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NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH JAMES, )
) Court of Appeals No. A-9785
Appellant, ) Trial Court No. 3AN-05-6585 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2291 - January 7, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Paul Malin, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Marilyn J. Kamm, Assistant Attorney General, and Daniel S.
Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Bolger, Judge, and Stewart,
Senior Court of Appeals Judge.*
[Mannheimer, Judge, not participating.]
BOLGER, Judge.
When the Alaska Parole Board released Joseph James on mandatory parole,
the Board imposed several special conditions, including the requirement that he
* Sitting by assignment made pursuant to article IV, section 11, of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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participate in sex offender treatment. In March 2005, James appealed to the superior
court, contending that the special conditions were unconstitutional. In December 2005,
the Board revoked James's parole because he did not satisfy the sex offender treatment
condition. In January 2006, James appealed the parole revocation and moved to
consolidate his first appeal with the appeal challenging his parole revocation. The
superior court upheld James's conditions of parole and denied James's motion to
consolidate. We conclude that the Parole Board was authorized to impose special
conditions on James's mandatory parole release. We also conclude that the superior
court did not abuse its discretion when it denied James's motion to consolidate his
appeals.
Background
In 1979, Joseph James was convicted of committing lewd acts against a
child under the age of sixteen and spent three years in prison.1 While James was on
furlough in 1984, he attempted to sexually assault a woman, forced fellatio on a ten-year
old boy, and had sexual contact with a nine-year-old girl.
James was then charged and convicted of attempted sexual assault in the
second degree and three counts of sexual abuse of a minor. Superior Court Judge Jay
Hodges sentenced James to thirty years to serve with an additional eighteen years
suspended. Judge Hodges's sentence included several conditions of probation. Judge
Hodges ordered James to refrain from excessive drinking, submit to urine or blood
analysis, allow a probation officer to search him, not have contact with minor children
1 For a complete history of the somewhat complicated procedural posture and facts of
this case, see James v. State, 730 P.2d 811 (Alaska App. 1987) (James I); James v. State, 739
P.2d 1314 (Alaska App. 1987) (James II); James v. State, 754 P.2d 1336 (Alaska App. 1988)
(James III).
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outside the presence of another adult, and meet several other requirements. The
probation conditions did not expressly include sex offender treatment.
Prior to James's release on mandatory parole in 2005, James's probation
officer submitted a request to the Parole Board for supplemental conditions of mandatory
parole. The Board notified James of the special conditions of his parole, but James
submitted written objections to the conditions. The Board declined to modify the
conditions, which included a condition that required James to participate in sex offender
treatment and education classes. On March 26, 2005, James appealed the Board's
decision to impose special conditions on his parole.
After his release, James missed a sex offender education class and refused
to cooperate with his treatment. On December 8, 2005, the Board revoked James's
parole and ordered him to serve ten years, the amount of his earned good time. On
January 19, 2006, James filed a notice of appeal in superior court, contesting the parole
revocation. At the same time, James moved to consolidate this new appeal with the
appeal he filed in March 2005. Superior Court Judge Peter A. Michalski denied James's
motion to consolidate the appeals.
Judge Michalski ultimately upheld the Board's special conditions on
James's parole. James appeals Judge Michalski's decision, raising several constitutional
challenges to the Parole Board's decision to impose the special conditions of mandatory
parole.
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In this case the superior court acted as an intermediate court of appeal; we
independently review the Parole Board's decision.2 We review the denial of a motion
to consolidate for abuse of discretion.3
Discussion
The Parole Board was authorized to impose special
conditions on James's mandatory parole.
The legislature originally enacted the relevant parole and good-time statutes
in 1960. At that time, the good-time statute provided that a prisoner released on good-
time deductions with more than 180 days remaining to serve "shall be deemed as if
released on parole."4 The Parole Administration Act provided that a parolee's release
was subject to "such terms and conditions ... as the [Parole Board] may prescribe."5 This
relevant statutory language remained unchanged in 1979 and 1984 when James was
sentenced for his crimes.6
In Braham v. Beirne, this court recognized that prisoners "who are released
mandatorily under [the good-time statute] with greater than 180 days to serve under their
sentences are released 'as if released on parole.'"7 Therefore, we held that the Board has
2 Kuzmin v. State, Commercial Fisheries Entry Comm'n, 223 P.3d 86, 88 (Alaska
2009).
3 C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001).
4 Ch. 107, § 4, SLA 1960.
5 Ch. 81, § 8, SLA 1960.
6 See former AS 33.20.040(a) (1982 & Supp. 1983-1984); former AS 33.15.190 (1982
& Supp. 1983-1984).
