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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
| PAUL A. ACKERMAN, | ) |
| ) Court of Appeals No. A-9676 | |
| Appellant, | ) Trial Court No. 4FA-05-256 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2154 March 28, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: James H. Cannon, Fairbanks, for
the Appellant. Douglas H. Kossler, 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.
MANNHEIMER, Judge.
Paul A. Ackerman was charged with two crimes: felony
driving under the influence and failure to stop at the direction
of a police officer. He was released on electronic monitoring
pending his trial. After Ackerman was convicted, he asked the
superior court to give him credit against his sentence for the
time he spent on electronic monitoring. The superior court ruled
that Ackerman was not entitled to credit against his sentence,
and Ackerman now appeals this ruling.
Under AS 12.55.025(c), a defendant is entitled to
credit against their sentence for time spent in custody pending
trial [and] sentencing if that detention was imposed in
connection with the offense for which the defendant is sentenced.
In Nygren v. State, 658 P.2d 141, 146 (Alaska App. 1983), this
Court held that a defendant who is released on bail (and who is
therefore not in the custody of the Department of Corrections) is
nevertheless entitled to credit against their sentence under
AS 12.55.025(c) if the defendants bail conditions subject the
defendant to restrictions approximating those experienced by one
who is incarcerated.
In Matthew v. State, 152 P.3d 469 (Alaska App. 2007) a
case that was decided while Ackermans appeal was pending we
addressed the same question raised in Ackermans case: whether,
under AS 12.55.025(c) as interpreted in Nygren, a defendant who
is granted pre-trial release on electronic monitoring is entitled
to credit against their sentence of imprisonment for the time
spent on electronic monitoring.
The defendant in Matthew was required to wear an
electronic monitoring device and he was restricted to his home,
his work, and transit in between. Id. at 472. We held that
these constraints on the defendants activities were not so
onerous as to be the equivalent of incarceration for purposes of
AS 12.55.025(c). Id. at 472-73 (majority opinion) and at 474
(Mannheimer, J., concurring).
Ackermans conditions of release were essentially the
same as the ones discussed in Matthew. Ackerman was required to
wear an electronic monitoring device (a device that monitored
both his geographic position and his consumption of alcohol), and
he was restricted to his home in Fairbanks, his work at Clear Air
Force Base (including the dining hall at the base and the
dormitory where Ackerman would stay during his multi-day work
assignments), and transit in between. Thus, our decision in
Matthew would seemingly govern our resolution of Ackermans
appeal.
Ackerman asks us to reconsider and reverse our decision
in Matthew.
Under the doctrine of stare decisis, when a litigant
challenges a controlling decision of this Court, it is not enough
... to show that the [prior] decision was honestly debatable at
the time, and that it might have gone the other way. Rather, a
litigant who asks an appellate court to overrule an existing
decision must demonstrate convincing reasons why the decision was
originally erroneous in other words, was never legally
justifiable or why the decision is no longer sound because of
changed conditions. Erickson v. State, 950 P.2d 580, 587 (Alaska
App. 1997) (quoting State v. Dunlop, 721 P.2d 604, 610 (Alaska
1986)).
Ackerman argues that our decision in Matthew was
originally erroneous. In particular, he relies on an exchange
that occurred during the 1998 House Judiciary Committees
discussion of House Bill 272. This bill, which eventually became
SLA 1998, ch. 116, enacted two companion statutes:
AS 33.30.061(c) and AS 33.30.065. These statutes authorize the
Commissioner of Corrections to release prisoners from
correctional facilities to serve their sentence at their
residence (or at some other specified living place) under
electronic monitoring. Ackerman contends that a portion of the
committees discussion shows that the legislature intended to give
Nygren credit to defendants who are released on bail under
electronic monitoring.
The minutes of the Judiciary Committee for February 18,
1998, contain the following colloquy between Representative Ethan
Berkowitz, Representative Joe Green (the Chair of the Committee),
and Kevin Jardell, a legislative aide working for Representative
Green:
Representative Berkowitz noted that this
[proposed statutory amendment] addresses
[release on electronic monitoring following]
conviction, but not bail.
