|
You can of the Alaska Court of Appeals opinions.
|
|
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
errors to the attention of the Clerk of the Appellate Courts:
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 McKINLEY, )
) Court of Appeals No. A-10790
Appellant, ) Trial Court No. 3AN-08-8797 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
Appellee. No. 2357 - May 4, 2012
Appeal from the Superior Court, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Under AS 12.55.025(c), a sentencing judge must give a defendant credit
against their sentence for time spent in custody pending their trial, sentencing, or appeal.
In Nygren v. State , 658 P.2d 141 (Alaska App. 1983), we interpreted this statute as
requiring a court to give a defendant credit for time spent in non-prison residential
treatment, if the defendant "is subjected to restrictions approximating those experienced
----------------------- Page 2-----------------------
by one who is incarcerated." Id. at 146. We also set forth the criteria that a court should
consider when assessing whether a defendant's residence at a facility qualified as
"custody" for purposes of AS 12.55.025(c). Ibid .
The Nygren line of cases governed this aspect of Alaska law for close to a
quarter-century. Then, in 2007, the legislature enacted a new statute, AS 12.55.027, that
defines the situations in which defendants are entitled to credit against their sentences for
time spent in these non-prison residential settings.
The question presented in this appeal is whether this statute should be
interpreted in accordance with its wording, or whether the statute should be interpreted
more broadly than its wording suggests, so that defendants would continue to receive
credit against their sentences under the more liberal rule established in the Nygren line
of cases.
For the reasons explained here, we conclude that the statute should be
interpreted in accordance with its wording, even though the statute may impose a more
restrictive rule than is found in the Nygren line of cases.
Underlying facts
The defendant in this case, Bobby McKinley, was charged with first-degree
vehicle theft and second-degree theft. While he was awaiting trial on these charges, as
a condition of McKinley's bail, the superior court required him to enter a residential
treatment facility - the Salvation Army's adult rehabilitation program. McKinley
entered the Salvation Army program on December 4, 2008, and he stayed there for five
months, until he was discharged on May 3, 2009.
In April of the following year (2010), McKinley's criminal case was
resolved: he pleaded guilty to the vehicle theft charge, and he received a sentence of
- 2 - 2357
----------------------- Page 3-----------------------
60 months' imprisonment with 42 months suspended (i.e., 18 months to serve). On the
same day that he received this sentence, McKinley filed a motion asking the superior
court to give him 5 months' credit against this sentence for the time he spent in the
Salvation Army residential program.
Superior Court Judge Jack W. Smith concluded that McKinley's motion
was governed by the provisions of AS 12.55.027, and that the question of whether
McKinley was entitled to credit against his sentence hinged on whether the Salvation
Army treatment program satisfied the requirements set forth in AS 12.55.027(c).
During the litigation of this question, the primary issue was whether the
Salvation Army program met the requirement set forth in subsection (c)(2) of the statute
- that participants in the program "be confined at all times to the grounds of the
facility[,] or be in the physical custody of an employee of the facility, except for court
appearances, meetings with counsel, and work required by the treatment program and
approved in advance by the court".
The Salvation Army's director of rehabilitation services, Dean Bundy,
submitted a lengthy letter describing the program, and he later supplemented this
description with testimony. Based on Mr. Bundy's description of the operation of the
program, Judge Smith concluded that McKinley was entitled to only 30 days' credit
against his sentence, not 5 months.
According to Bundy's letter and testimony, the Salvation Army program
has six phases of treatment, each with differing levels of restriction on the activities of
the participants. During the first phase of treatment, participants are essentially
forbidden from leaving the facility. However, beginning with the second phase,
participants are allowed more freedom. In particular, second-phase participants can be
granted "therapeutic" passes to attend outside treatment and counseling sessions such as
those offered by AA or NA (Narcotics Anonymous). In fact, the Salvation Army
- 3 - 2357
----------------------- Page 4-----------------------
requires participants to attend AA / NA community-based sessions, a minimum of twice
per week.
In addition, beginning with the second phase, participants can receive
"buddy" passes that allow them to leave the facility for up to three hours (on weekends,
up to six hours) in the company of another, more senior program participant. Beginning
with the fourth phase, participants are eligible for overnight family visit passes twice per
month. And in the sixth phase, participants are eligible for 24-hour therapeutic sponsor
passes or family passes, up to twice per month on alternate weekends.
