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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES S. STONEKING,
Court of Appeals No. A-13993
Appellant, Trial Court No. 4FA-20-02209 CI
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2800 - March 28, 2025
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Patricia L. Haines, Judge.
Appearances: Lindsey Bray, Assistant Public Defender, and
Terrence Haas, Public Defender, Anchorage, for the Appellant.
Thomas C. Mooney-Myers (briefing) and Christopher W.
Yandel (oral argument), Assistant Attorneys General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau, for
the Appellee. Susan Orlansky, Reeves Amodio LLC,
Anchorage, for the American Civil Liberties Union of Alaska,
as amicus curiae.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge HARBISON, writing for the Court.
Judge ALLARD, partially concurring, partially dissenting.
In 1987, James Stoneking broke into his estranged wife's house, murdered
her, and critically injured another person. For this conduct, Stoneking was convicted of
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first-degree murder, first-degree assault, and first-degree burglary, and was sentenced
to a composite term of 99 years to serve. 1 In 2019, the Alaska Parole Board denied
Stoneking's first application for discretionary parole and required him to serve an
additional ten years before he could again apply for discretionary parole.2 Stoneking
filed an application for post-conviction relief challenging the Parole Board's decision.
After the parties filed cross-motions for summary disposition, the superior court entered
an order denying the application, and Stoneking now appeals that order.
On appeal, Stoneking's primary claim is that the Parole Board misapplied
AS 33.16.100(a)(4), the statutory provision describing one of the four findings that the
Board must make before releasing a defendant on discretionary parole. Under this
provision, the Board must determine whether there is a reasonable probability that
3
releasing the defendant "would not diminish the seriousness of the crime."
Stoneking's appeal raises a question of statutory interpretation: what facts
may the Parole Board take into account when it evaluates whether granting a
defendant's application for discretionary parole will not diminish the seriousness of
their crime, as is required by AS 33.16.100(a)(4)?
For the reasons we are about to explain, we conclude that the Parole Board
may not rely on AS 33.16.100(a)(4) to deny an application for discretionary parole
simply because the defendant was convicted of a crime the Board categorically deems
"serious," including murder, nor may it deny parole based on the personal opinions of
the board members regarding the appropriate sentence for a given offense. However,
when the specific circumstances of the defendant's offense are significantly aggravated
or egregious, AS 33.16.100(a)(4) authorizes the Board to deny a defendant's application
1 AS 11.41.100(a)(1), former AS 11.41.200(a)(1) (1987), and AS 11.46.300(a)(1),
respectively.
2 See AS 33.16.100(h).
3 AS 33.16.100(a)(4).
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for discretionary parole if releasing the defendant would engender disrespect for the law
or would be incompatible with societal norms.
In addition to challenging the Parole Board's interpretation of
AS 33.16.100(a)(4), Stoneking raises three additional claims: (1) the Parole Board's
factual findings were unsupported by the reviewable record; (2) the Parole Board's
explanation of why it denied parole and how Stoneking could better prepare for a future
application failed to comply with AS 33.16.130(c); and (3) the Parole Board acted
arbitrarily in imposing a ten-year wait time before Stoneking could reapply for
discretionary parole. 4 As we explain in this opinion, we reject Stoneking's claims of
error and affirm the superior court's order dismissing Stoneking's application for post-
conviction relief.
Background facts and proceedings
On January 3, 1987, Stoneking moved out of the home he shared with his
wife, Maria Stoneking, and their two young children. Maria continued to live in the
family home.
On February 8, Stoneking broke into Maria's home. The police arrested
him and charged him with criminal trespass. Two days later, Maria contacted the police
to report that Stoneking had again broken into the residence. On February 13, a judge
4 As allowed by Alaska Appellate Rule 212(c)(9), the American Civil Liberties Union
of Alaska (ACLU) obtained the consent of the parties to file an amicus brief in this case.
In its brief, the ACLU explained that it asked to participate as an amicus because it believes
that the Parole Board systematically denies parole based on a finding that releasing the
defendant could "diminish the seriousness of the crime." The ACLU's brief provided
statistical background information, descriptions of public statements made by members of
the Parole Board regarding applications for discretionary parole, and descriptions of
several other cases that the ACLU asserted were similar to Stoneking's case. The brief also
discussed the ACLU's interpretation of the requirements set out by AS 33.16.100(a).
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issued an order directing Stoneking not to have any contact with Maria and not to return
to the home.
The following night, Maria was at home with Kenneth Jensen (a man with
whom she had a relationship), and her two children, seven-year-old J.S. and two-year-
old W.S. Stoneking drove past the house and saw Jensen's car outside. He then drove
to his apartment, armed himself with a handgun, and returned to the house. He entered
the house through a window and discovered Maria and Jensen sitting on the couch.
After shooting both of them, Stoneking went upstairs, spoke to J.S., returned to Maria
and Jensen, shot each of them again, and left the house.
J.S. later stated that she had been asleep in her bedroom when she woke
up to the sound of gunshots. She exited her bedroom and encountered Stoneking
"dressed up in dark clothing [and a mask] holding a gun underneath his arm." Stoneking
told J.S. to return to bed, and she complied. Later that morning, J.S. came out of her
room and saw Maria and Jensen. At Jensen's direction, J.S. called 911. When the police
arrived, Maria was dead and Jensen was critically injured.
That same morning, the police located Stoneking at his apartment. When
asked where he had been the previous night, Stoneking initially stated that he had gone
to a movie, grabbed coffee and a coke, returned home, read his Bible, and then went to
bed. He also stated that he awoke in the middle of the night worried about Maria, so he
drove by Maria's house "to be satisfied things were normal."
After Stoneking told the police this version of events, the police informed
him that J.S. had "implicated him." Stoneking then changed his story. He admitted that
he had broken into the house through the back window, observed Maria and Jensen
together on the couch, and shot both of them. He recalled seeing J.S. after J.S. had left
her room. After this, he shot Maria again and, before leaving through the front door of
the residence, he shot Jensen a second time. After Stoneking provided this account to
the police, he led them to where he had disposed of the gun and other items connected
to the shootings.
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----------------------- Page 5-----------------------
Maria died from two gunshot wounds to her chest. Jensen survived the
shooting, but he sustained serious injuries, including limited functionality of his left
arm and hand.
Stoneking was charged with first-degree murder (for killing Maria),
attempted first-degree murder (for shooting Jensen), first-degree assault (also for
shooting Jensen), and first-degree burglary.5 At trial, he argued that he killed Maria
while in the heat of passion after witnessing her engaged in adultery.6 He also argued
that he had not broken into the house in order to shoot Maria and Jensen, but rather, had
broken in out of concern for the children.7 The jury found Stoneking guilty of all
8
charged offenses.