7 Braham v. Beirne, 675 P.2d 1297, 1300 (Alaska App. 1984).
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the authority to set special conditions of parole for mandatory parolees, and that the
Board may revoke the parole of mandatory parolees for violation of the special
conditions.8
9
In 1985, the legislature repealed the 1960 Parole Administration Act and
enacted a new chapter on parole administration.10 The 1985 statute expressly codifies
a list of parole conditions that the Board can impose on discretionary or mandatory
parolees.11 The legislature also added a new statutory provision that clarified the
distinction between discretionary and mandatory parole.12 When the House Judiciary
Committee addressed the 1985 statute, it indicated that it "intend[ed] the provisions of
AS 33.16.010 relating to Parole to offer a system of discretionary and mandatory parole
consistent with the holding in Braham v. Beirne, ... whereby both [the mandatory and
discretionary parole] systems are the same except as to how the offender is placed on
parole."13
The special conditions of parole in the 1985 statute did not
violate the ex post facto clauses.
James argues that his special conditions of parole are based on the current
parole statute, enacted in 1985. He argues that these conditions violate the prohibition
8 Id.
9 Former AS 33.15 (1982).
10 Ch. 88, §§ 2, 7, SLA 1985 (enacting AS 33.16 and repealing AS 33.15).
11 AS 33.16.150.
12 AS 33.16.010.
13 1985 House Journal 821.
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on ex post facto laws because this statute was not effective when he was convicted in
1979 and 1984. The ex post facto clauses of the state and federal constitutions prevent
the legislature from enacting a statute that retroactively makes the punishment for a crime
more burdensome.14
As noted above, beginning in 1960, the Parole Board was authorized to
impose special conditions of parole. Such conditions could include "residential,
employment, and reporting requirements as well as prohibition of activities which would
otherwise be lawful (for example, drinking alcoholic beverages)."15 Such conditions
were valid as long as they were reasonably related to the parolee's rehabilitation and the
underlying offense.16
James does not argue that his special parole conditions were unrelated to
his offense, his prior record, or his rehabilitation. Instead, he argues that, before 1985,
the Parole Board was not authorized to impose any special conditions of parole on those
released on mandatory parole after deduction of good-time credits. But we have already
decided this issue in Braham : the Parole Board was authorized to set special conditions
of mandatory parole when James committed his offenses in 1979 and 1984, based on the
statutes enacted in 1960.17 Therefore, the enactment of a new parole statute in 1985 did
not increase James's punishment in a way that violated the ex post facto clauses.
14 Lapp v. State, 220 P.3d 534, 539 (Alaska App. 2009).
15 Morton v. Hammond , 604 P.2d 1, 3 (Alaska 1979).
16 Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
17 Braham , 675 P.2d at 1300.
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The special parole conditions imposed when James was
released in 2005 did not constitute double jeopardy.
James argues that the special conditions on his 2005 parole constituted
double jeopardy because they imposed a second punishment for his offenses in addition
to the probation conditions originally imposed by the sentencing judges. The double
jeopardy clauses of the state and federal constitutions forbid any increase in a sentence
after it has been meaningfully imposed.18 But generally, the revocation of parole does
not constitute double jeopardy because the authority to impose and revoke parole is
inherent in a criminal sentence.19
Again, James's success depends on his contention that the Parole Board
lacked the authority to impose special conditions for those released on mandatory parole.
But the authority for the Parole Board to impose special conditions on a mandatory
parolee was based on statutes in effect since 1960. Therefore, the special conditions
imposed on James's parole release were inherent in the criminal judgments imposed by
the sentencing courts when James was convicted in 1979 and 1984. Since these
conditions were authorized by James's original sentences, they did not increase his
sentence when they were imposed in 2005.
The special conditions imposed by the Parole Board did not
violate the doctrine of separation of powers.
James argues that the imposition of special conditions by the Parole Board
(rather than the court) violates the doctrine of separation of powers. The separation of
18 Lapp , 220 P.3d at 537.
19 Hill v. State, 22 P.3d 24, 29 (Alaska App. 2001) (citing Reyes v. State, 978 P.2d 635,
639 (Alaska App. 1999)).
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powers doctrine safeguards the independence of each of the three branches of
government by limiting the authority of each branch to interfere with powers that have
been delegated to the other branches.20 This doctrine "requires that the blending of
governmental powers will not be inferred in the absence of an express constitutional
provision."21
The text of the constitution does not support James's arguments that parole
conditions are part of a function constitutionally entrusted to the judiciary. There is an
express constitutional provision regarding the parole system in the constitutional article
defining the powers of the executive branch: "Subject to procedure prescribed by law,
the governor may grant pardons, commutations, and reprieves, and may suspend and
remit fines and forfeitures. This power shall not extend to impeachment. A parole
system shall be provided by law."22 There is no similar provision discussing any aspect
of parole administration in the article defining the judicial branch.
Moreover, we have previously recognized that the sentencing function is
not assigned to the exclusive jurisdiction of either the judicial or the executive branch:
"The administration of probation is the responsibility of the judicial branch, whereas the
administration of parole is the responsibility of the executive branch."23 While "the
superior court has broad authority over the conditions of a defendant's probation, another
governmental body - the Board of Parole - controls the conditions of a defendant's
20 Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007).