Based on the fact that participants in the Salvation Army program are
permitted to leave the facility without staff supervision beginning with the second phase
of their treatment, Judge Smith concluded that only the first phase of the Salvation
Army's program satisfied the requirements of AS 12.55.027(c)(2). Accordingly, he gave
McKinley credit against his sentence for this first phase only - a total of 30 days.
Judge Smith noted that the requirements of subsection 027(c)(2) were more
restrictive than the Nygren line of cases. Under Nygren , a defendant might receive credit
against their sentence even though the defendant's treatment program granted
participants unsupervised absences - as long as those absences were of specified
duration and for specified purposes. See Nygren v. State , 658 P.2d 141, 146 (Alaska
App. 1983) (stating that one of the criteria of a qualifying residential program was that
"any periods during which residents [are] permitted to leave the facility [must be]
expressly limited, both as to time and purpose").
(We applied this rule in Potter v. State , unpublished, Alaska App.
Memorandum Opinion 4569 (May 1, 2002), 2002 WL 818059. In Potter , we held that
the defendant was entitled to credit against his sentence for time spent at the Cordova
Community Residential Center, even though he was permitted various unsupervised
absences from the facility. We noted that Potter "could leave the facility only with
- 4 - 2357
----------------------- Page 5-----------------------
authorization", and that he "was required to travel directly to and from an approved
location." Id. at *2.)
Judge Smith also indicated that he believed that AS 12.55.027(c) was so
restrictive that it defeated some of the policies it was intended to promote. The judge
explained:
The Court: [O]ne of the underlying goals of
incarceration is rehabilitation, [and] it is essential to foster a
system that provides opportunities for drug and alcohol
treatment, life skills training, and education.
The reality is that the prisons and jails ... provide few
opportunities for inmates to better themselves and their future
quality of life. [On the other hand], programs such as [the
Salvation Army program], Akeela House, etc., are designed
to provide treatment and support for every step of the
rehabilitation process.
[Because AS 12.55.027(c) forces] defendants to
choose between [staying in] prison and receiving credit for
time served, and going to a treatment program where they
will not receive credit, [this] creates a disincentive for
seeking necessary treatment.
... [A]lthough [the Salvation Army program allows]
opportunities for unsupervised leave, it also imposes rigid
restrictions on participants: hourly bed checks, significant
time confined to the facility, daily drug tests, hours of
required classes[.] [It also offers] programs including, but
not limited to, drug and alcohol treatment, GED, fatherhood
[training], anger management, and spirituality training.
Nevertheless, Judge Smith concluded that he was required to apply the
statute as written, and that McKinley was therefore not entitled to credit against his
- 5 - 2357
----------------------- Page 6-----------------------
sentence for the second and subsequent phases of his residence at the Salvation Army
program - because, during those phases of his treatment, McKinley was granted
unsupervised absences from the facility for various purposes.
Accordingly, Judge Smith granted McKinley credit against his sentence for
the 30 days he spent in the first phase of the Salvation Army's program, but the judge
denied McKinley credit for the second and subsequent phases (the remaining 121 days).
The legislative history of AS 12.55.027
AS 12.55.027 began life as section 6 of the House Judiciary Committee's
Substitute for House Bill 90 (25th Legislature). Although this bill was sponsored by
Representative Ralph Samuels, portions of the bill were drafted by the Department of
Law. 1 Rep. Samuels introduced a representative of the Department, Assistant Attorney
General Anne Carpeneti, who proceeded to describe the proposed bill section by
section. 2
In her remarks to the Committee, Ms. Carpeneti explained that section 6 of
the bill - the portion that ultimately became AS 12.55.027 - "would enact standards
that the courts must follow [when] deciding ... whether to give credit against a term of
imprisonment for time spent in a treatment facility". 3 According to Carpeneti, the
standards proposed in section 6 of the bill "follow[ed] decisional law to a great
degree". 4
1 Minutes of the House Judiciary Committee for April 10, 2007 @ 1:13:33.
2 Minutes, House Judiciary Committee, April 10, 2007 @ 1:11:26.
3 Id. @ 1:26:34.
4 Ibid.
- 6 - 2357
----------------------- Page 7-----------------------
Carpeneti explained that the Department of Law's rationale for proposing
this statute was to make sure that "judges throughout the state [were] reasonably
consistent when granting credit against a term of imprisonment". 5 According to
Carpeneti, the standards set forth in section 6 "pretty much mirror[ed] what the courts
have [already] set out in Nygren". 6
However, under the version of the bill that the Department of Law was
proposing, a defendant would not receive credit against their sentence for participation
in a residential treatment program unless the defendant was "confined at all times to the
grounds of the facility or [was] in the physical custody of an employee of the
facility". 7 As we explain later in this opinion, this provision was more restrictive than
the Nygren line of cases.
