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State v. Shetters (10/8/2010) ap-2279

State v. Shetters (10/8/2010) ap-2279

                                               NOTICE
 
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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 
                                                             Court of Appeals No. A-10378 
                                Appellant,                 Trial Court No. 3AN-05-5437 Cr 

                        v. 
                                                                    O    P  I  N  I  O  N 
CHRISTOPHER SHETTERS, 

                                Appellee.                    No. 2279    -   October 8, 2010 

                Appeal     from   the   Superior   Court,    Third   Judicial   District, 
                Anchorage, Michael L. Wolverton, Judge. 

                Appearances:      John   K.   Bodick,   Assistant   Attorney   General, 
                Criminal   Division   Central   Office,   Anchorage,   and   Daniel   S. 
                Sullivan, Attorney General, Juneau, for the Appellant.          Tracey 
                Wollenberg, Assistant Public Defender, and Quinlan Steiner, 
                Public Defender, Anchorage, for the Appellee. 

                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                AS 33.20.010(a) states that "a prisoner [who is] sentenced to a term of 

imprisonment that exceeds three days is entitled to a deduction of one-third of the term 

of imprisonment[,] rounded off to the nearest day[,] if the prisoner follows the rules of 

----------------------- Page 2-----------------------

the   correctional   facility   in   which   the   prisoner   is   confined."  For   a   defendant   whose 

sentence is 2 years or more, this good time credit converts the remaining portion of the 

defendant's sentence from time spent in prison to time spent on mandatory parole.  See 

AS 33.20.040(a), as construed in Hill v.   State, 22 P.3d 24, 27 (Alaska App. 2001). 

See   also  State   v.   Staael,   807   P.2d   513,   516-19   (Alaska   App.   1991)   (holding   that   a 

prisoner has no right to refuse mandatory parole release when their good time credit 

equals the time remaining on their sentence of imprisonment). 

                 The present appeal presents two questions relating to the calculation of a 

defendant's      good    time   credit   under    AS    33.20.010(a)     when     they   are  released    on 

mandatory parole, but when that mandatory parole is later revoked and they are returned 

to prison to serve the remainder of their sentence. 

                 The first question is this:       When a defendant is released on mandatory 

parole, and one of their conditions of parole is to reside in a correctional restitution 

center or halfway house, but later the defendant's parole is revoked and they are ordered 

to serve the remainder of their sentence in prison, is the defendant entitled to good time 

credit for the time they spent at the correctional restitution center or halfway house? 

                 The second question is this:         When a defendant is released on mandatory 

parole, but the defendant is later arrested on a parole revocation warrant and placed in 

custody   in   a   correctional   restitution   center   or   halfway   house   (rather   than   in   prison) 

pending the Parole Board's final decision on whether to revoke the defendant's parole, 

is   the   defendant   entitled   to   good   time   credit   for   the   time   spent   at   the   correctional 

restitution center or halfway house if the Parole Board ultimately decides to revoke the 

defendant's parole and orders them to serve their remaining sentence? 

                 For the reasons explained in this opinion, we conclude that defendants in 

these two situations are "prisoners" who are "confined" in a "correctional facility" for 

                                                   - 2 -                                               2279
 

----------------------- Page 3-----------------------

purposes of the good time credit statute, and thus they are entitled to good time credit for 

the time they spent in the correctional restitution center or halfway house. 

       Underlying facts 

              In 2005, Christopher Shetters was convicted of felony driving under the 

influence and was sentenced to serve 3 years in prison.  After serving two-thirds of this 

sentence (in other words, with 365 days of his sentence remaining) Shetters was released 

on mandatory parole.     In early 2008, the Alaska Parole Board took Shetters back into 

custody on suspicion that he had violated the conditions of parole. 

              On January 29, 2008, Shetters appeared before the Alaska Parole Board for 

a preliminary parole revocation hearing.      At the conclusion of this hearing, the Parole 

Board found probable cause to believe that Shetters had violated his parole, but the 

Board released Shetters to a "CRC" - i.e., a "correctional restitution center" established 

under AS 33.30.151 - pending the Parole Board's final decision on whether to revoke 

Shetters's parole. 

              Shetters stayed at the restitution center for 37 days (from February 9th until 

March 16th), but then he was jailed for an unrelated misdemeanor offense. 

              On June 20th, the Parole Board held another preliminary parole revocation 

hearing in Shetters's case.    Again, the Board released Shetters to a restitution center 

pending its final decision.  Shetters began his second CRC residency on July 12th. 

