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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
| JAMES S. TRIPLETT, | ) |
| ) Court of Appeals No. A-9968 | |
| Appellant, | ) Trial Court No. 3PA-01-2366 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2200 December 19, 2008 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Palmer, Eric A. Aarseth, Judge.
Appearances: Daniel Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. John
K. Bodick, Assistant Attorney General, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
The parole board released James S. Triplett to
residential treatment as a condition of his discretionary parole
while he was serving the initial portion of his sentence of 4
years imprisonment with 2 years suspended for felony driving
while intoxicated. He now argues that under this courts decision
in Nygren v. State,1 he is entitled to credit for the time spent
in residential treatment against the suspended sentence that the
superior court imposed when it later revoked his probation. But
our decision in Nygren is based on AS 12.55.025(c), which
guarantees credit for time served pending trial, sentencing, or
appeal. Tripletts residential treatment on parole, therefore,
does not qualify for credit under this statute.
Facts and proceedings
On August 16, 2002, Superior Court Judge Beverly W.
Cutler sentenced Triplett to 4 years imprisonment with 2 years
suspended for felony driving while intoxicated.2 The conditions
of Tripletts probation required him to complete a substance abuse
program at the direction of his probation officer, including
residential treatment of up to one year.
Triplett reported to prison to serve the initial 2
years of his sentence. Then the parole board granted Triplett
discretionary parole release to the Salvation Army Adult
Rehabilitation Program. Triplett completed 168 days in the
program. Triplett was also subject to probation supervision
while he was in residential treatment.
Triplett continued on probation after he completed his
parole. He committed probation violations in May 2005 and March
2006, which resulted in short jail sentences. Then, in July
2006, Triplett violated his probation again by consuming
alcoholic beverages. On September 15, 2006, Superior Court Judge
Eric A. Aarseth revoked Tripletts probation and imposed the
balance of his suspended sentence.
After his probation was revoked, Triplett filed a
motion requesting Nygren credit for the time he spent in
residential treatment. Judge Aarseth eventually ruled that
Nygren did not apply in Tripletts case because the parole board,
and not the superior court, had ordered Triplett into residential
treatment. Triplett now appeals to this court.
Triplett is not entitled to receive credit under
Nygren for time that was not served pending his
trial, sentencing, or appeal
Alaska Statute 12.55.025(c) requires a sentencing judge
to give a defendant credit for time spent in custody pending
trial, sentencing, or appeal. The interpretation of this statute
is a legal issue that we review de novo.3
In Lock v. State,4 the Alaska Supreme Court concluded
that, for purposes of this statute, time spent in custody
includes time spent in residential treatment as a condition of an
order suspending the imposition of sentence.5 Then, in Nygren,
this court held that a defendant is similarly entitled to credit
for time spent in residential treatment while released on bail,
as long as the defendant is subjected to restrictions
approximating those experienced by one who is incarcerated.6
Both Lock and Nygren are based on AS 12.55.025(c), and
neither decision altered the statutory requirement that the time
in custody be spent pending trial, sentencing, or appeal.
Indeed, the Lock court specifically recognized that a probationer
could not claim that the time he spent on probation was pending
sentencing unless the probation was ordered as a condition of a
suspended imposition of sentence:
[I]n Paul [v. State, 560 P.2d. 754 (Alaska
1977)], the trial court, pursuant to AS
12.55.080, actually imposed sentence but
suspended the execution of a portion thereof.
Thus, Paul could not claim that the time he
spent on probation was pending . . .
sentencing within AS 11.05.040.[7] [In Locks
case] the imposition of sentence was
suspended pursuant to AS 12.55.085(a), but
could be pronounced upon revocation of
probation at any time after the suspension of
the sentence within the longest period for
which the defendant might have been
sentenced. The time Lock spent on probation
in Family House and Akeela House was
therefore literally pending . . . sentencing
within the language of AS 11.05.040.[8]
This court also noted this distinction when we followed
Lock in the Nygren case: [I]n Paul the court had imposed a
sentence and then suspended it, so that Paul could not claim that
the time he spent on probation was pending . . . sentencing under
former AS 11.05.040.9 So both Lock and Nygren recognized that a
probationer does not receive credit for time spent on probation
after a court imposes sentence.
Triplett argues that a decision on this basis would
reverse a substantial and long-established body of Alaska
sentencing jurisprudence. But for this proposition he cites Lock
and Nygren, cases which, as just discussed, recognized that time
served on probation is not pending sentencing unless the
imposition of sentence has been suspended. He also cites
Matthew v. State,10 a case where we recently reserved decision on
this very question.11 These citations do not demonstrate a long-
established jurisprudence. On the contrary, the limited case law
on this issue recognizes that credit for residential treatment is
limited to time served pending trial, sentencing, or appeal.
It is important to note that this case does not involve
the application of AS 12.55.027, a new statute that applies to
sentences imposed on or after July 1, 2007.12 Triplett was
sentenced before this new statute became effective, and we
express no opinion on the meaning or application of this statute.
Triplett did not spend his time in residential
treatment while pending trial, sentencing, or appeal, so he did
not qualify for credit under AS 12.55.025(c) for the time he
served in treatment. Judge Aarseth, therefore, correctly
concluded that Triplett was not entitled to credit against the
sentence the judge imposed when he revoked Tripletts probation.
Conclusion
We therefore AFFIRM the superior court order denying
Triplett credit for the time he served in residential treatment.
_______________________________
1 658 P.2d 141 (Alaska App. 1983).
2 Former AS 28.35.030(a)(1), (n) (2000).
3 See Hammock v. State, 52 P.3d 746, 751 (Alaska App.
2002).
4 609 P.2d 539 (Alaska 1980).
5 Id. at 545.
6 658 P.2d at 146.
7 Former AS 11.05.040 was essentially reenacted as AS
12.55.025(c). See Nygren, 658 P.2d at 142 n.1.
8 Lock, 609 P.2d at 543 (first emphasis added) (footnotes
and internal citations omitted).
9 Nygren, 658 P.2d at 145.
10 152 P.3d 469 (Alaska App. 2007).
11 Id. at 472.
12 See ch. 24, 36(a), SLA 2007.
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