When Committee Chair Jay Ramras suggested that the bill's criteria for
treatment programs were "too specific", given the treatment programs currently
available, Ms. Carpeneti responded that the proposed bill would not limit a sentencing
court's authority to "fashion the [defendant's] sentence based on a particular
program". 8
This response was technically true, but not responsive to Representative
Ramras's concerns. The proposed bill did not deal with a judge's sentencing authority.
Rather, it dealt with the question of whether defendants would receive credit against their
sentences for the time they spent at a residential treatment program to which they were
committed as a condition of release.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
- 7 - 2357
----------------------- Page 8-----------------------
When Rep. Ramras continued to express reservations about the content of
the proposal, Carpeneti assured him that the proposed statute "merely reflect[ed] past
court rulings". 9
Steve Christopher, chief operations manager of Alaska Monitoring
Services, suggested that the wording of subsection (c)(2) would be counter-productive,
because it would require the employees of a treatment program to personally escort
defendants whenever they left the facility for any purpose. 10 Mr. Christopher noted that
many treatment programs currently allowed defendants to work in the community
without an escort. 11 Rep. Samuels responded that, according to the statistics he had seen,
treatment programs made no difference to recidivism rates - and he observed that
"[people] who are in jail are not committing crimes while [they are] there". 12
Rep. Ramras then asked Christopher if the language of subsection (c)(2) -
that is, the requirement that program participants never leave the grounds of the facility
unless they were personally supervised by a staff member - would affect the operation
of the halfway house in Fairbanks. Christopher said that he did not know, but he pointed
out that the halfway house currently did not have enough staff to escort all of its clients
whenever they went out into the community, as would be required by subsection
(c)(2). 13
Quinlan Steiner, the Director of the Public Defender Agency, added that
subsection (c)(2) - the requirement that a defendant be in the physical custody of a staff
9 Id. @ 1:33:11.
10 Id. @ 2:17:46.
11 Ibid.
12 Ibid.
13 Ibid.
- 8 - 2357
----------------------- Page 9-----------------------
member whenever the defendant was not within the grounds of the facility - might
make it unreasonably difficult for a defendant to visit their attorney or attend court
hearings, due to a lack of sufficient staff. 14 Joshua Fink, the Director of the Office of
Public Advocacy, added that subsection (c)(2) would create a similar difficulty for
participants in the Salvation Army's treatment program, because that program required
participants to have a job. 15 He urged the Committee to contact the various treatment
providers to find out what types of out-of-facility activities were required by their
16
treatment programs.
Three days later, during the Judiciary Committee's continued hearing on
HB 90, Rep. Samuels offered an amendment to subsection (c)(2) which made exceptions
to the rule that defendants had to be personally supervised by staff whenever they left the
grounds of the facility. Under this amendment, defendants would have to be "confined
at all times to the grounds of the facility or be in the physical custody of an employee of
the facility, except for court appearances or meetings with counsel". 17 This amendment
was approved without objection. 18
Apparently prompted by this amendment to subsection (c)(2), Rep. Ramras
offered an additional amendment that would allow a treatment program to qualify for
later credit against a defendant's sentence even if the defendant was allowed to leave the
facility grounds unsupervised, as long as the absence was for the purpose of "work or
14 Id. @ 2:41:36.
15 Id. at 2:57:24.
16 Ibid.
17 Minutes of the House Judiciary Committee for April 13, 2007 @ 2:19:00.
18 Ibid.
- 9 - 2357
----------------------- Page 10-----------------------
traveling to or from work". 19 Rep. Ramras explained that his amendment was intended
to cover defendants who participated in treatment programs that required their
participants to work as part of the treatment. 20
Ms. Carpeneti spoke against this proposed amendment. She told the
Committee that the Department of Law's position was that Nygren credit (i.e., credit
against a defendant's sentence of imprisonment) was supposed to be awarded only for
treatment programs that were similar to incarceration - and that any treatment program
which allowed participants to leave the facility, unsupervised, in order to work was not
"similar to incarceration". Thus, Carpeneti argued, defendants should not receive credit
against their sentences for time spent at a treatment program if that program allowed
them to leave the facility grounds, unsupervised, to engage in employment. 21
Although Carpeneti's remarks may have accurately reflected the
Department of Law's position on this issue, Carpeneti failed to explain that the
Department's position was at odds with the existing Nygren case law.