At sentencing, the superior court merged the offenses involving Jensen
into a single conviction for first-degree assault. The court imposed concurrent sentences
of 99 years for the first-degree murder, 20 years for the first-degree assault, and 10 years
for the first-degree burglary (the maximum sentences for each offense). In its remarks,
the sentencing court explained that it had not restricted Stoneking's eligibility for parole
and had not imposed consecutive sentences because Stoneking had a "good" chance of
"successful rehabilitation."
9
Stoneking subsequently appealed his convictions, but not his sentence.
After this Court affirmed Stoneking's convictions on direct appeal, Stoneking made six
unsuccessful attempts to reduce his sentence. Specifically, Stoneking filed four motions
5 AS 11.41.100(a)(1), AS 11.41.100(a)( 1) & AS 11.31.100, former
AS 11.41.200(a)(1) (1987), and AS 11.46.300(a)(1), respectively.
6 Stoneking v. State, 800 P.2d 949, 950 (Alaska App. 1990).
7 Id. at 950-51.
8 Id. at 949-50.
9 Id.
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----------------------- Page 6-----------------------
to correct or modify his sentence, one federal habeas petition, and one application for
executive clemency. He also wrote to the Parole Board and asked to be given a
discretionary parole hearing earlier than the date he became statutorily parole eligible
under AS 33.16.090. The Department of Corrections (DOC) summarily denied this
request.
In September 2019, Stoneking filed a timely application for discretionary
parole. When this application was filed, Stoneking had completed serving his sentences
for first-degree burglary and first-degree assault. Stoneking was only seeking
discretionary parole for his first-degree murder conviction.
After Stoneking's institutional probation officer received notice of
Stoneking's parole application, the officer contacted the victims of Stoneking's offense,
including J.S., Jensen, and Maria's family, to inform them of their right to provide
information for use by the Board in making its decision. The officer also prepared a
parole progress report recommending that the Board deny Stoneking's application for
discretionary parole and referencing letters opposing Stoneking's release that had been
written by four of the victims. By the time of the parole hearing, a total of seven victims,
including Jensen and J.S., had written letters that detailed the ongoing effect
Stoneking's conduct had on their lives and strongly opposing granting him parole.
The parole progress report stated that Stoneking had completed all
relevant rehabilitative and educational programs, as well as several others. In the report,
the officer acknowledged that Stoneking had done "very well in addressing his Offender
Management Plan" and that he had no other criminal convictions. However, the officer
recommended that Stoneking's application for discretionary parole be denied because
of the violence and self-destruction Stoneking engaged in around the time he murdered
Maria, and also because his conduct in the years leading up to the discretionary parole
hearing showed that he had "not completely grasped the depth of his Murder
conviction" and was "still attempting to diminish the seriousness of his crimes." The
officer also noted the impact the crime had on the victims.
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----------------------- Page 7-----------------------
The Parole Board conducted a hearing on Stoneking's application in
November 2019 and declined to parole Stoneking. The Board provided an oral
explanation of its decision at the end of the hearing. It also subsequently issued a
decision letter explaining why it had denied Stoneking's application, and notifying
Stoneking that he must serve ten additional years before he could reapply for
discretionary parole. After receiving the Board's letter, Stoneking asked the Board to
reconsider its decision, but the Board denied this request in a second written letter,
which provided more explanation for its decision.
Following the Parole Board's final administrative decision, Stoneking
filed an application for post-conviction relief. In his application, Stoneking alleged that
the Board had violated various statutory and constitutional provisions. He asked the
10
superior court to vacate the Parole Board's decision and order a new hearing.
In response, the State filed a motion for summary disposition, arguing that
the Board had correctly interpreted the parole statutes, that its decision was based on
substantial evidence, and that its decision was not an abuse of discretion. Stoneking
filed a cross-motion for summary disposition, agreeing that there were no genuine
issues of material fact and that the court could enter a judgment in favor of one party or
the other as a matter of law.
After requesting and reviewing the complete record of the Parole Board
proceedings, the superior court addressed each of Stoneking's contentions in a
thoughtful thirty-one-page written order, ultimately granting the State's motion for
summary disposition and dismissing Stoneking's application for post-conviction relief.
This appeal followed.
10 Stoneking does not renew any of his constitutional claims on appeal.
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----------------------- Page 8-----------------------
Alaska's discretionary parole laws
We begin our discussion with an overview of Alaska's discretionary
11
parole laws.
Alaska Statute 33.16.090 explains when and whether a defendant will
become eligible for release on discretionary parole. This statute also describes what
portion of the sentence a defendant must serve before being considered for release on
12
discretionary parole.
After an eligible defendant applies for discretionary parole, the Parole
Board considers the application. 13 Under AS 33.16.100(a), the Parole Board is
authorized to grant the defendant discretionary parole if it determines a reasonable
probability exists that (1) the defendant will not violate any laws or conditions of parole;
(2) the defendant's rehabilitation and reintegration into society will be furthered by
release on parole; (3) the defendant will not pose a threat of harm to the public; and
(4) releasing the defendant on parole would not diminish the seriousness of the crime.
Even if an inmate meets the eligibility criteria defined in AS 33.16.100(a) by a certain
14
date, his or her release is still discretionary.
The Parole Board's evaluation of an application for discretionary parole
is guided by 22 Alaska Administrative Code (AAC) 20.165, which sets out twenty-three
11 We cite to the current discretionary parole statutes in this opinion because both
parties cite to the current discretionary parole statutes in their briefs. The parties have not
raised the issue of which version of Alaska's discretionary parole statutes apply to the
Parole Board's decision in this case.
12 See AS 33.16.090. A separate statute, AS 12.55.115, permits courts to restrict a
defendant's eligibility for discretionary parole, requiring them to serve a term that is greater
than the time set out under AS 33.16.090, if the court does so at the time of sentencing.
13 AS 33.16.060(a)(2).
14 Stefano v. Dep't of Corr., 539 P.3d 497, 504 (Alaska 2023).
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----------------------- Page 9-----------------------
factors (including a catch-all factor) for the Parole Board to consider.15 Under this
regulation, the Parole Board has the discretion to "determine the priority and weight to
16
be given each factor when making a parole release decision."
Prior to a discretionary parole hearing, the DOC prepares a preparole
packet for use by the Parole Board. 17 The preparole packet includes, inter alia, the
original presentence report, a preparole report prepared by staff of the correctional
facilities in which the defendant has been incarcerated, information submitted by the
defendant, and information submitted by the victims.18 In cases involving a crime
against a person, the victim may provide comments to the Parole Board in writing or in
person, and the Board is required to "consider" such comments "in deciding whether to
19
release the prisoner on parole."