              Eighteen days later, on July 30th, the Parole Board made its final decision: 

the Board decided to release Shetters on parole once again.   As part of his conditions of 

parole, Shetters was directed to reside at the restitution center for an additional four 

months (starting July 30th). 

                                            - 3 -                                       2279
 

----------------------- Page 4-----------------------

                 Shetters resided at the restitution center until October 13th (for a total of 

94 days, counting from July 12th), but then the Parole Board ordered Shetters back to 

prison for new parole violations. Shetters served the remainder of his sentence in prison. 

                 In its calculation of Shetters's release date, the Department of Corrections 

gave Shetters a credit of 131 days against his sentence for the time he spent in residence 

at a correctional restitution center (i.e., the 37 days from February-March, plus the 94 

days from July-October). However, the Department of Corrections did not give Shetters 

good time credit under AS 33.20.010(a) for these 131 days.                       What this meant,   as   a 

practical matter, was that Shetters's release date was delayed by 43 days - i.e., one-third 

of 37 days, rounded off, plus one-third of 94 days, again rounded off - compared to 

what his release date would have been if he had received good time credit for his days 

in the restitution center. 

        Does   AS   33.20.010,   the   statute   granting   good   time   credit   to   prisoners 
        confined      in  a  correctional     facility,  apply    to  defendants     in  Shetters's 
        situation? 

                 In Lock   v.   State,   609   P.2d   539,   545   (Alaska   1980),   our   supreme   court 

concluded that if, as a condition of a suspended imposition of sentence, a sentencing 

court orders a defendant to live in a residential facility where the restrictions on the 

defendant's freedom approximate the restrictions associated with imprisonment, then if 

the   defendant's   probation   is   later   revoked   and   the   defendant   is   ordered   to   serve   a 

sentence of imprisonment, the defendant is entitled to credit against their sentence for the 
time spent in the residential facility. 1 

    1   The holding in Lock is now codified in AS 12.55.086(c). 

                                                   - 4 -                                                 2279 

----------------------- Page 5-----------------------

                 However,   even   though   probationers   are   entitled   to   day-for-day   credit 

against   their   sentences   for   the   time   they   spent   in   jail-like   residential   facilities   as   a 

condition of probation, they are not entitled to a corresponding good time credit under 

AS 33.20.010.       Valencia v. State, 91 P.3d 983, 983-84 (Alaska App. 2004); AS 12.55.­ 

086(c)   ("Deductions   for   good   conduct   under   AS   33.20.010   do   not   constitute   'time 

served' [for purposes of the credit against a defendant's sentence of imprisonment when 

a suspended-imposition-of-sentence probation is revoked]."). See also State v. Bourdon, 

193 P.3d 1209, 1213-14 (Alaska App. 2008) (Mannheimer, J., concurring). 

                 In Valencia, we gave two reasons for our conclusion that defendants are not 

entitled to good time credit for the time they spent in a jail-like residential facility as a 

condition of probation. 

                 Our first reason was based on the wording of the good time credit statute, 

AS 33.20.010(a). Because the statute refers to "prisoners", we concluded that the statute 

was   intended   to   apply   "only   to   prisoners   who   are   serving   sentences   in   correctional 

facilities" - that is, only to defendants who are serving sentences of imprisonment, and 

not to probationers.       Valencia, 91 P.3d at 984.         Our second reason was that the policy 

behind awarding good time credit to defendants "applies uniquely to a prison situation": 

                         As we recognized in Briggs v. Donnelly, [828 P.2d 
                 1207, 1209 (Alaska App. 1992),] the legislative purpose of 
                 this statute is "to reward prisoners for good behavior during 
                 their   terms   of   imprisonment   ...   [and   to]   give   [correctional 
                 officials] a means of enforcing discipline within correctional 
                 facilities."    The   idea   is   to   give   prisoners   an   incentive   to 
                 remain   on   good   behavior   -   because   prisoners   know   that 
                 their stay in prison will be extended if they lose their good 
                 time credit through misbehavior. 

                         On the other hand, defendants who are serving their 
                 sentences   in   court-ordered   residential   treatment   programs 

                                                    - 5 -                                               2279
 

----------------------- Page 6-----------------------

                 already have a different incentive for good behavior.  If they 
                 violate    the   rules   of  the  treatment     program,     they   can   be 
                 expelled from the program, and expulsion from the program 
                 means   that   they   will   have   to   serve   the   remainder   of   their 
                 sentence in prison. 

Valencia, 91 P.3d at 984 (footnotes replaced by bracketed text). 

