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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
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-9950 | |
| Appellant, | ) Trial Court No. 1PE-05-55 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| EUGENE J. BOURDON JR., | ) |
| ) | |
| Appellee. | ) No. 2188 October 16, 2008 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Petersburg, Larry C. Zervos,
Judge.
Appearances: Marilyn J. Kamm, Assistant
Attorney General, Criminal Division Central
Office, and Talis J. Colberg, Attorney
General, Juneau, for the Appellant. Daniel
Lowery, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Eugene J. Bourdon was convicted of four counts of
sexual abuse of a minor in the second degree.1 After serving a
period of incarceration, he was released on parole. Later, when
the Parole Board learned that Bourdon had probably violated his
parole, the Board issued a warrant for his arrest. After Bourdon
was arrested, he was placed at Glacier Manor, a halfway house in
Juneau run by Gastineau Human Services. The Department of
Corrections contracts with Gastineau Human Services to house
inmates there. Bourdon stayed at Glacier Manor for 248 days,
until the Parole Board revoked his parole. The Department of
Corrections then transferred him to Lemon Creek Correctional
Center.
Under Alaska law a prisoner is entitled to a deduction
of one-third of the term of imprisonment ... if the prisoner
follows the rules of the correctional facility in which the
prisoner is confined.2 This deduction for good behavior is
called good time.3 Bourdon contends that he was eligible for 83
days of good time credit for the time he spent at Glacier Manor.
The Department of Corrections refused to award Bourdon good time
on the ground that the good time statute only authorized the
award of good time for imprisonment in a state-run institution.
Relying on Valencia v. State,4 the Department contended that
because Glacier Manor was not a state-run institution, Bourdon
was not entitled to good time credit for the time he served in
that institution.
Bourdon challenged the Departments ruling by filing an
application for post-conviction relief. Superior Court Judge
Larry C. Zervos held that Bourdon was entitled to good time
credit for the time he served in Glacier Manor. The State
appeals. We affirm.
Why we uphold Judge Zervoss decision
The State first argues that Bourdons application for
post-conviction relief was deficient because he failed to submit
an affidavit in support of his factual contentions. But, as
Judge Zervos recognized, the parties do not dispute the facts in
this case. Bourdons application raises a question of law:
whether Bourdon was entitled to good time credit for the time he
was incarcerated at Glacier Manor. Bourdons application clearly
presented this issue, and the State had every opportunity to
contest Bourdons claim and present its case to Judge Zervos.
The State next argues that Bourdon is not entitled to
good time credit for the time he spent in Glacier Manor. As we
have previously pointed out, under Alaska law a prisoner is
entitled to a deduction of one-third of the term of imprisonment
... if the prisoner follows the rules of the correctional
facility in which the prisoner is confined.5 Correctional
facility is defined as a prison, jail, camp, farm, half-way
house, group home, or other placement designated by the
commissioner for the custody, care, and discipline of prisoners.6
In contrast, a state correctional facility is defined separately
as a correctional facility owned or run by the state.7 The
Commissioner has the duty to designate the correctional facility
to which a prisoner is ... committed and may do so without regard
to whether it is maintained by the state.8 The definition of
correctional facility therefore appears to include any placement
designated by the Commissioner to house prisoners.9 It is not
limited to state-run facilities.
Indeed, it would appear to be unfair to allow the
Department of Corrections to send a prisoner to a facility where
he would not receive good time. A prisoner sent by the
Department of Corrections to a private prison, because he would
not receive good time, would serve a longer sentence than the
prisoner the Department sent to a state-run institution.
The State relies on Valencia v. State10 in support of
its position that Judge Zervos erred in awarding Bourdon good
time credit for the time that he served in Glacier Manor. In
Valencia we held that the defendant was not entitled to good time
credit for the time he spent in a court-ordered residential
treatment program as a special condition of probation, although
he was entitled to Nygren credit for that time when his probation
was revoked.11 We held that Alaskas good time statute applied
only to prisoners who are serving sentences in correctional
facilities.12 Judge Zervos correctly recognized that our
decision in Valencia applies only to defendants serving time as
probationers in a court-ordered residential treatment program.
It does not apply to prisoners, such as Bourdon, who were placed
by the authority of the Department of Corrections in a
correctional facility.
The State contends that the key factor in determining
whether Bourdon was entitled to good time credit is whether the
Department of Corrections would forfeit his good time credit or
transfer him to a state-run facility if he violated the rules at
Glacier Manor. This argument is without merit because prisoners
are entitled to good time credit under AS 33.20.010(a) if they
follow[ ] the rules of the correctional facility in which they
are confined. The Department of Corrections does not have the
discretion to withhold good time credit from a prisoner under AS
33.20.010(a) unless he violates the rules of the correctional
facility where he is confined. Bourdon did not violate the rules
of Glacier Manor. He is entitled to good time credit.
