| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bailey v. State, Dept. of Corrections, Board of Parole (1/22/2010) sp-6453
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| WILLIAM BAILEY, | ) |
| ) Supreme Court No. S- 13079 | |
| Appellant, | ) |
| ) Superior Court No. 3KN-06- 698 CI | |
| v. | ) |
| ) O P I N I O N | |
| ) | |
| STATE OF ALASKA, DEPARTMENT | ) No. 6453 - January 22, 2010 |
| OF CORRECTIONS, BOARD OF | ) |
| PAROLE, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Patrick J. McKay, Judge.
Appearances: Charles Winegarden, Kenai, for
Appellant. Marilyn J. Kamm, Assistant
Attorney General, and Richard A. Svobodny,
Acting Attorney General, Juneau, for
Appellee.
Before: Fabe, Winfree, and Christen,
Justices. [Carpeneti, Chief Justice, and
Eastaugh, Justice, not participating]
WINFREE, Justice.
I. INTRODUCTION
In this appeal we review the revocation of William
Baileys parole. After his conviction Bailey was ordered to
actively participate and successfully complete substance abuse
treatment if offered during his incarceration. At Baileys
initial parole hearing, the parole board directed Bailey to apply
to a residential substance abuse treatment program. Bailey
applied to a treatment program, but was rejected after raising
legitimate concerns about the programs restrictions on his right
to access the courts. Bailey successfully grieved those
restrictions, but did not then reapply to the treatment program.
The parole board revoked Baileys mandatory parole on the ground
that Bailey breached the court order to complete substance abuse
treatment if such treatment was offered. The superior court
affirmed the parole boards decision.
We conclude Bailey lacked adequate notice that his
failure to reapply to and successfully enroll in a treatment
program after he prevailed with his grievance would lead to
revocation of his parole. We therefore reverse the superior
courts affirmance of the parole boards decision and remand for
proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
Bailey was convicted in 2001 of three counts of second-
degree theft. In June 2002 Bailey was sentenced to ten years in
prison, with four years suspended and six years to serve. The
judgment ordered Bailey to actively participate and successfully
complete substance abuse treatment if offered during his
incarceration.
In October 2002 Bailey was transferred to Wildwood
Correctional Center (Wildwood). There Bailey signed a Prisoner
Notice of Court-Ordered Treatment indicating he understood that
if he refused to participate in a substance abuse treatment
program offered to him, his mandatory parole could be revoked.
Less than a month later Bailey was transferred to Spring Creek
Correctional Center (Spring Creek). There Bailey submitted a
Request for Interview asking for a status check with regards to
[his] court ordered treatment. The Department of Corrections
(DOC) responded that Bailey had not previously applied to
Wildwoods residential treatment program and that the parole
officer at Wildwood was not interested in reviewing [Bailey] at
this time.
In February 2003 Bailey was transferred to a detention
center in Arizona. Bailey later testified before the parole
board that he applied for substance abuse treatment in Arizona
but was placed on a waiting list. In apparent anticipation of
his May 2004 transfer back to Spring Creek, Bailey completed an
application for a treatment program at the Salvation Army
Clitheroe Center (Clitheroe) in March 2004. Baileys
participation in Clitheroes inpatient program would have required
a furlough, but Baileys furlough application was denied. Bailey
was advised to complete a community work service program at
Hiland Mountain Correctional Center (HMCC), after which Bailey
would be allowed to reapply for a furlough. Bailey was
transferred to HMCC in July 2004, but was transferred back to
Spring Creek in November 2004.
In January 2005 Bailey again applied for a furlough,
but he was advised to complete the Wildwood residential treatment
program before his application for a furlough would be
considered.
In April 2005 parole officer C. S. Pianko issued a
Parole Violation Report, charging that Bailey had violated the
terms of his judgment of conviction by fail[ing] to actively
participate and successfully complete substance abuse treatment
offered to him while incarcerated. Pianko wrote that Prisoner
Bailey has been given numerous opportunities to engage in
substance abuse treatment while incarcerated, including
opportunities to apply to the Wildwood program in December 2004
and in January 2005. Pianko recommended that Baileys statutory
good time be revoked.