Under AS 33.16.130(b), a defendant applying for discretionary parole has
the following procedural rights:
[T]he prisoner is entitled to a hearing before the [B]oard. The
commissioner . . . shall furnish to the prisoner a copy of the
preparole reports . . . and the prisoner shall be permitted
access to all records that the [B]oard will consider in making
its decision except those that are made confidential by law.
The prisoner may also respond in writing to all materials the
15 This regulation was promulgated in 1991 under the authority of AS 33.16.060(b)(1),
which requires the Parole Board to establish "standards under which the suitability of a
prisoner for . . . discretionary parole shall be determined."
16 22 AAC 20.165(c).
17 See AS 33.16.180(6) (stating that the Commissioner of the DOC shall prepare the
preparole report referenced in AS 33.16.110(a)).
18 See AS 33.16.110(a)(1)-(11).
19 AS 33.16.120(c)-(d).
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----------------------- Page 10-----------------------
[B]oard considers, be present at the hearing, and present
evidence to the [B]oard.[20]
If the Parole Board denies an application for discretionary parole, it may
also "require that additional time be served before the prisoner is again eligible for
consideration for discretionary parole."21 The Board must "state the reasons for the
denial, identify all of the factors considered relevant to the denial, and provide a written
22
plan for addressing all of the factors relevant to the denial."
The Parole Board's decision in this case
As we have explained, in this case, the Parole Board wrote Stoneking a
letter explaining why it denied him parole. Then, after Stoneking sought reconsideration
of this decision, the Board issued a second letter affirming its decision and providing
additional information explaining its decision. In these letters, the Board noted that
Stoneking had "done well" in prison, had participated in rehabilitative programming,
and had given back to the community. However, the letters also listed several reasons
why, in the Board 's estimation, discretionary parole was inappropriate at that time:
* Stoneking minimized his actions and failed to take
responsibility for what he had done.
* Stoneking failed to demonstrate remorse, "as evidenced
by [his] actions leading up to [the parole] hearing, . . .
[such as] asking that some victims be removed from
receiving notifications."
* Stoneking's offense was "horrific." Stoneking murdered
his wife while their children were in the home, and he
engaged in a pattern of stalking and harassing behavior
prior to the offense.
20 AS 33.16.130(b).
21 AS 33.16.100(h).
22 AS 33.16.130(c).
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* Stoneking presented "as though [he was] entitled to
discretionary parole . . . [and his] goal [was] merely to
get out of prison," as evidenced by his requests for
clemency and early release on parole.
* Stoneking's behavior had far-reaching and long-lasting
detrimental effects on many people.
* The victims were very opposed to his release and the
Board felt that "returning [him] to the community would
have a harmful effect on them."
* The Board needed to consider "how much time is enough
time" for Stoneking's crime. If Stoneking were paroled,
he would "only have served the bare minimum for
discretionary parole eligibility." Furthermore, if
Stoneking were released "early" (i.e., if he were released
onto discretionary parole as soon as he became eligible),
this would diminish the seriousness of his offense.
* Public safety was best served by Stoneking's continued
incarceration. Stoneking's actions leading up to the
parole hearing suggested that he is a "continued threat to
the public at large."
The Parole Board's letters appear to acknowledge that Stoneking satisfied
the first two parole criteria in AS 33.16.100(a)(1) and (a)(2), but that he did not satisfy
the remaining two criteria in subsections (a)(3) and (a)(4), warranting the denial of
parole. Indeed, the Board specifically stated that it was concerned that Stoneking would
be a threat to the public if released on parole23 and that releasing him would diminish
the seriousness of the crime he committed.24 The Board notified Stoneking that he
would have to serve ten more years before he could again apply for discretionary parole.
23 The Board stated that "public safety is best served by [Stoneking's] continued
incarceration," and that Stoneking could be a "continued threat to the public at large."
24 On appeal Stoneking asserts that the Board did not rely on subsection (a)(3) when
it denied Stoneking's application. But as the superior court found in its written order, "the
Board's two letters explicitly found that Stoneking failed to meet two of the four statutory
release criteria. The Board determined that releasing Stoneking at that time would diminish
the seriousness of his crime, and that he would pose a threat of harm to the public if
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----------------------- Page 12-----------------------
Why we affirm the superior court's order dismissing Stoneking's
application for post-conviction relief
Stoneking argues that the superior court erred in dismissing his application
for post-conviction relief when it failed to recognize that the Parole Board had
misinterpreted AS 33.16.100(a).
Under AS 33.16.100(a), the Parole Board "may authorize the release of a
prisoner . . . on discretionary parole if it determines a reasonable probability exists" that
(1) the prisoner will live and remain at liberty without
violating any laws or conditions imposed by the [B]oard;
(2) the prisoner's rehabilitation and reintegration into society
will be furthered by release on parole;
(3) the prisoner will not pose a threat of harm to the public if
released on parole; and
(4) release of the prisoner on parole would not diminish the
seriousness of the crime.[25]
Stoneking argues that each of the four subsections of this statute are
rehabilitative and forward-looking, and that each is intended to probe, from a different
26
angle, whether a defendant is sufficiently reformed to be reintroduced into society.
Stoneking thus asserts that subsection (a)(4), which asks whether release of the
defendant on parole would "diminish the seriousness of the crime," requires the Parole
released." For the most part, Stoneking does not challenge the (a)(3) findings on appeal.
Instead, Stoneking's appeal is largely limited to challenging the Board's reliance on
subsection (a)(4).
25 AS 33.16.100(a).
26 In his opening brief, Stoneking asserted that these four subsections are
"interconnected" and require a "comprehensive assessment" that evaluates all four
subsections together. But during oral argument, he abandoned this argument and agreed
with the State that the Board could properly deny an application for discretionary parole if
it determined that there was a reasonable probability that any one of the four criteria would
not be met.
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----------------------- Page 13-----------------------
Board to determine whether granting the defendant's application for parole would "fly
in the face of the public sense of justice and reform," in light of the circumstances of
the defendant's offense, the sentence, and the defendant's rehabilitation efforts while in
prison. According to Stoneking, the Parole Board misinterpreted subsection (a)(4) by
failing to construe it in this manner. He also faults the Board for considering "how much
time is enough time" for his first-degree murder conviction.
Stoneking's contentions involve statutory interpretation, to which we
apply our independent judgment.27 When "interpreting a statute, we consider its
language, its purpose, and its legislative history, in an attempt to give effect to the
legislature's intent, with due regard for the meaning the statutory language conveys to
others."28 Under Alaska's sliding scale approach to statutory interpretation, "[t]he
plainer the statutory language is, the more convincing the evidence of contrary
29
legislative purpose or intent must be."
We begin by examining the statutory language of AS 33.16.100(a). Each
of the first three subsections of this statute contain language that is forward-looking.