Mr. Jardell concurred and explained that
they dont want to get too expansive in this
[release on electronic monitoring] project.
They want to allow the Department of
Corrections to focus on a specific group of
prisoners that have already been convicted,
and to try to implement an effective program.
He expressed hope that, if it is successful
and can be done economically and efficiently,
it could be expanded later to address those
concerns [i.e., defendants released on bail].
He noted that Freds Bail Bonding in Anchorage
now has some private electronic monitoring
for pre-trial or bail situations.
Representative Berkowitz commented that
Fred does have a quasi-governmental sta[tus,
and if he] can get bail with electronic
monitoring, that person would qualify for
Nygren or jail term credit.
Chairman Green said that may be.
Mr. Jardell stated his impression that
Representative Berkowitz is correct. He
added, My understanding of Nygren is that, if
the court orders you to any type of
incarceration, ... that incarceration can be
counted as Nygren credit. ... I would
imagine [that whenever a defendant is] under
any kind of electronic monitoring, it would
be [at the order of] the courts.
(Minutes for Tape 98-19, Side B, log nos.
0848 to 0935)
Ackerman argues that the comments
of Rep. Berkowitz and Mr. Jardell support the
conclusion that the legislature intended, or
at least foresaw, that defendants released on
bail under electronic monitoring would
receive credit against their sentences (in
the event they were convicted).
It is true that Rep. Berkowitz and
Mr. Jardell expressed the view that
defendants released on bail under electronic
monitoring would be entitled to Nygren
credit. But it is also clear, from this
quoted passage, that the issues of bail
release and potential Nygren credit were not
before the Committee. When Rep. Berkowitz
pointed out that the proposed electronic
monitoring legislation did not include
defendants on bail release, Mr. Jardell
answered that the drafters of the bill had
consciously decided to limit the scope of the
law to prisoners who had been convicted of
crimes and were serving their sentence.
Thus, although Rep. Berkowitz and Mr. Jardell
expressed views on the subject of Nygren
credit for defendants who were released on
bail with electronic monitoring, Mr. Jardell
clearly stated that this subject was beyond
the scope of the proposed bill. This being
so, the question of Nygren credit was
seemingly irrelevant to the Judiciary
Committees decision or the full legislatures
later decision regarding the proposed
electronic monitoring bill.
Ackerman also argues that bail
release under electronic monitoring is a
significantly different status from bail
release without electronic monitoring. At
oral argument, Ackerman acknowledged that,
absent electronic monitoring, his conditions
of release would not, by themselves, entitle
him to Nygren credit. But Ackerman argues
that the addition of electronic monitoring
alters the equation so as to yield a new
legal result.
We disagree. The fact of
electronic monitoring did not alter or add to
the restrictions placed on Ackermans
whereabouts or activities. Instead,
electronic monitoring was a way for the court
to find out whether Ackerman was abiding by
those restrictions.
Ackerman argues that defendants
feel a different psychological pressure when
they know that an electronic monitoring
device is keeping track of their physical
movements and their alcohol intake. But
defendants have no protected right to violate
the conditions of release if they can get
away with it.
In sum, we re-affirm our conclusion
in Matthew that the constraints imposed by
electronic monitoring are not the equivalent
of incarceration for purposes of
AS 12.55.025(c).
But even if the matter remained
debatable, this would not be sufficient for
Ackerman to prevail in this appeal. Under
the doctrine of stare decisis, it is not
enough for Ackerman to show that our decision
in Matthew was honestly debatable at the
time, or that the decision might have gone
the other way. Rather, it is Ackermans
burden to convincingly demonstrate that
Matthew was wrong from the beginning. He has
not met this burden.
Accordingly, we decline to overrule
Matthew. And, because our decision in
Matthew governs Ackermans claim in this
appeal, the judgement of the superior court
is AFFIRMED.
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