).
2 AS 11.56.310(a)(1)(A).
3 Alaska App. Memorandum Opinion and Judgment No. 3476 (Oct.
9, 1996), 1996 WL 596920.
4 Id. at 7, 1996 WL 596920 at *4.
5 689 P.2d 500 (Alaska App. 1984).
6 Id. at 503; Paige, Memorandum Opinion and Judgment No.
3476 at 7, 1996 WL 596920 at *4.
7 AS 33.30.061(a). See State v. Combs, 64 P.3d 135, 136-37
(Alaska App. 2003).
8 Emphasis supplied.
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