These subsections each require the Parole Board to assess whether there is a reasonable
probability that the defendant's release on parole "will" have some future effect (e.g.,
whether the defendant will refrain from violating the law or a probation condition,
whether their rehabilitation will be furthered by the release, or whether their release will
30
pose a threat of harm to the public).
27 Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017); see also Kohlhaas v.
State, 518 P.3d 1095, 1103-04 (Alaska 2022) (explaining the standard of review for
statutory interpretation as de novo).
28 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska 2019)
(internal quotations omitted).
29 Muller v. BP Expl. (Alaska) Inc. , 923 P.2d 783, 788 (Alaska 1996).
30 See AS 33.16.100(a)(1)-(3).
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----------------------- Page 14-----------------------
However, the plain language of subsection (a)(4) (that "release of the
defendant on parole would not diminish the seriousness of the crime") does not have
31
the same forward-looking focus.
We next consider the statute's legislative history. We note that
AS 33.16.100(a) was enacted in 1985 as part of comprehensive legislation that was
intended to update the parole statutes following the legislature's enactment of
presumptive sentencing.32
The earliest version of Alaska's parole statutes required the Parole Board
to consider whether the defendant's release on parole would impact "the welfare of
society" when it considered an application for discretionary parole.33 The 1985
amendments initially adopted the same approach, but the legislation was rewritten to
require the Board to consider the constitutional principles in Article I, Section 12 of the
34
Alaska Constitution - i.e., reformation of the defendant and protection of public -
and to reflect the sentencing criteria set out in the Alaska Supreme Court's seminal case
31 See AS 33.16.100(a)(4).
32 See SLA 1985, ch. 88, § 2; Letter from Governor Bill Sheffield to Representative
Ben Grussendorf regarding H.B. 141 (Jan. 28, 1985), at 1-2 (contained in the Senate
Judiciary Committee bill file for H.B. 141).
33 Former AS 33.15.080 (1962).
34 In 1985, when the amendments to AS 33.16.100(a) were written and then considered
by the legislature, the Alaska Constitution stated that the administration of criminal justice
was based on these two principles. In 1994, Article I, Section 12 was amended to add three
additional principles: community condemnation of the offender, the rights of victims of
crimes, and restitution from the offender. Alaska Const. art. I, § 12.
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----------------------- Page 15-----------------------
State v. Chaney.35 The rewritten bill contained the four subsections, (a)(1) through
36
(a)(4), that appear in the current version of AS 33.16.100.
When this version of the bill was discussed by the House Health,
Education and Social Services (HESS) Committee, the assistant attorney general who
drafted the rewritten bill explained that each of the four subsections related to the
Chaney criteria.37 With regard to subsection (a)(4) (whether release of the defendant on
parole will diminish the seriousness of the crime), he explained that this subsection
requires the Board to consider the following questions: "How will society view this?
Will this engender disrespect for the law in some way, shape, or form if we let this
person out?"38 In other words, subsection (a)(4) was intended to reflect the Chaney
criterion codified in AS 12.55.005(6) - "the effect of the sentence to be imposed as a
35 See Audio of the joint meeting of the House Health, Education and Social Services
Committee and the House Judiciary Committee, H.B. 141, at 38:00 - 43:00 (Feb. 22,
1985); Letter from Assistant Attorney General Patrick Conheady to Representative Max
Gruenberg regarding H.B. 141 (Mar. 5, 1985), at 1 (contained in the House Health,
Education and Social Services Committee bill file for H.B. 141); see also State v. Chaney,
477 P.2d 441, 444 (Alaska 1970). The Chaney criteria are (1) deterrence of the offender
and others; (2) rehabilitation; (3) community condemnation and reaffirmation of societal
norms for the purpose of maintaining respect for the norms themselves; and (4) isolation
of the offender from society to prevent criminal conduct during the period of confinement.
Chaney, 477 P.2d at 444.
36 Letter from Assistant Attorney General Patrick Conheady to Representative Max
Gruenberg regarding H.B. 141 (Mar. 5, 1985), at 11 (contained in the House Health,
Education and Social Services Committee bill file for H.B. 141); AS 33.16.100(a)(1)-(4).
37 Audio of House Health, Education and Social Services Committee, H.B. 141,
testimony of Assistant Attorney General Patrick Conheady, at 18:05 - 19:00 (Mar. 6, 1985).
38 Id. at 21:28 - 21:35 (testimony of Assistant Attorney General Patrick Conheady).
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----------------------- Page 16-----------------------
community condemnation of the criminal act and as a reaffirmation of societal
39
norms[.]"
This version of the bill was passed by the House HESS Committee and
moved to the House Judiciary Committee. In the House Judiciary Committee's review
of the bill, the committee considered a "Sectional Analysis and Commentary" which
had been prepared by the Department of Law.40 The sectional analysis explained that
the general standards set out by AS 33.16.100(a) "reflect the Chaney criteria and the
purposes of sentencing in AS 12.55.005, particularly those concerned with
41
rehabilitation, protection of the public, and the seriousness of the crime."
The House Judiciary Committee voted to move the bill out of committee
without any amendment to subsections (a)(1) through (a)(4), and the bill was signed
into law later that session.42 Since its enactment in 1985, these subsections have not
been amended by the legislature.
Given this history, as well as the clarity of the statute's plain language, we
reject Stoneking's claims that all four subsections of AS 33.16.100(a) are only focused
on rehabilitation and on predicting the defendant's future conduct. Subsection (a)(4), in
particular, is not focused exclusively on rehabilitation.43 Instead, as we have explained,
39 AS 12.55.005(6); Chaney, 477 P.2d at 444; see Smith v. State, 711 P.2d 561, 569
n.4 (Alaska App. 1985) (explaining that the Chaney sentencing criteria have been codified,
in substance, in AS 12.55.005).
40 Sectional Analysis and Commentary for C.S.H.B. 141, prepared for the House
Judiciary Committee (Apr. 1, 1985), at 1.
41 Id. at 3.
42 See Letter from Assistant Attorney General Patrick Conheady to Representative
Max Gruenberg regarding H.B. 141 (Mar. 5, 1985), at 1 (contained in the House Health,
Education and Social Services Committee bill file for H.B. 141); SLA 1985, ch. 88, § 2.
43 This is not to say that a defendant's rehabilitative efforts are irrelevant to subsection
(a)(4). To the contrary, the Parole Board may certainly consider the defendant's efforts at
rehabilitation when determining whether the defendant's release would diminish the
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----------------------- Page 17-----------------------
this subsection requires the Parole Board to determine whether a reasonable probability
exists that "release of the prisoner on parole would not diminish the seriousness of the
crime."44 Based on the statute's legislative history, this subsection authorizes the Board
to deny a defendant's application for discretionary parole if releasing the defendant
45
would engender disrespect for the law or would be incompatible with societal norms.