In State v. Fortuny, 42 P.3d 1147, 1150-52 (Alaska App. 2002), this Court
rejected the State's argument that a defendant should be deemed ineligible for Nygren
credit because his residential treatment program allowed him to be absent from the
facility, sometimes for up to fifty hours a week, to engage in employment. In Fortuny ,
we noted that the clinical staff at the defendant's treatment program "view[ed] work
release as part of the treatment regimen", id. at 1151, and we held that the defendant
"should receive full credit for the days he resided at [the residential treatment program]
19 Id. @ 2:23:08.
20 Ibid.
21 Ibid.
- 10 - 2357
----------------------- Page 11-----------------------
under court order, even [though] he was authorized to spend many hours away from the
treatment facility on work release." Id. at 1152.
After Carpeneti spoke against giving Nygren credit to defendants whose
treatment programs allowed them to leave the facility to engage in employment,
Representative Max Gruenberg offered a compromise amendment. Under Rep.
Gruenberg's proposal, a treatment program would qualify for credit against a defendant's
sentence, even if defendants were allowed unsupervised absences from the facility
grounds for employment purposes, but only if the defendant's work "[was] part of the
treatment program and [was] specifically approved by the court." 22
Rep. Ramras then repeated his support for this concept. He told the
Committee that he knew of a situation where a young offender attended and successfully
completed a treatment program, and he wondered what the young offender would have
done if the treatment program had contained a work component - specifically, what the
young offender would have done if she had known that, by complying with the work
component of the program, she would thereby forfeit the credit against her sentence.
Rep. Ramras urged the Committee not to "restrict [treatment alternatives] that will help
people become productive members of society". 23
Shortly afterwards, Representative Lindsey Holmes told the Committee that
Mr. Steiner had handed her proposed wording for a revised subsection (c)(2). 24 Under
this proposal, (c)(2) would state that defendants participating in qualifying treatment
programs
22 Id. @ 2:27:28.
23 Ibid.
24 Id. @ 2:30:39.
- 11 - 2357
----------------------- Page 12-----------------------
must be confined at all times to the grounds of the facility or
be in the physical custody of an employee of the facility,
except for court appearances, meetings with counsel, and for
work as required by the treatment program[.] 25
Rep. Samuels spoke in opposition to this proposal. Echoing Carpeneti's
earlier comments, Rep. Samuels argued that if a person was able to work off-site while
attending a treatment program, this "[was] not like being in jail", and people in this
situation should not receive credit against their sentence. 26
Rep. Gruenberg then renewed his proposal for the compromise language,
"unless the person is at work or traveling to or from work as required by the treatment
program and as specifically approved by the court". 27 There was no objection to Rep.
Gruenberg's proposal, and it was adopted. 28
A few minutes later, House Bill 90 (as just amended) was passed out of the
Judiciary Committee. 29 Section 6 of this bill - the provision that engendered so much
debate - was ultimately enacted as SLA 2007, chapter 24, § 20, and it became
AS 12.55.027.
The final version of AS 12.55.027(c)(2) contains the language that was
hammered out in the House Judiciary Committee:
(c) To qualify for credit against a sentence of
imprisonment for time spent in a treatment program, the
25 Ibid .
26 Ibid.
27 Ibid.
28 Ibid.
29 Id. @ 2:37:56.
- 12 - 2357
----------------------- Page 13-----------------------
treatment program ... must impose ... restrictions on a
person's liberty [which include] the requirement that a
participant in the program
. . .
(2) must be confined at all times to the grounds
of the facility[,] or be in the physical custody of an
employee of the facility, except for court appearances,
meetings with counsel, and work required by the
treatment program and approved in advance by the
court[.]
Now that we have described this legislative history, we turn to McKinley's
argument on appeal.
McKinley's argument on appeal
Although McKinley asked Judge Smith to give him credit against his
sentence for the 151 days he spent in the Salvation Army's residential treatment
program, Judge Smith gave McKinley only 30 days' credit - the 30 days that McKinley
spent in phase one of the Salvation Army program.