                 The facts of Shetters's case differ from the situation presented in Valencia 

because   Shetters   was   not   a   probationer,   but   rather   a   parolee   released   on   mandatory 

parole.   Shetters's appeal presents the question of how to categorize prisoners who are 

released on mandatory parole, but who are then placed in a jail-like residential facility 

(i.e., one that qualifies as a "correctional facility") by the Parole Board as a condition of 

their mandatory parole, or who are later ordered into a jail-like residential facility by 

virtue of a pre-adjudication placement order issued by the   Parole Board in a parole 

revocation proceeding. 

                 Shetters argues that, in either of these two situations, if the defendant's 

parole   is   later   revoked   and   the   defendant   is   ordered   to   serve   the   remainder   of   their 

sentence, the defendant should be treated as a "prisoner" for the time they spent in the 

residential   facility,   and   thus   the   defendant   should   receive   commensurate   good   time 

credit.    The   State,   on   the   other   hand,   argues   that   such   defendants   are   in   a   position 

analogous to probationers, and therefore this Court's decision in Valencia governs their 

situation:  in other words, the defendants are entitled to day-for-day credit against their 

sentence for the time they spent in the residential facility, but they are not entitled to 

good time credit. 

                 Seemingly,   this   issue   was   already   resolved   by   our   decision   in State   v. 

Bourdon, 193 P.3d 1209 (Alaska App. 2008). 

                                                    - 6 -                                                2279
 

----------------------- Page 7-----------------------

                The defendant in Bourdon was released from prison on parole, but he was 

later arrested on a parole revocation warrant.  Following his arrest, Bourdon was placed 

at a halfway house while he awaited the Parole Board's decision whether to revoke his 

parole.   Id. at 1210.     About eight months later, the Parole Board revoked Bourdon's 

parole, and the Department of Corrections transferred him to a regular prison facility. 

Ibid. 

                The issue inBourdon was whether Bourdon was entitled to good time credit 

for the eight months that he spent at the halfway house, awaiting the Parole Board's final 

decision.     The State argued that Bourdon was not entitled to good time credit because, 

even though the Department of Corrections placed him in the halfway house, the halfway 

house   was not directly operated by the Department of Corrections, but rather was a 

private institution operating as a correctional facility by virtue of a contract with the 

Department.  Ibid. 

                We rejected this argument because the good time credit statute applies to 

all prisoners "confined" in a "correctional facility", and because the statutory definition 

of   "correctional   facility"   (AS   33.30.901(4))   encompasses   all   facilities   for   housing 

prisoners,   regardless   of   whether   they   are   operated   by   the   State   or   by   others   under 

contract with the State.  Id. at 1210-11. 

                The State also relied on our decision in  Valencia, but we pointed out that 

Valencia dealt with a defendant who was confined to a halfway house as a condition of 

probation imposed by the sentencing court, "[rather than being] placed [there] by the 

authority of the Department of Corrections".  Id. at 1211. 

                In key respects, Shetters's situation appears to be analogous to the situation 

presented in Bourdon.  Shetters was released on mandatory parole, and then he was later 

taken into custody on a parole revocation warrant and placed at a correctional restitution 

center pending the Parole Board's decision on whether to revoke his parole.                    Shetters 

                                                  - 7 -                                             2279
 

----------------------- Page 8-----------------------

remained      at  the   restitution   center   in  this  post-arrest,    pre-adjudication      status   from 

February 9th until March 16th (for a total of 37 days), and then again from July 12th 

until July 30th (another 19 days).  Under Bourdon, Shetters would seemingly be entitled 

to good time credit for these 56 days. 

                 The State argues, however, that Bourdon was wrongly decided - that this 

Court   mistakenly   focused   solely   on   the   issue   of   whether   the   halfway   house   was   a 

"correctional facility", and that we overlooked the crucial fact that Bourdon was placed 

at the halfway house, not by the authority of the Department of Corrections, but rather 

by the authority of the Parole Board.   The State argues that defendants who are confined 

by order of the Parole Board are not "prisoners" until the Parole Board makes the final 

decision     to  revoke     their  parole    and   orders    them    to  resume     serving    their  prison 

            2 
sentence. 

                 We believe that the answer to the State's argument is found in our decision 

in State v. Staael, 807 P.2d 513 (Alaska App. 1991). 