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to further explain why I conclude
that the States arguments in this appeal have no merit.
The States first argument is that Bourdons petition for
post-conviction relief was legally deficient that the petition
failed to comply with Alaska Criminal Rule 35.1(d) because
Bourdon did not submit an affidavit that set out separately all
of the [f]acts within [his] personal knowledge.
But as Judge Zervos correctly observed, Bourdons claim
for relief did not rest on facts within [his] personal knowledge
in the sense that there were facts known to Bourdon that might
not otherwise be known to the State. Instead, Bourdons claim for
relief was based entirely on facts that were already known to the
State and were not in dispute: the fact that Bourdon was
arrested for violating his parole, the fact that the Parole Board
ordered Bourdon confined at Glacier Manor pending the Boards
revocation hearing, the dates of Bourdons confinement at Glacier
Manor, and the official correspondence and pleadings exchanged
between Bourdon and officials of the Department of Corrections as
he tried to convince them that he should be awarded good time
credit for the time he spent at Glacier Manor.
In its briefs to this Court, the State argues that
Bourdon knew other relevant facts, and that he was obliged to
file an affidavit containing these facts. But the facts to which
the State refers are not covered by Rule 35.1(d).
According to the State, Bourdon should have filed an
affidavit stating (1) that Glacier Manor has its own rules for
inmates, rules that differ in various ways from the rules that
govern inmate behavior at Lemon Creek (the Juneau prison run by
the Department of Corrections); and (2) that Bourdon would have
been transferred to Lemon Creek if he had violated Glacier Manors
house rules.
These facts were not within Bourdons sole knowledge,
nor could it even be said that they might not be known to the
State. It appears that these facts were known equally well to
both Bourdon and the State.
Furthermore, it was the State who wished to rely on
these facts because the State believed that these facts advanced
its argument that Bourdon was not entitled to good time credit
for his time at Glacier Manor.
Although Criminal Rule 35.1(d) requires defendants to
explain and support the factual bases for their claims, Rule
35.1(d) does not require defendants to submit affidavits
containing all other facts within their knowledge that might
conceivably defeat their claims. This is especially true in the
present case where, under Bourdons view of the law, and under
the superior courts view of the law, and (as I am about to
explain) under this Courts view of the law, the omitted facts
that the State complains about are irrelevant to Bourdons claim.
For these reasons, Judge Zervos correctly rejected the
States interpretation of Rule 35.1(d) and the States accompanying
contention that Bourdons petition failed to satisfy that rule.
I also note that the only prejudice which the State
claims to have suffered is that Judge Zervos held an evidentiary
hearing to allow Bourdon to supplement and refine his claims.
The States argument is flawed because no evidentiary hearing was
held in this case. Judge Zervos held an oral argument where the
attorneys explained and clarified their legal positions, but no
testimony or other evidence was presented at this hearing.
Instead, Judge Zervoss decision to grant Bourdons petition was
based on the facts recited in the documents filed by the parties
and, as I have already noted, those underlying facts were not in
dispute.
The States second argument on appeal is an attack on
Judge Zervoss ultimate ruling in this case the legal conclusion
that Bourdon is entitled to good time credit for the days he was
confined at Glacier Manor.
The State contends that prisoners are entitled to good
time credit only if they are serving their sentence in a
correctional facility operated by the Department of Corrections
and, thus, Bourdon is not entitled to good time credit for the
time he spent in Glacier Manor, a halfway house operated by
Gastineau Human Services.
The States position is completely at odds with the
governing statutes. Moreover, as revealed by the States
attorneys remarks to Judge Zervos at the oral argument in the
superior court, the States position is internally inconsistent.
The Alaska statute governing good time credit, AS
33.20.010, declares that every defendant convicted of an offense
under state law is entitled to a credit against their term of
imprisonment equaling one day for every three days that they
follow[] the rules of the correctional facility in which [they
are] confined. (Emphasis added)
The term correctional facility, as well as the
shorthand term facility, are defined in AS 33.30.901(4) as
meaning [any] prison, jail, camp, farm, half-way house, group
home, or [any] other placement designated by the commissioner for
the custody, care, and discipline of prisoners.
In contrast, AS 33.30.901(4) contains a separate, more
limited definition of the term state correctional facility. This
term means a correctional facility owned or run by the state. In
other words, state correctional facilities are a subset of the
larger category, correctional facilities.
Indeed, under AS 33.30.061, when the commissioner
exercises the authority (and fulfills the duty) to designate a
facility for each prisoner committed to the departments care, the
commissioner can make this designation without regard to whether
[the facility] is maintained by the state.
At the oral argument in the superior court, the States
attorney acknowledged that the Department of Corrections places
inmates in Glacier Manor. Thus, even though Glacier Manor is not
run by the state, it is still a correctional facility under the
definition codified in AS 33.30.901(4).