Thus, when the Parole Board evaluates this subsection, it may properly consider the
circumstances of the defendant's original offense.
But this does not mean that the Parole Board is permitted to find that
whenever a defendant was convicted of a serious crime, releasing the defendant on
parole will "diminish the seriousness of the offense."
In 1985, when the legislature promulgated AS 33.16.100(a), it also
promulgated AS 33.16.090, which established the eligibility criteria for discretionary
parole.46 Under this statute, defendants who were convicted of first-degree murder were
eligible for discretionary parole after serving a portion of their sentence.47 When the
legislature crafted this statute, it could have made such defendants ineligible for
seriousness of the offense. That is, whether it would diminish the seriousness of the crime
to release a defendant may look entirely different for the defendant who has turned their
life around in prison and made substantial strides towards rehabilitation, as opposed to the
defendant who has not achieved rehabilitation.
44 AS 33.16.100(a)(4).
45 See Audio of House Health, Education and Social Services Committee, H.B. 141,
testimony of Assistant Attorney General Patrick Conheady, at 21:21 - 21:35 (Mar. 6, 1985);
State v. Chaney, 477 P.2d 441, 444 (Alaska 1970).
46 SLA 1985, ch. 88, § 2.
47 Id. The statute has been amended several times since 1985, but a defendant
convicted of first-degree murder remained eligible for discretionary parole under most
circumstances. However, currently, if a defendant is sentenced to one or more mandatory
99-year terms under AS 12.55.125(a) or one or more definite terms under AS 12.55.125(l),
they are not eligible for consideration for discretionary parole. AS 33.16.090(a)(1)(A).
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discretionary parole or it could have required them to serve a longer portion of their
sentence before becoming parole-eligible. But the legislature did not do this. Instead, it
chose to include defendants who were convicted of these serious crimes in the category
of defendants who were eligible for parole after serving a portion of their sentence.
This drafting decision indicates that the legislature believed that there
would be some defendants who, despite being convicted of serious felony offenses
(including murder), could be released on discretionary parole when they first became
eligible without "diminish[ing] the seriousness of the crime." However, discretionary
parole release could occur only after the defendant had served a portion of their sentence
and the Board had completed an individualized assessment of the defendant's
circumstances. Thus, if the Parole Board were to categorically deny applications for
discretionary parole made by eligible defendants convicted of serious felony offenses,
the Parole Board would, essentially, be substituting its own view - that a longer
minimum punishment for a category of crimes is warranted - for the punishment
codified by the legislature. This would be unlawful.
The Appellate Division of the New York Supreme Court, First
Department, reached the same conclusion when it reviewed New York's discretionary
parole laws in King v. New York State Division of Parole .48 Under New York law, a
defendant may be released on discretionary parole only if there is a reasonable
probability that, if the defendant were released,
he or she will live and remain at liberty without violating the
law, and that his or her release is not incompatible with the
welfare of society and will not so deprecate the seriousness
[49]
of his or her crime as to undermine respect for law.
48 King v. N.Y. State Div. of Parole, 598 N.Y.S.2d 245, 251-52 (N.Y. App. Div. 1993),
aff'd, King v. N.Y. State Div. of Parole, 632 N.E.2d 1277 (N.Y. 1994).
49 N.Y. Exec. Law § 259-i(2)(c)(A) (emphasis added). The requirements of this statute
are very similar to those of AS 33.16.100(a)(1), (3), and (4).
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In King , the defendant was convicted of felony murder for the killing of
an off-duty police officer while robbing a restaurant.50 At the time of his offense, King
was twenty-one years old and had no prior contacts with law enforcement.51 When he
52
became eligible, King applied for discretionary parole, but his application was denied.
In issuing its decision, the Parole Board noted King's "excellent
institutional adjustment, including [a] BA . . . in sociology," but it cited the following
grounds for declining to grant him parole: "[the] nature, circumstances and seriousness
53
of the present offense: murder one, manslaughter two, and assault one."
On appeal, New York's intermediate appellate court held that the Parole
Board's decision "was based on a fundamental misunderstanding of its role and its
power, and was not in accord with statutory requirements."54 The court noted that a
member of the Parole Board had made remarks at the parole hearing which
"demonstrate[d] that the Board was proceeding on the assumption that its primary duty
was to determine, in the abstract, the appropriate penalty for murder in today's
society."55 These remarks, the court explained, suggested that the Board had infringed
on the legislature's authority. The court held that "determining the appropriate penalty
to be imposed for the commission of a particular crime is fundamentally a function
50 King, 598 N.Y.S.2d at 246.
51 Id. at 247.
52 The Parole Board denied his application twice. Id.
53 Id. at 249.
54 Id. at 250.
55 Id. at 251.
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----------------------- Page 20-----------------------
which belongs in the hands of elected officials" and that the Parole Board could not
56
"resentence [the] petitioner according to the personal opinions of its members."
The New York intermediate appellate court distinguished between
denying parole because of the category of offense, which is prohibited, and denying
parole based on the particularly aggravated factors of a specific offense, which is
permissible:
[I]n order to preclude the granting of parole exclusively on
[the seriousness of the crime] there must have been some
significantly aggravating or egregious circumstances
surrounding the commission of the particular crime.
Certainly every murder conviction is inherently a matter of
the utmost seriousness since it reflects the unjustifiable
taking and tragic loss of a human life. Since, however, the
legislature has determined that a murder conviction per se
should not preclude parole, there must be a showing of some
aggravating circumstances beyond the inherent seriousness
[57]
of the crime itself.
Like the New York courts, we conclude that the Parole Board cannot deny
parole under AS 33.16.100(a)(4) simply because the defendant was convicted of a
serious crime, including murder. However, when the circumstances of a specific offense
are significantly aggravated or particularly egregious such that releasing the defendant
would engender disrespect for the law or be incompatible with societal norms, the
Board may consider those circumstances when evaluating whether release on
58
discretionary parole would "diminish the seriousness of the offense."
56 Id.
57 Id. (citation omitted).
58 See AS 33.16. 100(a)(4); Audio of House Health, Education and Social Services
Committee, H.B. 141, testimony of Assistant Attorney General Patrick Conheady, at 21:21
- 21:35 (Mar. 6, 1985); see also Phillips v. Dennison, 834 N.Y.S.2d 121, 124-25 (N.Y.
App. Div. 2007) (explaining that if the facts of the offense are serious enough, parole may
be denied if the defendant's release could "deprecate the seriousness" of the crime).
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----------------------- Page 21-----------------------
Stoneking notes that at his parole hearing, one of the members of the
Parole Board stated that "the hardest thing that we have to decide is how much time is
enough time when a life has been taken." And in the Board's letter denying parole, the
Board repeated this claim, stating that it was required to "consider how much time is
enough time [when a life is taken.]" Stoneking asserts that these statements indicate that
the Board seemed to think that AS 33.16.100(a)(4) required it to determine the
appropriate penalty for murder.
