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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| SONNY FUNGCHENPEN, | ) |
| ) Court of Appeals No. A-9892 | |
| Appellant, | ) Trial Court No. 3AN-06-7473 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2160 April 18, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Patrick J. McKay,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, 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.
Sonny Fungchenpen was convicted of second-degree
assault for attacking and wounding a man in a bar with a beer
bottle. In this appeal, Fungchenpen argues that he is entitled
to credit against his sentence for the 200 days he spent on bail
release before his sentencing.
As a condition of release, Fungchenpen was required to
submit to electronic monitoring. Fungchenpen was also required
to be in the immediate presence of a third-party custodian (his
wife) for twenty-four hours a day, except when he was at work (or
when he was traveling to and from work). In addition,
Fungchenpen was ordered not to consume alcohol, not to possess
firearms, and to have no personal contact with the victim and
witnesses in this case. [Exc. 1-7]
Based on this Courts decision in Matthew v. State, 152
P.3d 469 (Alaska App. 2007), the superior court denied
Fungchenpens request for credit against his sentence.
Fungchenpen now appeals the superior courts decision.
Fungchenpen first argues that our decision in Matthew
should not control his case; he asserts that his conditions of
release were substantially more restrictive than the conditions
of release that we addressed in Matthew. In the alternative,
Fungchenpen asks us to reconsider and overrule Matthew.
We do not view Fungchenpens conditions of release as
materially different from the conditions of release that we
addressed in Matthew and in our subsequent decisions on this
issue Ackerman v. State, Alaska App. Opinion No. 2154 (March 28,
2008); McNeil v. State, Alaska App. Memorandum Opinion No. 5216
(May 9, 2007), 2007 WL 1378151; and Finkel v. State, Alaska App.
Memorandum Opinion No. 5186 (March 7, 2007), 2007 WL 706637.
Accordingly, we conclude that our decision in Matthew governs
Fungchenpens case.
In Ackerman, we considered various arguments as to why
we should overrule Matthew, and we rejected them. Fungchenpen
raises one additional argument that we have not previously
addressed.
Fungchenpen notes that, after we announced our decision
in Matthew (February 2, 2007), the Alaska Legislature enacted a
law that expressly prohibits defendants from receiving credit
against their sentences for time spent on pre-trial or pre-
sentencing release under electronic monitoring. See
AS 12.55.027(d) (enacted by SLA 2007, ch. 24, 20, effective July
1, 20071 ), which reads: A court may not grant credit against a
sentence of imprisonment for time spent in a private residence or
under electronic monitoring. Based on the legislatures enactment
of this statute, Fungchenpen argues that the legislature must
have thought that the law was otherwise before the enactment of
the statute.
We do not agree. The legislative history of AS
12.55.027(d) suggests that the legislatures purpose was to
confirm its understanding of pre-existing law in the face of
several superior court decisions (decisions issued before this
Court decided Matthew) that granted defendants credit against
their sentences for time spent on electronic monitoring.
Of particular relevance are the minutes of the House
Judiciary Committee for the afternoon of April 10, 2007, when the
Committee considered House Bill 90 (25th Legislature) the bill
that was eventually enacted as SLA 2007, ch. 24. During the
Committees discussion of this bill, Assistant Attorney General
Anne Carpeneti answered a question from Representative Lindsey
Holmes regarding Section 6, the provision on electronic
monitoring:
Representative Holmes referred to ...
proposed AS 12.55.027(d), [the provision
dealing with] credit against a sentence of
imprisonment for time spent ... under
electronic monitoring. ... She asked
whether anyone is currently being given
credit for time served under electronic
monitoring.
Ms. Carpeneti said that that issue was
recently litigated in the Alaska Court of
Appeals case [of] Matthew v. State; the court
ruled that a persons time under electronic
monitoring should not qualify for credit
against a sentence of imprisonment. She
[understood] that there have been some cases
in which credit has been awarded for time
spent in a private residence. The
[Department of Law] wanted to clarify that
point, and so brought forth the language in
proposed subsection (d).
Minutes of the House Judiciary Committee for
April 10, 2007 @ 1:33 p.m.2
In sum, we have considered
Fungchenpens arguments as to why Matthew was
wrongly decided, and we reject them. We
again confirm the decision we reached in
Matthew.
The decision of the superior court
is AFFIRMED.
_______________________________
1 For the effective date of this provision, see SLA 2007, ch.
24, 39.
2Available at:
http://www.legis.state.ak.us/basis/get_single_minute.asp?session=
25&beg_line=00297&end_line=01123&time=1302&date=2007041
0&comm=JUD%20%20%20%20%20%20%20&house=H
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