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Gwalthney v. State (10/16/98) ap-1606
NOTICE: The text of this opinion can be corrected before the opinion is published in the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BLAKE GWALTHNEY, )
) Court of Appeals No. A-6847
Appellant, ) Trial Court No. 4FA-97-1461 Civ
v. ) O P I N I O N
STATE OF ALASKA, )
Appellee. ) [No. 1606 - October 16, 1998]
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for Appellant. Michael J. Stark, Assistant Attorney
General, and Bruce M. Botelho, Attorney General, Juneau, for Appel-
Before: Coats, Chief Judge, and Mannheimer and
Blake Gwalthney was convicted of attempted first-degree
sexual abuse of a minor; as part of his sentence, he was ordered to
complete a sex offender treatment program while incarcerated. He
failed to do this.
While Gwalthney was still in prison (that is, before the
date of Gwalthney's anticipated release on mandatory parole), the
Parole Board held a hearing to decide whether Gwalthney's parole
should be revoked due to his failure to complete the court-ordered
rehabilitative treatment. Gwalthney chose not to appear at this
hearing. The Parole Board found that Gwalthney had violated the
treatment provision of his sentence, and so the Board anticipatorily
revoked Gwalthney's parole.
Gwalthney then petitioned the superior court for a writ
of habeas corpus; he argued that he was entitled to parole release
even though he had failed to complete sex offender treatment. The
superior court denied Gwalthney's petition, and Gwalthney now
appeals the superior court's decision.
Gwalthney first asks us to decide whether the Parole Board
had the authority to anticipatorily revoke his scheduled mandatory
parole release on account of Gwalthney's failure to complete the sex
offender treatment ordered by the sentencing court. We recently
decided this very issue. In Webb v. Department of Corrections, we
held that the Parole Board can "anticipatorily revoke the scheduled
[mandatory] parole release of prisoners who, while still
incarcerated, engage in behavior that would warrant revocation of
their parole". [Fn. 1] The specific behavior at issue in Webb was
the defendant's failure to complete the sex offender treatment
ordered by the sentencing court the same behavior that led to the
anticipatory revocation of Gwalthney's parole. [Fn. 2]
Gwalthney recognizes that Webb controls his case, but he
asks us to re-examine Webb. We now do so and, for the reasons
explained here, we reaffirm Webb.
The origins of the present controversy are found in Benboe
v. State and the legislative response to that decision. [Fn. 3]
In Benboe, the superior court sentenced a defendant to
undergo rehabilitative treatment while serving his prison sentence;
on appeal, the defendant contended that this provision of his
sentence was illegal. This court agreed.
At the time Benboe was decided, AS 12.55.015 contained
only one provision subsection (a)(2) that authorized a
sentencing court to order a defendant to undertake rehabilitative
treatment. Under subsection (a)(2), a sentencing court can place
a defendant on probation "under conditions specified by the court".
As Benboe acknowledges, subsection (a)(2) empowers a sentencing
court to order a defendant to engage in rehabilitative treatment
during the defendant's probation (that is, after a defendant's
release from prison). [Fn. 4] However, Benboe held that neither
subsection (a)(2) nor any other then-existing provision of
AS 12.55.015 authorized a sentencing court to order a defendant "to
participate in [rehabilitative] treatment while incarcerated". [Fn.
In response to Benboe, the legislature amended AS 12.55.-
015 by adding subsection (a)(10). [Fn. 6] Subsection (a)(10)
authorizes a sentencing court to "order the defendant, while
incarcerated, to participate in or comply with the treatment plan
of a rehabilitation program that is related to the defendant's
offense or to the defendant's rehabilitation[,] if the program is
made available to the defendant by the Department of Corrections".
In the same session law, the legislature provided
penalties for a defendant's failure to comply with a sentencing
court's order under AS 12.55.015(a)(10) that is, an order to
participate in rehabilitative treatment while incarcerated. The
legislature amended AS 12.55.085(b) to explicitly empower a
sentencing court to revoke a defendant's probation for "violating
an order of the court to participate in or comply with the treatment
plan of a rehabilitation program under AS 12.55.015(a)(10)". [Fn.
7] The legislature also amended AS 33.16.220(a) to explicitly
empower the Parole Board to revoke a defendant's parole if the
defendant "has violated an order of the court to participate in or
comply with the treatment plan of a rehabilitation program under
AS 12.55.015(a)(10)". [Fn. 8]
In cases where a prisoner withdraws or is ejected from
rehabilitative treatment offered by the Department of Corrections,
it will often be obvious, well in advance of the defendant's
projected release date, that the defendant has violated the
sentencing court's order "to participate in treatment ... under
AS 12.55.015(a)(10)". The issue we faced in Webb was whether the
Parole Board was obliged to wait until that scheduled release date
before commencing parole revocation proceedings, or whether the
Board could instead anticipatorily revoke a prisoner's parole for
failure to comply with the sentencing court's order.