As we have explained, Judge Smith's decision was based on the wording
of AS 12.55.027(c)(2). Under this subsection of the statute, a treatment program does
not qualify for sentencing credit if the program allows unsupervised absences from the
facility for any purpose except the three purposes specified: "court appearances,
meetings with counsel, and work required by the treatment program and approved in
advance by the court".
McKinley argues that, despite its wording, subsection (c)(2) was intended
to allow other types of unsupervised absences. McKinley points out that Assistant
Attorney General Carpeneti repeatedly told the House Judiciary Committee that the
- 13 - 2357
----------------------- Page 14-----------------------
statute was intended to codify the Nygren line of cases - that the standards set forth in
the statute "pretty much mirror[ed] what the courts have [already] set out in Nygren", and
that the statute "merely reflect[ed] past court rulings".
As we explained earlier, under the Nygren line of cases, a treatment
program will qualify for Nygren credit even if program residents are allowed to leave the
facility without immediate personal supervision, so long as "[the] periods during which
residents [are] permitted to leave the facility are expressly limited, both as to time and
purpose". Nygren , 658 P.2d at 146; see also Fortuny , 42 P.3d at 1151-52. Based on this,
McKinley suggests that we should interpret subsection (c)(2), not according to its
wording, but according to the Nygren rule.
But even if the Department of Law was mistaken in telling the House
Judiciary Committee that their proposed statute was simply a codification of the Nygren
rule, this does not mean that we can disregard the wording of the statute and continue to
apply the Nygren rule. The true question here is whether that the Department of Law's
description of the proposed statute misled the Committee as to the meaning of the
language contained in subsection (c)(2) of the statute. And the record of the proceedings
in front of the Judiciary Committee - in particular, the debate over the precise wording
of subsection (c)(2) - demonstrates that the Committee members fully understood the
restrictions they were placing on the types of treatment programs that would qualify for
sentencing credit.
As we have explained, the Department of Law's original proposal was that
no unsupervised absences would be allowed - and everyone understood the provision
to mean exactly that.
Various members of the Judiciary Committee, as well as various people
testifying in front of the Committee, criticized this approach on the ground that (1) there
were valid reasons for allowing program participants to leave the grounds of the
- 14 - 2357
----------------------- Page 15-----------------------
treatment facility, and (2) treatment programs simply did not have sufficient numbers of
staff to satisfy the requirement that every off-facility activity be personally supervised
by a staff member.
To answer these concerns, the Committee first amended the Department of
Law's wording to allow unsupervised absences for court hearings and meetings with
attorneys. Then some Committee members argued in favor of expanding the language
again, this time to include absences for off-site work, because many treatment programs
had work components. The Committee finally reached a compromise solution on this
issue - allowing unsupervised absences for work, but only if the treatment program
required the work, and only if the sentencing court approved it.
In other words, even though the final version of subsection (c)(2) is more
restrictive than the Nygren rule it superseded, and even though the Committee members
might not have understood that they were changing the law, it is clear that the Committee
members understood the meaning of subsection (c)(2) - specifically, that unsupervised
absences from treatment programs would be strictly limited to the three purposes
specified in the statute.
As Judge Smith noted when he issued his decision, there may be good
reasons to allow other types of unsupervised absences from treatment programs. As the
judge observed, one of the underlying goals of penal administration is the rehabilitation
of offenders - and, to achieve this goal, it would doubtless be better to foster
opportunities for drug and alcohol treatment, education, and training in life skills.
It is unrealistic to expect that every treatment program will have the funding
and the trained personnel to offer all of these opportunities to its residents. And it may
be unrealistic to expect that every treatment program will be able to hire a sufficient
number of staff to personally supervise every resident who wishes to take advantage of
off-site opportunities for treatment, education, and training.
- 15 - 2357
----------------------- Page 16-----------------------
But whether to expand the scope of allowed unsupervised absences under
AS 12.55.027(c)(2) is a matter of policy - and, therefore, the decision is up to the
legislature, not the judiciary. It was Judge Smith's duty to apply the statute as the
legislature intended. And the legislative history of AS 12.55.027 makes it clear that the
rule intended by the legislature is not as broad as the rule contained in the Nygren line
of cases.
Conclusion
The judgement of the superior court is AFFIRMED.
- 16 - 2357
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