The parole board held Baileys initial hearing on June
22, 2005. When the parole board asked Pianko for evidence
supporting the violation charge, Pianko answered:
Actually in good faith, I cannot present any
substantial supporting evidence . . . . He
has never verbally said that he would not
(indiscernible) in substance abuse treatment
and . . . he has never physically or verbally
refused to deny [sic] or actually verbalized
or documented the fact that he does not want
to [indiscernible] type of substance abuse
treatment.
Pianko asked to withdraw the request to revoke Baileys parole,
but the parole board proceeded with the hearing.
At the hearing Bailey raised concerns about Wildwood.
He explained that he is disabled1 and had doubts about Wildwoods
compliance with the Americans with Disabilities Act (ADA).2
Bailey claimed that due to his disability (degenerative
arthritis), he would be unable to go downstairs to do his own
laundry or to access the law library and church facilities
located on an upstairs floor.
The parole board continued the revocation hearing for
six months. Bailey was ordered to apply to the Wildwood
residential treatment program in the interim. The parole board
chairman elaborated to Bailey: [W]e want to see what the reply
is, if youre in the program at that time, thats fine. If youre
not, then well review why you did not get into the . . . program
and well take that issue up in December. The parole board
addressed Baileys concerns about Wildwood by saying that Bailey
could also if he wishe[d] apply to a residential treatment
program in Arizona, although neither the likelihood of arranging
a transfer back to Arizona nor Baileys prior experience with
waiting lists for treatment in Arizona was discussed. The parole
board hearing ended immediately thereafter. A written Notice of
Board Action reiterated that Bailey was ordered to apply for
substance abuse treatment while incarcerated and that Baileys
case would be continued until December 2005.
Bailey was given an application for the Wildwood
program within a week of the parole board hearing. A July 5
letter from the parole board administrator informed Bailey that
the Wildwood program is able to accommodate inmates with
disabilities since everything related to the . . . program is on
the first floor and [t]here is no requirement for the use of
stairs. No mention was made of access to laundry, the law
library, or church facilities. The letter noted that it is the
Boards expectation that [Bailey] will be actively participating
in an institutional substance abuse program. The letter
concluded with notice of Baileys right to ask for
reconsideration.
In a July 11 letter Bailey requested reconsideration of
the parole boards June 22 order, repeating his concerns about
Wildwoods ADA compliance and explaining that being able to do
laundry, access the law library, and attend church services were
essential components of his rehabilitation. Bailey asked to be
paroled to Clitheroe or for substance abuse treatment to be made
a condition of his mandatory release.
The parole board denied reconsideration. The parole
board administrator wrote to Bailey that the program, housing and
dining units are all on the ground floor of Wildwood, and [t]here
is nothing prohibiting you from participating in that program and
the Parole Board wants you to apply to and participate in the
program if accepted.
Bailey applied to enter the Wildwood program, and on
September 13 he had a telephone interview as part of the
application process. Bailey was informed that the program
required a thirty-day blackout period for new participants.
Bailey later alleged he was told that inmates could not receive
any mail during the blackout period and that access to the law
library would be based on merit, and claimed that he had objected
to those restrictions during the interview.
The day after Baileys interview, Wildwood declined to
accept Bailey into its program. Wildwoods e-mail to Baileys
parole officer stated that Bailey had made it clear . . . that he
did not want to come to the [Wildwood] program and he would not
participate in a 30-day blackout period. The e-mail also noted
it does not appear that treatment at [Wildwood] is [Baileys]
number one priority. He even stated . . . he was be[ing] coerced
and forced into the program. This is a voluntary program and we
would not force someone to stay here if they did not want to be
here.
On September 22 Bailey filed a grievance regarding
Wildwoods denial of his application to enter the program,
asserting his understanding that Wildwoods blackout period
involved no receipt of any incoming mail of [any sort] and
limited access to the law library . . . based upon merit.
Arguing that he needed to receive mail and have access to the law
library, Bailey maintained that those restrictions, as well as a
statement by the interviewer that they didnt want people in the
program that had [ongoing] legal matters that might distract
[from] their programming objectives, violated his constitutional
right to access the courts. He also repeated his allegation that
Wildwood did not comply with ADA requirements.