After Bourdons parole was revoked and he was returned
to the custody of the commissioner, the commissioner could have
designated Glacier Manor as the correctional facility in which
Bourdon would be housed. And, at the oral argument in the
superior court, the States attorney conceded that Bourdon would
be entitled to good time credit if this happened even though
Glacier Manor is not run by the State.
Moreover, AS 33.30.031 expressly authorizes the
commissioner to enter into contracts with other governments and
with private agencies to provide correctional facilities for
prisoners within the commissioners custody such as the prisons
in Arizona that house many Alaska offenders. These correctional
facilities are not run by the State of Alaska. Seemingly then,
under the States view of the law, prisoners housed in those
Arizona facilities would not be entitled to good time credit.
But at the oral argument in the superior court, the States
attorney conceded that those prisoners properly do receive good
time credit.
Despite the States attorneys concessions at the oral
argument in the superior court, the State continues to assert
that Bourdon is not entitled to good time credit for the time he
spent at Glacier Manor. In support of this proposition, the
State relies on this Courts decision in Valencia v. State, 91
P.3d 983 (Alaska App. 2004). According to the State, Valencia
holds that prisoners confined to halfway houses and other
residential treatment facilities are not entitled to good time
credit.
The State is wrong. Both Valencia and the prior
decision that it relies on, Parker v. State, 714 P.2d 802 (Alaska
App. 1986), involved defendants who were ordered into residential
treatment as a special condition of their probation. In other
words, these defendants were not serving prison sentences.
I acknowledge that the text of our decision in Valencia
may not expressly state that Valencia was on probation when he
was confined to the residential treatment program. However, this
fact can be easily inferred from the text of the decision. Our
opinion in Valencia repeatedly refers to Valencias court-ordered
placement at a residential treatment facility, and to the fact
that the issue of good time credit arose [after] the superior
court revoked ... Valencias probation. 91 P.3d at 983. Under
Alaska law, a court has no authority to sentence a defendant to
prison and then direct the Department of Corrections to place the
defendant in a particular facility or program. A sentencing
court can specify a particular treatment program or facility only
as a condition of probation.1 Moreover, the briefs filed in
Valencia (Court of Appeals File No. A-8527) clearly explain that
the defendant was confined in the residential treatment facility
as a probationer, not a prisoner.
Because the defendants in Valencia and Parker were
probationers, and not prisoners serving sentences of
imprisonment, they were not expressly covered by the good time
statute, AS 33.20.010. Valencias argument for good time credit
hinged on asking this Court to adopt an expansive interpretation
of that statute, beyond its literal wording.
In Valencia, we rejected the contention that AS
33.20.010 should be interpreted so broadly as to cover
probationers who were ordered to spend time in residential
treatment as a special condition of probation. But our decision
in Valencia casts no doubt on a prisoners entitlement to good
time credit if (in the words of AS 33.20.010) the prisoner
follows the rules of the correctional facility in which the
prisoner is confined.
For all of these reasons, Judge Zervos correctly
rejected the States contention that prisoners are not entitled to
good time credit unless they are housed at a correctional
facility run by the State. Under the pertinent statutes, it does
not matter who runs the correctional facility. Bourdon is
entitled to good time credit for the time he spent at Glacier
Manor.
_______________________________
1 Bourdon v. State, Alaska App. Memorandum Opinion and
Judgment No. 4644 (Dec. 11, 2002), 2002 WL 31761482.
2 AS 33.20.010(a). Bourdon was convicted under Former AS
33.20.010(a) (1995). However, the pertinent parts of this
statute are the same in the current version.
3 AS 33.20.010.
4 91 P.3d 983 (Alaska App. 2004).
5 AS 33.20.010(a).
6 AS 33.30.901(4).
7 Id.
8 AS 33.30.061(a).
9 See City of Kotzebue v. Dept of Corr., 166 P.3d 37, 43
n.28 (Alaska 2007) (noting that when the Commissioner contracts
with a facility to provide custody for Alaska prisoners he
necessarily designate[s] it as a correctional facility under AS
33.30.901(4)).
10 91 P.3d 983 (Alaska App. 2004).
11 Id.; see also Nygren v. State, 658 P.2d 141, 146
(Alaska App. 1983) (holding that a defendant is entitled to
credit for time served in a program that subjects him to
restrictions approximating those experienced by one who is
incarcerated).
12 Valencia, 91 P.3d at 984.
1 Rust v. State, 582 P.2d 134, 137-38 (Alaska 1978); State
v. Combs, 64 P.3d 135, 137 (Alaska App. 2003) ([The] designation
of the prison facility to which the prisoner is to be confined
... is committed to the administrative discretion of the
[Department] of Corrections, and not to the sentencing courts of
Alaska. ... [A] sentencing court does not have the authority to
designate a particular prison facility in which a prisoner is to
be confined.).
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