In Webb, we analogized the Parole Board's situation to the
situation faced by a sentencing court when it is asked to revoke a
defendant's probation. (As explained above, the legislature has
declared that if a defendant violates an order to participate in
rehabilitative treatment while incarcerated, this is a basis both
for revoking the defendant's probation and for revoking the
defendant's parole.) Alaska law already recognized a sentencing
court's authority to revoke a defendant's probation for violations
occurring before the defendant's release on probation. [Fn. 9] In
Webb, we recognized an analogous authority in the Parole Board
to revoke a prisoner's parole for violations occurring before the
prisoner's release on parole. [Fn. 10]
Gwalthney claims that our decision in Webb is inconsistent
with the Alaska Supreme Court's decision in Smith v. Department of
Corrections. [Fn. 11] We have examined the Smith decision, and we
find no inconsistency between Smith and Webb. We therefore re-
affirm our decision in Webb.
Gwalthney raises one other argument. He claims that, even
if the Parole Board has the authority to anticipatorily revoke the
parole of defendants who fail to complete court-ordered rehabilita-
tive treatment, the Parole Board acted prematurely in his particular
case because Gwalthney was under no obligation to complete sex
offender treatment while he was in prison. To analyze Gwalthney's
claim, and to explain the reasons why we reject it, we must detail
the history of Gwalthney's sentencing.
Gwalthney was convicted of attempted first-degree sexual
abuse of a minor, a class A felony. [Fn. 12] As a first felony
offender, Gwalthney faced a 5-year presumptive term for this crime.
[Fn. 13] The sentencing judge concluded that Gwalthney had
exceptional potential for rehabilitation, and the judge further
concluded that it would be manifestly unjust if the court failed to
adjust Gwalthney's presumptive term on account of his potential for
rehabilitation. [Fn. 14] The judge therefore referred Gwalthney's
sentencing to the three-judge sentencing panel. [Fn. 15]
The three-judge panel agreed that Gwalthney had
exceptional potential for rehabilitation and that, because of this
heightened potential for rehabilitation, failure to modify
Gwalthney's 5-year presumptive term would be manifestly unjust. The
panel therefore imposed the following sentence:
IT IS ORDERED [that] the defendant is
committed to the custody of the Commissioner of the Department of
Corrections for a period of ... 5 years[,] presumptive[.]
The defendant is ineligible for parole, except
as provided in AS 33.16.090(b) and (c) [and (e)]. [Fn. 16]
IT IS FURTHER ORDERED that the defendant is to
complete a sex offender [treatment] program approved by the
Department of Corrections. The defendant [is] eligible for
discretionary parole during the last half of his sentence if he
successfully completes the program.
Somewhat surprisingly, Gwalthney argues that this
judgement did not require him to complete sex offender treatment at
all. Gwalthney interprets the judgement to mean that he could
engage in sex offender treatment if he wished, but if he chose not
to complete sex offender treatment then he would not be eligible for
discretionary parole during the latter half of his sentence.
The short answer to Gwalthney's contention is that he has
misread the judgement. The three-judge panel did not give Gwalthney
a choice about engaging in sex offender treatment. The panel
"ordered ... the defendant ... to complete a sex offender
[treatment] program approved by the Department of Corrections". The
panel then provided that, if Gwalthney completed the mandated sex
offender treatment, he would be eligible for discretionary parole
during the second half of his 5-year sentence.
There is a longer answer to Gwalthney's contention: if
the judgement were construed in the manner he suggests, it would be
In AS 12.55.175(e), the legislature has limited the
authority of the three-judge panel to mitigate a presumptive term
when a case is referred to the three-judge panel on the basis of the
defendant's exceptional potential for rehabilitation. That statute
(e) If the three-judge panel determines
... that manifest injustice would result from imposition of the
presumptive term and the panel also finds that the defendant has an
exceptional potential for rehabilitation and that a sentence of less
than the presumptive term should be imposed because of the
defendant's exceptional potential for rehabilitation, the panel
(1) shall sentence the defendant to the
presumptive term required under AS 12.55.125;
(2) shall order the defendant under
AS 12.55.015 to engage in appropriate
programs of rehabilitation; and
(3) may provide that the defendant is
eligible for discretionary parole under AS 33.16.090 during the
second half of the sentence imposed under this subsection if the
defendant successfully completes all rehabilitation programs ordered
under (2) of this subsection.
Under this statute, the three-judge panel is obligated to do two
things: the panel (1) shall sentence the defendant to the
applicable presumptive term, and (2) shall order the defendant to
engage in appropriate rehabilitative programs under AS 12.55.015.
The three-judge panel is then given the discretion to do a third
thing: the panel (3) may grant the defendant eligibility for
discretionary parole during the second half of the sentence,
provided the defendant completes the rehabilitative treatment
specified in paragraph (2).