DOC responded on September 30: Law Library access and
legal call access are both allowed . . . . There is no
restriction specific to the black-out period. A digital Law
Library terminal is in the Therapeutic Community unit. Appeal
denied because all access is already available. Bailey appealed
to DOCs Commissioner, who responded on November 14 reiterating
that legal mail is not restricted during the blackout period and
that law library access and legal call access are unrestricted
during this period. The letter concluded that Baileys grievance
issues have been addressed and clarified so that the restrictions
initially described do not exist and that [t]herefore, [Baileys
grievance for] relief . . . is granted.
In January 2006 Bailey sent a letter to the executive
director of the parole board, explaining his disability and
referencing a 1993 report stating that Wildwood could not
accommodate mobility-impaired prisoners. Bailey requested
placement at Clitheroe to receive his substance abuse treatment.
No response from the parole board is evident from the record.
In June 2006, after a delay requested by Baileys
attorney, the parole board held the hearing continued from the
previous June. The parole board began by stating it had ordered
Bailey to do substance abuse treatment via the [program] at
Wildwood, then added [t]he board . . . instructed prisoner Bailey
to apply for substance abuse treatment, [and to] make every
effort to comply with his court order. (Emphasis added.)
Bailey described his attempts to secure substance abuse
treatment dating back to 2002. When the parole board accused him
of treatment shopping, Bailey responded that was an unfair
assessment made without looking at all the treatment avenues he
had pursued. Bailey again raised his concern about Wildwoods ADA
compliance. The parole board responded by saying,
[T]he board recognizes that ADA is the law of
the land. [But] we had no idea what is
acceptable or not with ADA. . . . We do know
that weve been told that the program at
Wildwood is accessible to disabled people.
The hearing must be heard on parole matters
only and we are not here (indiscernible)
. . . and you have full right to take them to
a court of law in the state of Alaska but we
are not here to take the parole boards time
today to discuss [that].
On July 5 the parole board revoked Baileys parole,
finding that he had failed to actively participate and
successfully complete substance abuse treatment offered to him
while incarcerated. The parole board further denied Bailey any
consideration for parole through the remainder of his sentence.
Bailey appealed to the superior court in January 2007.
In his opening brief he argued that: (1) he was not given
constructive notice that failure to be accepted into the Wildwood
program would be sufficient grounds for revoking his parole;
(2) he complied with the parole boards June 2005 order to apply
to a treatment program; and (3) because Wildwood denied his
application, no substance abuse treatment was ever offered to him
within the meaning of the original judgment. In his reply brief,
Bailey clarified that his constructive notice argument was that
of a due process violation, his objections to the Wildwood
program were in defense of his rights under the ADA and his
constitutional right to access the courts, and the parole boards
failure to give proper consideration to Baileys concerns violated
those rights.
In April 2008 the superior court concluded that Bailey
did not demonstrate a good faith effort to comply with the court
order, and that the parole boards decision to revoke Baileys
parole was a reasonable exercise of the boards authority
supported by more than substantial evidence. The superior court
did not directly address Baileys constitutional or ADA claims.
Bailey appeals from that decision.
In May 2008 Bailey prevailed in a separate post-
conviction relief action, establishing that he should have been
ordered to serve his sentences concurrently rather than
consecutively. In light of that decision, Bailey asserts on
appeal to us that he was ineligible for the Wildwood program at
the time of his parole board hearing because he did not have
enough time remaining on his sentence to complete the program,
and that the parole boards decision must therefore be reversed as
a matter of law.
III. STANDARD OF REVIEW
We independently review the record from a parole board
decision after the superior court, functioning as an intermediate
appellate court, has considered a request for relief.3 We
evaluate whether factual determinations of the parole board are
supported by substantial evidence.4 When the parole board
exercises its discretionary authority we review its action for
reasonableness to insure that its determinations are supported by
evidence in the record as a whole and there is no abuse of
discretion.5 But claims that conditions of parole violate
constitutional rights are questions of law to which we apply our
independent judgment.6 As with all questions of law, we will
adopt the rule that is most persuasive in light of precedent,
reason, and policy.7
IV. DISCUSSION
Bailey argues in part that revocation of his parole
violated his rights under the United States and Alaska
Constitutions. According to Bailey his due process rights
include sufficient constructive notice that his failure to be
enrolled in the Wildwood . . . program would result in the
immediate revocation of his mandatory parole . . . . He does not
deny he received notice that he must apply to a residential
treatment program. He contends that [t]here was no indication by
the Board at the hearing that if [Bailey] were not accepted into
the program, he would automatically lo[s]e his right to a parole
and that the Board did not order [him] to reapply if he was
denied entrance to the program. Because the constitutionality of
a parole condition is a threshold matter,8 we consider this
argument first.