We agree that the statements identified by Stoneking were improper.
Because a "life is taken" each time a defendant commits a homicide (i.e., murder,
manslaughter, or criminally negligent homicide), when the Parole Board evaluates
whether granting parole to a homicide defendant will "diminish the seriousness of the
offense," it is improper for the Board to rely on the fact that the defendant caused the
victim's death. Furthermore, the challenged remarks suggest that the Parole Board
mistakenly believed that it should deny parole whenever a defendant convicted for
murder first appeared before the Parole Board.
Despite the impropriety of the challenged remarks, we conclude that the
record as a whole indicates that the Board ultimately did not deny parole because
Stoneking committed murder, a serious category of offense. Rather, as the superior
court noted in its order denying post-conviction relief, the Parole Board "specifically
referenced facts and circumstances surrounding the crime" and Stoneking's behavior
afterwards when it declined to parole him. One board member pointed out that when
Stoneking went to Maria's house, he had a gun and a mask and was violating a
protective order. Then, in its decision letter, the Board characterized Stoneking's
offense as "horrific," pointing out that he murdered Maria while their children were in
the home. The Board noted that Stoneking had engaged in a "pattern of stalking and
harassing behavior . . . prior to the offense." With respect to Stoneking's behavior since
he committed the crime, the Board found that Stoneking had minimized his conduct
and failed to take responsibility for his actions.
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----------------------- Page 22-----------------------
Given these individualized findings, we conclude that the record
establishes that the Parole Board considered the specific aggravated details of
Stoneking's offense and his lack of remorse, rather than simply basing its decision on
59
the category of the offense for which Stoneking was convicted.
Why we conclude that the Parole Board's factual findings were supported
by the record
Stoneking argues that the Parole Board's factual findings were not
supported by the record. Stoneking asserts: (1) the Board considered information
outside the reviewable record; (2) the Board erred in finding that Stoneking did not
adequately accept responsibility or show remorse; and (3) the Board's findings did not
sufficiently reference Stoneking's rehabilitative efforts or release plan. We now address
each of these arguments.
1. Whether the Parole Board considered information from outside
the record
Stoneking first argues that the Board erred by considering three facts that
Stoneking claims were not properly part of the record: that he requested an early parole
hearing, that he asked the DOC to remove Kenneth Jensen's name from the victim-
notice list, and that he applied for executive clemency. According to Stoneking, no
statute or regulation expressly authorizes the Parole Board to consider this information,
and it was improper for it to do so.
59 Furthermore, as we noted earlier, the superior court found that the Parole Board had
articulated a second valid basis for denying Stoneking discretionary parole - that
Stoneking's release would pose a threat of harm to the public. See AS 33.16.100(a)(3).
Because Stoneking does not challenge this finding on appeal, it provides an independent
basis for affirming the Parole Board's decision.
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Alaska Statute 33.16.110(a) lists information that the Board "shall
60
consider" when "determining whether a prisoner is suitable for discretionary parole."
This provision contains eleven categories of information, including
"(4) recommendations made by the staff of the correctional facilities in which the
prisoner was incarcerated" and "(11) other relevant information that may be reasonably
61
available."
In keeping with AS 33.16.110(a)(4), Stoneking's institutional probation
officer, Michael Zener, wrote a parole progress report for the Parole Board's
consideration. In this report, Zener stated that Stoneking had requested an early parole
hearing and that Stoneking had asked the DOC to remove Jensen's name from the
victim notification list. We conclude that this information falls within
AS 33.16.110(a)(4), as it was contained in Zener's formal recommendation to the
Parole Board regarding Stoneking's parole application.
Regarding Stoneking's application for clemency, a Parole Board member
commented at the parole hearing that Stoneking had applied for executive clemency,
and, in response, Stoneking acknowledged this. Furthermore, under
AS 33.16.060(a)(8), clemency applications are directed to the Parole Board for
investigation. We thus conclude that this information was "reasonably available" to the
Parole Board, as is required by AS 33.16.110(a)(11).
Stoneking loosely suggests that AS 33.16.110(a)(11) is inapposite because
his application for clemency was not relevant to any issue before the Parole Board and
that, by considering his clemency application, the Board was punishing him for
exercising his right to take certain legal action. We agree with Stoneking that the Parole
Board may not penalize an inmate for the use of legitimate procedural mechanisms to
60 AS 33.16.110(a).
61 Id. at (a)(4), (11).
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----------------------- Page 24-----------------------
challenge a sentence. At the same time, we agree with the superior court that an inmate's
"sustained campaign to reduce a sentence by any available means [is relevant to the
Board's assessment of] the inmate's credibility and whether the inmate's expressed
remorse for a crime and apparent efforts at rehabilitation are sincere." We accordingly
reject Stoneking's assertion that the Board improperly considered his clemency
application.
For these reasons, we conclude that the challenged information was
properly part of the Parole Board's record.
2. Whether the Parole Board erred in finding that Stoneking did
not adequately accept responsibility for his actions
Stoneking next argues that the Parole Board lacked a substantial basis to
find that he failed to adequately accept responsibility for his actions or show remorse.
The parties agree on the standard of review that we should apply to the
Parole Board's factual findings: the "substantial evidence test." Under this standard, the
reviewing court ascertains whether "a reasonable mind might accept [the evidence] as
62
adequate to support a conclusion."
As the superior court explained in its written order, the record supports the
Parole Board's finding that Stoneking minimized his actions and thus failed to accept
responsibility for them.
In Stoneking's discretionary parole application, he wrote that he killed
Maria in a heat of passion, that he lost control, and that he was not capable of rational
62 Handley v. State, Dep't of Rev., 838 P.2d 1231, 1233 (Alaska 1992) (quoting Keiner
v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)) (explaining that under the
"substantial evidence" test used for reviewing factual determinations in administrative
decisions, the court need only determine whether such evidence exists; it does not choose
between competing inferences and does not evaluate the strength of evidence); see also
Covington v. State, 938 P.2d 1085, 1090-91 (Alaska App. 1997) (citing Handley , 838 P.2d
at 1233 for the proposition that we review the Parole Board's factual findings under the
"substantial evidence" test).
- 24 - 2800
----------------------- Page 25-----------------------
thoughts. Then, at Stoneking's parole hearing, he told the Parole Board that he went to
Maria's house only to get his children, and he implied that he shot Jensen in imperfect
self-defense. But the presentence report contradicted both of these accounts. The
presentence report stated that Stoneking went to Maria's house with a ski mask and a
gun. While there, he killed Maria and critically injured Jensen. He then hid the evidence
and lied to the police about his whereabouts. The contrast between the facts of the
underlying offense and Stoneking's statements during the parole proceedings about
what occurred supports the Board's finding that Stoneking has continued to minimize
his actions.