                 The issue in Staael was whether a prisoner has the right to reject mandatory 

parole and choose, instead, to continue serving their sentence in prison - similar to a 

defendant's right under Alaska law to reject probation and to demand a prison sentence 

    2   We note that the State's briefs to this Court in Bourdon drew no distinction between 

(1) the Parole Board's placement of a prisoner pending the Board's resolution of a parole 
revocation proceeding and (2) the Commissioner of Corrections' placement of a prisoner 
after the prisoner's parole is formally revoked and the prisoner is ordered to resume serving 
their sentence.  Nor did the State ever suggest that Bourdon's entitlement to good time credit 
hinged on such a distinction.         In fact, even though the State   now asserts that this Court 
reached the wrong decision in Bourdon because we failed to appreciate the importance of the 
fact that Bourdon   was placed   at the   halfway house   by the   Parole   Board   rather than   the 
Commissioner        of Corrections, the State's brief in Bourdon declared that "Bourdon was 
referred   to   Glacier   Manor   [i.e.,   the   halfway   house]   by   the   Department   of   Corrections." 
(Opening Brief of the State of Alaska in State v. Bourdon, Court of Appeals File No. 9950, 
at page 8.) 

                                                    - 8 -                                               2279
 

----------------------- Page 9-----------------------

with no portion suspended. 3       This Court held that a prisoner does not have the right to 

reject mandatory parole.  Id. at 516-19.        For present purposes, the significant aspect of 

our decision in Staael is our rationale for concluding that a prisoner has no right to reject 

mandatory parole. 

                We first noted that, under the applicable statutes (AS 33.16.010(c) and 

AS   33.20.040(a)),   mandatory   parole   is,   indeed,   mandatory:        both   of   these   statutes 

declare that when a prisoner is serving a sentence of 2 years or more, and when the 

prisoner's good time credit equals the time remaining in their sentence, the prisoner 

"shall be released on mandatory parole" for the remaining period of their sentence. 

(Emphasis added) As we stated in Hill v. State, 22 P.3d 24, 27 (Alaska App. 2001), the 

effect of this good time credit is to convert the remaining portion of a prisoner's sentence 

from time spent in prison to time spent on mandatory parole. 

                We then noted in Staael that there was a crucial distinction between (1) the 

policy behind giving sentencing courts the discretion to place an offender on probation 

and (2) the policy behind requiring mandatory parole release for sentenced prisoners 

during the last portion of their sentence.       Staael, 807 P.2d at 516-18. 

                We explained that probation is "an act of grace and clemency", intended 

as a more lenient alternative to imposition of the statutory penalty for the defendant's 

crime.  Id. at 517. 

                In contrast, the purpose of mandatory parole "[is] not to provide a lesser 

penalty or [a more lenient] alternative to the statutory penalty."  Ibid.  Nor is mandatory 

parole   "an  ad   hoc   exercise   of   clemency".  Id.   at   518. Rather,   mandatory   parole   is 

"an established variation on imprisonment" - a mechanism for achieving the rehabilita­ 

    3   See Brown v. State, 559 P.2d 107 (Alaska 1977), where our supreme court held that 

a defendant has the right to refuse probation. 

                                                 - 9 -                                             2279 

----------------------- Page 10-----------------------

tive goal of sentencing by helping offenders reintegrate into society.  Ibid.             Mandatory 

parole is an "integral part of the penological process", a procedure that applies uniformly 

to all prisoners whose sentence equals or exceeds 2 years and whose good time credit 

equals the time remaining in their sentence.  Id. at 517. 

                As we noted in Staael, "The legislature has decided that all prisoners are 

to serve the last third of their sentences outside the prison, under the strict supervision 

of the Department of Corrections, as part of the rehabilitative goal."  Ibid.  Mandatory 

parole    "is  merely   a  variation   of  [an  offender's    correctional]    treatment   during    the 

completion of the sentence."  Id. at 518. 

                We then declared that, because mandatory parole is simply "a variation of 

the [offender's] sentence", and because a mandatory parolee "gains [their] freedom by 

statutory mandate", a prisoner facing release on mandatory parole "[has] no alternative 

but to serve out [their] sentence in [the] manner determined by the legislature".                Id. at 

518. 

                In other words, a prisoner who is released on mandatory parole is, in a 

technical sense, still serving their sentence - albeit not in prison. 

                We now return to the two questions presented in this appeal. 