Even though parolees enjoy fewer rights than the
general population, under both the United States and Alaska
Constitutions, a parolee may not be deprived of his limited
liberty without due process of law.9 Due process includes
reasonable notice,10 which in this context requires notice of what
conditions an individual must satisfy to avoid revocation of his
parole.
We find the reasoning of the court of appeals in
Hamrick v. State11 particularly informative here. In that case a
probation condition required Hamrick to successfully complete an
approved sexual offender treatment program.12 Hamricks probation
was revoked after DOC misplaced his first application for a
treatment program and he delayed too long in submitting another.13
The court of appeals held that DOC has the duty to make it clear
to the prisoner that . . . he will be in violation of his
conditions of probation if he fails to fulfill certain
expectations.14 It concluded Hamrick was not fully aware that his
conduct violated a condition and would lead to revocation of his
probation, and so it could not have been a willful violation.15
Because Hamrick lacked notice, the court of appeals reversed the
superior courts order revoking his probation.16
Here we conclude Bailey lacked sufficient notice that
failure to reapply to and successfully enroll in the Wildwood
program after he prevailed in his grievance would result in
revocation of his parole. At the close of its meeting the parole
board instructed Bailey to make an application to the . . .
program. (Emphasis added.) The Board then told Bailey: If youre
not accepted, we will review that or if you are accepted, well
review this case again in December. The Notice of Board Action
and the Order Revoking Parole, issued the same day as the
hearing, confirmed the parole boards mandate that Bailey apply
for substance abuse treatment while incarcerated. (Emphasis
added.) In compliance with the unambiguous language of the
parole boards order Bailey applied to the Wildwood program. His
application was rejected. Yet the parole board later revoked his
parole for failure to participate in substance abuse treatment
while incarcerated. (Emphasis added.)
The parole boards instructions provided notice that
Bailey must apply to a residential treatment program or risk
parole revocation. But the parole board expressly allowed for
the possibility that Baileys application would be denied, and the
parole board did not warn of any possible consequences including
revocation of parole if Baileys application was denied and he
did not reapply. Although the parole boards July 2005 letter to
Bailey stated it is the Boards expectation that you will be
actively participating in an institutional substance abuse
program, we agree with Bailey that [d]espite the Boards
expectations, there [was] no admonition that denial of acceptance
into a program would result in parole revocation.
DOC nevertheless argues Bailey had constructive notice
in light of the Notice of Court-Ordered Treatment, the Parole
Violation Report, and the parole boards order that he apply for
treatment. Citing Williams v. State17 and Alexander v. State,18
DOC maintains that Baileys parole . . . was revoked because he
failed to re-apply to Wildwood after he was informed that he
would have legal mail access and access to the law library. We
disagree.
The Notice of Court-Ordered Treatment warned that
[f]ailure to participate in or comply with the treatment plan of
a court-ordered rehabilitation program, if the program is made
available to [Bailey] would lead to a petition to revoke his
parole. The Parole Violation Report filed by an officer who
later requested to withdraw his petition to revoke Baileys parole
charged that Bailey failed to actively participate and
successfully complete substance abuse treatment offered to him
while incarcerated. Yet both the notice and the report are
premised upon the availability of a treatment program. We agree
with Bailey that [a] program cannot be said to be offered, and/or
made available if one is denied acceptance into the program, at
least if the denial is not willfully procured by the prisoner.
Here no program was offered or made available to
Bailey. Bailey signed a Prisoner Notice of Court-Ordered
Treatment in October 2002. Soon after transferring to Spring
Creek, Bailey inquired about his court-ordered treatment but was
told DOC personnel were not interested in reviewing [Bailey] at
this time. Bailey applied for treatment in Arizona but was
placed on a waiting list. Bailey unsuccessfully attempted to
enroll in Clitheroe in 2004 and 2005. Bailey complied with the
parole boards June 2005 order to apply to a residential treatment
program, but his application was rejected after he raised
concerns about the facilities. Baileys concerns were addressed
only after he filed a grievance that was resolved in his favor.