3. Whether the Board's findings sufficiently referenced
Stoneking's rehabilitative efforts or release plan
Stoneking next argues that the Parole Board's findings did not sufficiently
reference his rehabilitative efforts or release plan. But AS 33.16.130(c) does not require
the Parole Board to provide the defendant with an explanation regarding the release
factors that they have met; this statute only requires the Board to "state the reasons for
the denial [and] identify all of the factors considered relevant to the denial."63 Because
the Parole Board's multiple denial letters in this case provided the required explanation,
we reject Stoneking's claim that AS 33.16.130(c) required the Parole Board's decision
letters to provide additional information and analysis about Stoneking's rehabilitative
efforts or his release plan.
Whether the Board properly exercised its discretion when it declined to
release Stoneking on discretionary parole
Stoneking next argues that the Parole Board abused its discretion when it
declined to release him on discretionary parole. The parties agree that we should apply
63 AS 33.16.130(c).
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----------------------- Page 26-----------------------
the "reasonable basis" standard to our review of the Parole Board's exercise of its
discretionary authority.64 Under this standard, the reviewing court ascertains whether
64 Covington, 938 P.2d at 1090-91 ("The [P]arole [B]oard's exercise of its
discretionary authority is reviewed under the 'reasonable basis' standard, to insure that its
determinations are supported by evidence in the record as a whole and there is no abuse of
discretion."); Duyck v. State, 2008 WL 269462, at *1 (Alaska App. Jan. 30, 2008)
(unpublished); see also Walker v. State, 2020 WL 7774938, at *2 n.5 (Alaska App. Dec. 30,
2020) (unpublished) (explaining that the actions of a Parole Board are afforded only limited
review in court rather than a de novo assessment).
We question whether the standard of review from Covington is appropriate to apply
under the circumstances of Stoneking's case. In Covington, this Court reviewed on appeal
the Parole Board's decision to revoke the defendant's parole for failure to comply with his
conditions of release. Covington, 938 P.2d at 1088. In Stoneking's case, however, this
Court is reviewing on appeal the Parole Board's decision to grant the defendant
discretionary parole in the first instance. Previously, this Court has cited to Covington and
applied the same standard of review to the parole revocation and parole granting function.
E.g., Duyck , 2008 WL 269462, at *1. Our review in Stoneking's case of the legislative
history of C.S.H.B. 141, the precursor to Alaska parole statute (AS 33.16), has left us
uncertain whether the "reasonable basis" standard from Covington applies in equal force
to the parole revocation and parole granting functions of the Parole Board.
As we explained supra, in the text accompanying note 40, the Alaska Department
of Law prepared a Sectional Analysis and Commentary that was used by the House
Judiciary Committee in its consideration of C.S.H.B. 141. Sectional Analysis and
Commentary for C.S.H.B. 141, prepared for the House Judiciary Committee (Apr. 1,
1985). In a section titled "Due Process Considerations," the Sectional Analysis separately
discussed due process considerations that apply to the Board's parole granting function and
parole revocation function. Id. at 8-17. When discussing the parole granting function, the
Analysis cited to Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (1979),
noting that the language of AS 33.16.100(a) "is intentionally discretionary" and that the
language itself "does not create a liberty interest in the Alaska statutory scheme of
discretionary parole." Id. at 9-10. But when discussing the parole revocation function, the
Analysis cited to Morrissey v. Brewer, 408 U.S. 471 (1972), noting that defendants who
have been released on parole have a conditional liberty interest in not returning to prison.
Id. at 8, 13-16.
In Stoneking's case, the parties agree that the "reasonable basis" standard applies to
this Court's review of the parole granting function, and the question that we now raise has
not been briefed by the parties. We therefore apply the "reasonable basis" standard from
Covington in our review of the Parole Board's decision to deny Stoneking discretionary
parole.
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----------------------- Page 27-----------------------
the Board 's "determinations are supported by the evidence in the record as a whole and
65
there is no abuse of discretion."
Stoneking's challenge to the Board's exercise of its discretion is
inextricably linked to his claim challenging the Board's underlying factual findings that
he had minimized his actions and failed to take responsibility for them. Indeed, as the
superior court pointed out, an inability to fully accept responsibility for one's criminal
actions and for the harm inflicted on the victims may indicate a continued risk to the
public. Such findings may also be relevant to determining whether releasing the
defendant would diminish the seriousness of the offense. Because we have determined
that the Board's underlying factual findings regarding Stoneking's minimization and
lack of remorse are supported by substantial evidence, we also conclude that the Board
had a reasonable basis for declining to release Stoneking to discretionary parole.
Why we conclude that the Parole Board provided adequate guidance for
addressing the factors relevant to its denial of parole
When the Parole Board denied Stoneking parole, it issued a two-page
letter explaining its decision and informing him that he will be allowed to reapply for
discretionary parole in ten years. The Board later issued a second letter, in which it
denied reconsideration of its parole decision. Stoneking contends that the Parole
Board's letters did not sufficiently explain why it did not release him on parole, and did
not provide concrete guidance for how he could prepare a successful future parole
application. The superior court rejected these claims, finding that the Parole Board's
two written decisions, taken together, complied with AS 33.16.130(c). We agree with
the superior court's ruling.
65 Covington, 938 P.2d at 1091.
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Alaska Statute 33.16.130(c) was passed as part of the 1985 Parole
Administration Act.66 Under this statute, if the Parole Board denies discretionary parole,
it must "state the reasons for the denial, identify all of the factors considered relevant
to the denial, and provide a written plan for addressing all of the factors relevant to the
67
denial."
In Frank v. State, this Court interpreted AS 33.16.130(c) to require that
the Parole Board provide reasons for denying parole that are sufficient for the defendant
to understand why their application failed, to guide their future behavior, and to allow
for judicial review.68 In that case, the Parole Board had denied Frank's application for
discretionary parole and told him that he could reapply in ten years.69 The Board
provided him with a one-page form that contained "a checklist of nine generic reasons
for denying parole."70 Five boxes had been checked off, and the form indicated that
there were "factors" that had not been met, but it did not explain what these factors
71
were.
