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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
| BOBBY LEE McKINLEY, | ) |
| ) Court of Appeals No. A-10009 | |
| Appellant, | ) Trial Court No. 3AN-03-12733Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2234 September 11, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: David Reineke, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Ann
B. Black, 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 Bolger, Judges.
BOLGER, Judge.
Bobby Lee McKinley argues that he should receive
credit against his sentence of imprisonment for the time he spent
in transitional housing while attending aftercare treatment at
the Salvation Army Adult Rehabilitation Program. We conclude
that, although McKinley was placed in residential treatment at
the Salvation Army by a court order, his residence at the program
for aftercare did not approximate incarceration because the
program did not require residency, and because the facility did
not require twenty-four hour custody or supervision.
Background
McKinley was indicted on one count of second-degree
theft1 on January 14, 2004, and was convicted of that charge on
September 6, 2006. Prior to the entry of McKinleys no-contest
plea, the superior court ordered McKinley to enter the Salvation
Armys six-month residential treatment program as a condition of
his pretrial release, and he remained at that facility until he
completed residential treatment. Immediately after McKinley
completed the residential treatment program, he entered the
Salvation Armys aftercare program. McKinley missed two weekly
group meetings and was consequently discharged from the aftercare
program and evicted from the Salvation Army facility.
While participating in the aftercare program, McKinley
lived in one of the Salvation Armys grad rooms. These rooms
provide optional transitional housing for residential program
graduates enrolled in the Salvation Armys aftercare program. In
order to remain in these facilities, the residents must comply
with the Salvation Armys house rules.
Superior Court Judge Philip R. Volland granted
McKinleys request for credit against his sentence for the time he
spent in residential treatment. But McKinley also filed a motion
requesting credit for the time he resided at the Salvation Army
facility during aftercare. At a hearing on McKinleys motion,
Larry Dean Bundy, the director of the Salvation Army program,
testified that McKinleys residence during the aftercare program
was essentially at the same location as the residential treatment
facility, but that McKinley had significantly more freedom.
Specifically, participants in the aftercare program could sign
out registering their destination and expected time of return
from six oclock in the morning until curfew at eleven oclock at
night.
Judge Volland denied McKinleys request for credit for
the time he attended the Salvation Armys aftercare program. The
judge found that McKinley voluntarily chose to reside at its
transitional housing and to be subjected to the Salvation Armys
rules. Judge Volland also found that the Salvation Army
aftercare program allowed McKinley to basically go about...,
[and] do anything and everything that someone who is not in an
incarcerative facility can do. Judge Volland ruled that McKinley
was not entitled to credit for any of his time at the Salvation
Army facility after he completed the residential treatment
program.
McKinley now appeals.
Discussion
Alaska Statute 12.55.025(c) requires a sentencing
judge to give a defendant credit for time spent in custody
pending trial, sentencing, or appeal... . In Nygren v. State, we
held that this statute requires credit for time spent in
residential treatment, as long as the defendant is subjected to
restrictions approximating those experienced by one who is
incarcerated.2 We listed a number of criteria that define a
custodial facility:
[T]heir 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.3
In this case, we address three of these Nygren criteria to
determine whether McKinley was in custody during the aftercare
program: (1) whether the program required residency at the
Salvation Army facility, (2) whether the facility required twenty-
four hour physical custody or supervision, and (3) whether a
court order required McKinley to reside at the facility.4
The first two criteria suggest that McKinley was not
in custody during the aftercare program. First, Judge Volland
found that Salvation Army did not require McKinley to reside at
the program while he was enrolled in aftercare. This finding is
supported by Mr. Bundys statement that residence in transitional
housing during aftercare was an option for those who had
graduated from the residential program. The only required
attendance at the Salvation Army facility was for a one-hour
group session held once each week. Judge Vollands finding is
also supported by McKinleys testimony admitting that if he had
different housing, he could have resided elsewhere. The record
thus supports Judge Vollands finding that the aftercare program
did not require residency.
The second Nygren criterion is twenty-four hour
physical custody or supervision. Judge Volland found that those
patients who chose to reside at the Salvation Army facility
during aftercare were free to do anything during the day subject
only to the obligation to sign out. This finding is supported by
Bundys testimony that aftercare patients who chose to reside in
transitional housing could leave as early at 6:00 a.m. and not
return until 11:00 p.m. An aftercare patient could choose to
spend the whole day visiting with family, going shopping, or even
going to the state fair. Thus, during the aftercare program,
McKinley was not subject to twenty-four hour physical custody or
supervision.
McKinley argues that his aftercare program was similar
to the work-release program that we approved for credit in State
v. Fortuny.5 But Fortuny involved a residential program where
the residents could be released only for a limited purpose: for
work subject to program supervision.6 In contrast, McKinley was
free to leave the Salvation Army facility with only a limited
restriction he had to state his plans when he signed out. This
sign-out requirement did not transform McKinleys residence in
transitional housing into the twenty-four hour supervision that
approximates incarceration.
The third Nygren criterion is less conclusive. Judge
Volland recognized that it was questionable whether a court order
required McKinley to reside at the Salvation Army facility during
his aftercare. When McKinley originally requested release to the
Salvation Army program, his attorney only referred to the six-
month residential component of the program. But the written
court order simply stated that McKinley was released to SAARP,
suggesting that he was required to reside at the Salvation Army
facility indefinitely. At best, the court order was ambiguous
and McKinley has a colorable argument that he was required to
stay at the facility pending further court order.
But even assuming the superior court ordered McKinley
to reside at the Salvation Army during aftercare, we have
previously recognized that a court order alone does not turn
conditions of pretrial release into custodial confinement. For
example, a court order for twenty-four hour electronic home
monitoring does not require credit for time served because
electronic monitoring does not approximate custodial
incarceration.7 Likewise, a court order for twenty-four hour
third-party custody does not establish that such a release
approximates custodial incarceration.8 We accordingly conclude
that McKinley was not necessarily subjected to incarceration
during his aftercare simply because his residence there was
designated by a court order. Regardless of the court order,
McKinleys aftercare did not approximate incarceration because the
aftercare program did not require residency and because the
facility did not require twenty-four hour custody or supervision.
In closing, we note that this case does not involve
the application of AS 12.55.027, a statute that applies to
sentences imposed on or after July 1, 2007.9 We express no
opinion on the application of this statute because McKinley was
sentenced before it became effective.
Conclusion
Judge Volland correctly concluded that McKinley was
not entitled to credit for the time he resided at the Salvation
Army transitional housing during his aftercare. We therefore
AFFIRM the superior court order denying McKinley credit for time
served.
_______________________________
1 AS 11.46.130(a)(1).
2 658 P.2d 141, 146 (Alaska App. 1983).
3 Id.
4 We accept the findings of the trial court regarding the
conditions of release unless those findings are clearly
erroneous. But we review de novo whether the conditions
approximate incarceration. See Matthew v. State, 152 P.3d 469,
472 (Alaska App. 2007).
5 42 P.3d 1147 (Alaska App. 2002).
6 Id. at 1149-51.
7 See Ackerman v. State, 179 P.3d 951 (Alaska App. 2008);
Matthew, 152 P.3d at 473.
8 See Ackermann v. State, 716 P.2d 5, 6 (Alaska App. 1986).
9 See ch. 24, 36(a), SLA 2007.
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