In light of these efforts, as well as Piankos testimony regarding
Baileys willingness to seek treatment, we reject DOCs argument
that the Notice of Court-Ordered Treatment and Parole Violation
Report were sufficient to provide notice.
We also disagree with DOCs contention that Bailey was
on notice he had to take additional affirmative steps to enroll
in the Wildwood program once he prevailed with his grievance. It
would have been reasonable for Bailey to believe it was incumbent
upon DOC personnel in charge of the Wildwood program to
reconsider his application after his successful grievance. There
is no evidence from which to find that Bailey, in failing to
reapply after his successful grievance, was or should have been
fully aware he was risking parole revocation.19
We therefore conclude Bailey lacked adequate notice
that failure to reapply to, and be enrolled in, the Wildwood
program after his successful grievance would lead to revocation
of his parole. The revocation therefore violated Baileys
constitutionally guaranteed right to due process.20
V. CONCLUSION
We REVERSE the decision of the superior court and
REMAND for proceedings consistent with this opinion.
_______________________________
1 In a decision that was effective as of 1998, Bailey was
found to be disabled under the Social Security Act.
2 Bailey alleged that he sustained an injury at Wildwood
in 2002. In 2004 he sued DOC for failure to comply with ADA
requirements.
3 See Covington v. State, 938 P.2d 1085, 1088 (Alaska
App. 1997) (independently reviewing record of parole board
decision after superior court denied request for relief).
4 Id. at 1090.
5 Id. at 1090-91.
6 Id. at 1089 (citing Dye v. State, 650 P.2d 418, 420 n.5
(Alaska App. 1982)).
7 Lewis v. State, 139 P.3d 1266, 1269 (Alaska 2006).
8 Covington, 938 P.2d at 1089.
9 Paul v. State, 560 P.2d 754, 756 (Alaska 1977) (citing
Wortham v. State, 519 P.2d 797, 799 (Alaska 1974)).
10 E.g., Smith v. State, 872 P.2d 1218, 1224 (Alaska
1994); see also United States v. Dane, 570 F.2d 840, 843 (9th
Cir. 1977) (It is an essential component of due process that
individuals be given fair warning of those acts which may lead to
a loss of liberty. (citing Bouie v. City of Columbia, 378 U.S.
347 (1964))).
11 64 P.3d 175 (Alaska App. 2003) (reversing order
revoking probation because prisoner lacked notice). We
acknowledge that there are prominent and significant differences
between probation and parole. State v. Staael, 807 P.2d 513, 517
n.5 (Alaska App. 1991). Nevertheless, we look to the reasoning
in Hamrick because the due process issue presented here is
treated identically in the parole and probation contexts. See
Staael, 807 P.2d at 517 n.5 ([D]ue process requirements for
revocation of probation and parole are constitutionally
indistinguishable. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782
n.3 (1973))); Paul, 560 P.2d at 756 (echoing the United States
Supreme Courts observation that there is no perceptible
difference relevant to the guarantee of due process between the
revocation of parole and the revocation of probation (quoting
Gagnon, 411 U.S. at 782)).
12 Hamrick, 64 P.3d at 176.
13 Id. at 176-77.
14 Id. at 178.
15 Id. at 178-79.
16 Id.
17 924 P.2d 104 (Alaska App. 1996) (rejecting challenges
to requirement that defendant participate in and complete any sex
offender treatment program offered in prison).
18 38 P.3d 543, 545 (Alaska App. 2001) (holding that order
to take advantage of available sex offender treatment programs
conferred adequate notice that parolee must make meaningful
efforts to participate in the treatment program).
19 See Hamrick, 64 P.3d at 178-79 (reversing revocation of
probation because the record did not establish that the prisoner
was fully aware he needed to promptly reapply to a treatment
program).
20 The parties briefs present other constitutional and
statutory claims, including Baileys argument that the parole
boards decision should be reversed as a matter of law because of
the recalculation of time he has left to serve. We do not reach
these issues because we conclude it was a violation of due
process to revoke Baileys parole.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