                The   first   of   these   questions   involves   defendants   who   are   released   on 

mandatory parole, but whose conditions of parole require them to reside in a correctional 

restitution center or halfway house.  We conclude, based on Staael, that if, as a condition 

of mandatory parole, the Parole Board requires an offender to reside in a correctional 

restitution center, a halfway house, or any other residential placement that qualifies as 

a "correctional facility" as defined in AS 33.30.901(4), then even though the offender has 

technically been "released" on parole, they are effectively serving their sentence in this 

correctional facility - and thus, under AS 33.20.010, they are entitled to good time 

credit for the time spent in that correctional facility if their parole is later revoked. 

                                                -  10 -                                           2279
 

----------------------- Page 11-----------------------

                The second of these questions involves defendants who are released on 

mandatory      parole   and   who    are  later  arrested  on  suspicion    of   having   violated   the 

conditions of their parole.      If, pending the Parole Board's final resolution of the parole 

revocation proceeding, the Parole Board places the offender in a correctional restitution 

center,    a  halfway    house,    or  any   other   residential   placement     that  qualifies   as  a 

"correctional      facility",  the  offender    is  effectively   serving    their  sentence    in  this 

correctional facility - and they are therefore entitled to good time credit for the time 

spent in that correctional facility if their parole is later revoked. 

                With particular regard to our resolution of this second question, we note 

that if we adopted the contrary rule proposed by the State - i.e., a rule that gave such 

offenders only a day-for-day credit against their sentence if the Board later revoked their 

parole and ordered them to serve the remainder of their sentence - then any delays in 

the   Parole    Board's    final   resolution   of   the  parole   revocation     proceeding     would 

unjustifiably increase the punishment of the parolee. 

                For   example,   assume   that   an   offender   had   1   year   remaining   on   their 

sentence when they were released on mandatory parole. Also assume that, following the 

initiation of parole revocation proceedings, the Parole Board ordered the offender placed 

in a restitution center or a halfway house pending the Board's final resolution of the 

revocation proceeding. 

                According to the calculation method described by the State's attorney at the 

oral argument in this case, if the Parole Board revoked the offender's parole 1 month 

later, then the offender would receive 1 month's day-for-day credit against their sentence 

for the time spent in the restitution center or halfway house, and the offender would be 

awarded good time credit against the remaining 11 months of their sentence -  i.e., 

approximately 112 days of good time credit.              Thus, if the offender maintained good 

behavior and did not lose any of this good time credit, the offender would be released 

                                                -  11 -                                           2279
 

----------------------- Page 12-----------------------

from prison after serving a total of a little over 8 months in custody - the 1 month of 

pre-adjudication residence at the halfway house, plus the remaining 11 months reduced 

by 112 days of good time credit (i.e., a little over 7 months). 

                But if the Parole Board waited 4 months before revoking the offender's 

parole,   then   the   offender   would   receive   4   months'   day-for-day   credit   against   their 

sentence for the time spent in the restitution center or halfway house, and the offender 

would be awarded good time credit against the remaining 8 months of their sentence - 

i.e., approximately 80 days of good time credit.  In that case, if the offender maintained 

good   behavior and did not lose any of this good time credit, the offender would be 

released from prison after serving a total of a little over 9 months in custody - the 

4   months    of  pre-adjudication     residence    at   the  halfway   house,   plus   the  remaining 

8 months reduced by 80 days of good time credit (i.e., a little over 5 months). 

                Thus, in this example, the State's proposed interpretation of the good time 

credit law gives rise to a disparity of 1 month in the total amount of time that the parole 

violator would have to serve in custody - a disparity that arises solely from the differing 

amount of time it took the Parole Board to issue its final decision in the parole revocation 

proceeding. 

                The fact that the State's proposed interpretation of the law gives rise to this 

unjustified disparity in the offender's sentence is an independent reason for this Court 

to reject the State's position.     See Endell v. Johnson, 738 P.2d 769, 771 (Alaska App. 

1987)     (rejecting   a  proposed    interpretation    of  the  "credit   for  time  served"    statute, 

AS 12.55.025(c), in part because it would have created an unjustified disparity between 

the total sentence served by defendants who remained incarcerated pending trial and 

those who were able to secure their pre-trial release on bail). 

                                                 -  12 -                                           2279
 

----------------------- Page 13-----------------------

       Conclusion 

              For the reasons explained here, we conclude that when the Parole Board 

orders a mandatory parolee to reside at a correctional restitution center, a halfway house, 

or any other non-prison correctional center, the mandatory parolee is entitled to both (1) 

credit for   time   served and (2) good time credit corresponding to the period of their 

enforced residence at the correctional center if the Board later revokes their parole and 

orders them to serve some or all of their remaining sentence.         The judgement of the 

superior court is AFFIRMED. 

                                            -  13 -                                      2279
 
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