66 SLA 1985, ch. 88, § 2.
67 AS 33.16.130(c).
68 Frank v. State, 97 P.3d 86, 90-91 (Alaska App. 2004).
69 Id. at 88.
70 Id. at 87.
71 Id. at 89-90. The five checked boxes were (1) "Aggravating factors are present
which prompt the Board to go above the guidelines in denying your parole"; (2) "The Board
noted the very serious nature of your crime and/or the history of violence and pattern of
criminal behavior which your file presents, and have assessed that you are a high risk for
criminal behavior or high risk to violate conditions in the future"; (3) "The Board felt that
additional time incarcerated before your release date would allow you more time to
formulate a realistic and firmly based release plan"; (4) "The Board felt that additional time
incarcerated would allow you the possibility of taking advantage of treatment and/or
training/education programs that are available within the institution"; (5) "The Board has
noted factors regarding your institutional behavior. This may have included: major
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----------------------- Page 29-----------------------
Frank appealed, arguing that the Parole Board failed to comply with
AS 33.16.130(c) because its explanation for denying him parole was insufficient.72 This
Court agreed, and we remanded so that the Board could issue a revised written
decision.73 Regarding what AS 33.16. 130(c) requires of the Parole Board, we explained
that
We construe this statutory mandate to mean that the Board
must describe its reasons in sufficient detail that inmates can
understand in what respects they have fallen short - so that
inmates can guide their future behavior, and so that they can
prepare more satisfactory future applications for parole. In
addition, the Board must describe the reasons for its decision
in sufficient detail to allow meaningful judicial review - so
that reviewing courts can determine whether parole has been
[74]
denied for an impermissible reason.
Applying this standard, we concluded that the Parole Board's decision
was not specific enough to allow for meaningful judicial review or to "allow Frank to
guide his future behavior or draft future parole applications that might satisfy the
Board's concerns."75 We noted that the Board indicated that various "factors" in Frank's
case were not met, but those factors were not individualized to Frank's case.76 We also
noted that the Board seemed to rely on other reasons for denying parole that it did not
77
mention to Frank.
infractions, disciplinary actions, poor/no institutional work history, poor/no program
participation, or criminal behavior during incarceration." Id.
72 Id.
73 Id. at 93.
74 Id. at 90.
75 Id. at 91.
76 Id. at 89-90.
77 Id.
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----------------------- Page 30-----------------------
Stoneking argues that the Parole Board's explanation for why it denied
parole did not satisfy AS 33.16.130(c) and Frank . We disagree.
We first note that, unlike the Parole Board in Frank, the Parole Board in
Stoneking's case provided case-specific reasons explaining why it denied discretionary
parole. The Parole Board noted that Stoneking engaged in a "pattern of stalking and
harassing behavior" before he murdered Maria which aggravated the circumstances of
his crime, that Stoneking continued to demonstrate a lack of remorse at the time of the
parole hearing, and that Stoneking desired to get out of prison above anything else. The
Board also noted the impact that Stoneking's crime had on his victims and the
community and stated that Stoneking's actions since the crime (minimizations and
manipulations) indicated that he was not sufficiently reformed and thus remained a
"continued threat to the public at large."
The Parole Board also provided Stoneking with case-specific examples of
how he had fallen short. The Parole Board stated that Stoneking showed a lack of
remorse as evidenced by his attempt to have Jensen removed from the notification list.
The Parole Board also pointed to Stoneking's minimizing of his criminal actions and
failure to take accountability at the parole hearing. Finally, the Parole Board noted that
Stoneking lacked insight into why his parole officer recommended parole be denied.
These comments met Frank 's requirement that the Board must "describe its reasons in
78
sufficient detail that inmates can understand in what respects they have fallen short."
Accordingly, we conclude that the Parole Board provided adequate
guidance for Stoneking to submit more satisfactory applications in the future.
78 Id. at 90.
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----------------------- Page 31-----------------------
Why we conclude that the ten-year wait time before Stoneking could
reapply for parole was not an abuse of its discretion
Stoneking argues that the Parole Board arbitrarily foreclosed him from
reapplying for discretionary parole for ten years. The State, citing to AS 33.16.100(h),
argues that the Board did not err because the legislature delegated to the Board broad
authority to restrict a prisoner's future eligibility for discretionary parole. Alaska
Statute 33.16.100(h) provides,
If the [B]oard considers an application for discretionary
parole and denies parole because the prisoner does not meet
the standards in (a) or (g) of this section, the [B]oard may
make the prisoner ineligible for further consideration of
discretionary parole or require that additional time be served
before the prisoner is again eligible for consideration for
discretionary parole.
The legislative history of AS 33.16.100 reflects the legislature's intention
to give the Parole Board nearly unbridled discretion when determining that a defendant
must serve additional time before they may again apply for discretionary parole.79 In
Stoneking's case, the Parole Board evaluated the four factors that must be satisfied in
order to grant discretionary parole and determined that, at the time it conducted the
hearing, there was a reasonable probability that releasing Stoneking would diminish the
seriousness of his crime. It apparently determined, however, that this calculus could
change if Stoneking were to serve an additional ten years - i.e., that if he served the
additional ten years, there would be a substantial likelihood that releasing him on parole
would not diminish the seriousness of his offense. We conclude that, given the facts of
this case, the Parole Board did not abuse its discretion when it made this determination.
79 Sectional Analysis and Commentary for C.S.H.B. 141, prepared for the House
Judiciary Committee (Apr. 1, 1985), at 10-12.
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----------------------- Page 32-----------------------
Conclusion
The judgment of the superior court is AFFIRMED.
- 32 - 2800
----------------------- Page 33-----------------------
Judge ALLARD, partially concurring, partially dissenting.
I agree with the majority that the Parole Board oversteps its authority
when it treats all defendants convicted of murder as inherently ineligible for
discretionary parole based on the seriousness of their crimes.1 As the New York court
held in King , "The role of the Parole Board is not to resentence [the] petitioner
according to the personal opinions of its members as to the appropriate penalty for
murder, but to determine whether, as of this moment, given all of the relevant statutory
factors, [the petitioner] should be released."2 I also agree with the majority that, in this
particular case, the Board's findings are supported by the record and its decision to deny
discretionary parole was not an abuse of discretion. Where I disagree with the majority
is with regard to the adequacy of the Board's guidance to Stoneking regarding what he
should do to prepare a better application for discretionary parole. In my view, the
Board's comments were insufficient to allow Stoneking "to guide his future behavior
or draft future parole applications that might satisfy the Board's concerns."3 I likewise
conclude that the Board failed to adequately explain why Stoneking must wait an
additional ten years before he can reapply for discretionary parole and that the Board
failed to justify why this length of time was required. Accordingly, I would affirm the
Board's denial of discretionary parole but I would remand this case to the Parole Board
for clarification and, if appropriate, reconsideration of the ten-year moratorium and a
clearer explanation for what Stoneking should do to prepare for his next discretionary
parole application.
1 See King v. N.Y. State Div. of Parole, 598 N.Y.S.2d 245, 251 (N.Y. App. Div. 1993),
aff'd, King v. N.Y. State Div. of Parole, 632 N.E.2d 1277 (N.Y. 1994).
2 Id.
3 Frank v. State, 97 P.3d 86, 91 (Alaska App. 2004).
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