21 Bradner v. Hammond, 553 P.2d 1, 7 (Alaska 1976).
22 Alaska Const., art. 3, § 21.
23 See Smith v. State, Dep't of Corr., 872 P.2d 1218, 1228 (Alaska 1994) (quoting Paul
M. Bater, The Constitution as Architecture: Legislative and Administrative Courts Under
Article III , 65 Ind. L.J. 233, 274 (1990)).
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parole."24 The imposition of special conditions of parole by the Parole Board is
consistent with this constitutional grant of authority. Therefore, the imposition of
conditions of parole by the Parole Board does not violate the doctrine of separation of
powers.
James has not established a violation of his privilege against
self-incrimination.
James argues that the special conditions requiring him to participate in sex
offender treatment violate his privilege against self-incrimination. It is true that the state
may not revoke probation or parole in response to a valid invocation of the privilege
against self-incrimination.25 But James did not raise this argument in his brief on appeal
to the superior court. He has therefore abandoned this argument.26
Even if James had preserved this argument, he would not prevail. A
parolee cannot validly invoke the privilege against self-incrimination when there is no
realistic threat of incrimination.27 In order to show a violation of the privilege, James
must show that his parole conditions required him to make statements that would subject
him to a realistic threat of incrimination. But the State granted James transactional
immunity for any statements he was required to make during treatment.
24 State, Dep't of Corr. v. Lundy, 188 P.3d 692, 696 (Alaska App. 2008).
25 Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995).
26 See Bickford v. State, Dep't of Educ. and Early Dev., 155 P.3d 302, 313 (Alaska 2007)
(claims not raised in superior court appeal of administrative action are beyond scope of
supreme court appeal).
27 Gyles, 901 P.2d at 1148.
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Because he received immunity from prosecution, James did not face any
realistic threat of incrimination. He therefore has not established that his parole
conditions violated his privilege against self-incrimination.
James has not shown that Judge Michalski abused his
discretion when he denied the motion to consolidate.
James originally appealed from the Parole Board decision imposing his
special conditions of parole release. Several months later, after his parole was revoked,
he filed a motion to consolidate, asking the superior court to allow him to raise issues
related to the order revoking his parole. James now argues that the superior court abused
its discretion by failing to recognize and grant his motion to consolidate as a motion to
amend his points on appeal.28
We conclude that this argument is moot. The only issue that James sought
to raise in his appeal from the parole revocation was the ex post facto issue we have just
resolved: James claimed that his revocation was based on conditions of parole that were
not authorized by the law in effect at the time of his crimes. In support of his request for
consolidation, James noted that the decision in his appeal from the imposition of his
parole conditions would moot this point in his appeal from his revocation. He was
correct on this point. James's appeal from the parole revocation is now moot because
we have decided that the conditions imposed by the Parole Board were valid.
We also conclude that the superior court did not abuse its discretion when
it denied James's motion to consolidate. James appears to argue that the court should
28 See Amos v. State, 46 P.3d 1044, 1045 (Alaska 2002) (reviewing for abuse of
discretion this court's decision not to allow defendant to supplement a merit appeal with
briefing on a sentence appeal).
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have recognized his motion as a motion to amend his points on appeal. He relies on
cases reviewing a motion to amend the points in a criminal appeal29 and a motion to
amend a civil complaint.30
But this case is distinguishable from the cases James relies upon. This is
not a case where a litigant seeks merely to add an additional argument regarding the
validity of an administrative decision. James was seeking to add a separate appeal from
a separate administrative decision based on a separate record. The superior court could
conclude that this procedure would unreasonably complicate the appeal.
Miscellaneous issues
James appears to be arguing that his revocation violated due process
because the Parole Board had no authority to impose special conditions on his parole.
James does not clarify why this is a due process violation. This argument is moot
because, as noted above, the Parole Board did have authority to impose the special
conditions on James's mandatory parole.
James also argues that the superior court erred by failing to rule on some
of his arguments. He first argues that the State was bound by a contract theory based on
a letter from DOC indicating that the Parole Board would apply 1984 law to his parole
release. This argument is adequately addressed in the foregoing decision. James could
not prevail even if the State was bound by this letter because the law in 1984 authorized
the Parole Board to impose special conditions on his parole release.
29 Id . at 1045.
30 Hallam v. Holland Am. Line, Inc ., 27 P.3d 751, 755 (Alaska 2001).
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James similarly argues that the superior court failed to address his argument
that he had a liberty interest related to his mandatory release. But the superior court's
ruling on this issue is implicit in its ruling on the due process issue James raised in that
court. The superior court assumed that James had a liberty interest at stake when the
Parole Board set his parole conditions and ruled that James received adequate due
process when he was allowed to submit comments during that procedure.
Finally, James argues that the superior court failed to address his argument
that the Parole Board lacked personal jurisdiction to impose conditions on his parole.
The answer to this issue is also implied in the ex post facto ruling affirmed in the
foregoing opinion. The Parole Board had statutory authority to exercise personal
jurisdiction over James when he was released on mandatory parole, based on statutes in
effect since 1960.
Conclusion
We consequently AFFIRM the superior court decision upholding the
decision of the Alaska Board of Parole.
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