A straightforward reading of Gwalthney's judgement shows
that the three-judge panel scrupulously adhered to the mandate of
AS 12.55.175(e). The panel sentenced Gwalthney to the applicable
5-year presumptive term, the panel ordered Gwalthney to complete sex
offender treatment, and the panel then provided that, if Gwalthney
completed the rehabilitative treatment, he would be eligible for
discretionary parole during the last half of his sentence.
If we read the judgement as Gwalthney suggests (that is,
if we interpreted the judgement as giving Gwalthney the choice
whether to accept or decline sex offender treatment), then the
judgement would be in violation of AS 12.55.175(e)(2) for that
section requires the three-judge panel to order Gwalthney to
complete appropriate rehabilitative treatment.
For these two reasons, we reject Gwalthney's suggested
interpretation of the judgement. Gwalthney was ordered to complete
sex offender treatment, regardless of his wishes.
Gwalthney offers an alternative argument. He asserts
that, even if the three-judge panel did order him to complete sex
offender treatment, the panel did not require Gwalthney to complete
this rehabilitative treatment prior to his release from prison.
According to Gwalthney's interpretation, the judgement only requires
him to complete this rehabilitative treatment sometime prior to his
final discharge from state supervision that is, sometime prior
to his final discharge from parole. Thus, Gwalthney concludes, he
was not yet in violation of the three-judge panel's order, and the
Parole Board wrongly revoked his parole.
The three-judge panel did not explicitly fix a deadline
for Gwalthney's completion of sex offender treatment; the judgement
states only that Gwalthney "is to complete a sex offender
[treatment] program approved by the Department of Corrections".
However, as explained above, this provision appears in the judgement
because AS 12.55.175(e)(2) requires the judgement to contain such
a provision. To interpret Gwalthney's judgement, we must therefore
look to this governing statute.
AS 12.55.175(e)(2) declares that, when the three-judge
panel accepts a case because of the defendant's exceptional
potential for rehabilitation, the panel "shall order the defendant
under AS 12.55.015 to engage in appropriate programs of
rehabilitation". As explained above, there are two clauses of
AS 12.55.015 that authorize a sentencing court to order a defendant
to complete rehabilitative treatment.
The first is AS 12.55.015(a)(2), which authorizes the
court to place a defendant on probation "under conditions specified
by the court" including a condition that the defendant undergo
rehabilitative treatment. [Fn. 17] The second is AS 12.55.-
015(a)(10), which authorizes a sentencing court to "order the
defendant, while incarcerated, to participate in or comply with the
treatment plan of a rehabilitative program that is related to the
defendant's offense or to the defendant's rehabilitation[,] if the
program is made available to the defendant by the Department of
Thus, when AS 12.55.175(e)(2) speaks of the three-judge
panel's obligation to order the defendant to engage in appropriate
programs of rehabilitation "under AS 12.55.015", the statute
contemplates two different types of sentencing orders: an order
under AS 12.55.015(a)(10) for the defendant to engage in
rehabilitative treatment while incarcerated, and an order under
AS 12.55.015(a)(2) for the defendant to engage in rehabilitative
treatment while on probation.
If the three-judge panel had suspended any portion of
Gwalthney's sentence of imprisonment and had sentenced Gwalthney to
a period of probation, then the panel's judgement would conceivably
be ambiguous as to Gwalthney's deadline for completing sex offender
treatment for the panel would have the authority to order such
treatment either during Gwalthney's imprisonment or during his
ensuing release on probation. But the three-judge panel did not
suspend any portion of Gwalthney's sentence of imprisonment; he was
sentenced to serve 5 years. Thus, in context, there is no ambiguity
in Gwalthney's judgement. The three-judge panel ordered him to
complete sex offender treatment while incarcerated, as authorized
by AS 12.55.015(a)(10).
To sum up: The three-judge panel ordered Gwalthney to
complete sex offender treatment while he was in prison, and he
failed to do this. Because Gwalthney failed to complete the court-
ordered sex offender treatment, the Parole Board had good cause to
revoke Gwalthney's mandatory parole. And because the Parole Board
is empowered to act prospectively in such cases (that is, empowered
to revoke a prisoner's mandatory parole before the prisoner is
actually released on parole), the superior court correctly denied
Gwalthney's petition for writ of habeas corpus.
The judgement of the superior court is AFFIRMED.
Opinion No. 1601 (Alaska App.; August 8, 1998), slip opinion
Id., slip opinion at 3.
738 P.2d 356 (Alaska App. 1987).
738 P.2d at 360-61 & n.6.
Id., 738 P.2d at 361.
See SLA 1990, ch. 188, sec. 1.
AS 12.55.085(b)(3), enacted by SLA 1990, ch. 188, sec. 2.
AS 33.16.220(a)(2), enacted by SLA 1990, ch. 188, sec. 10.
See Webb, Opinion No. 1601, slip opinion at page 4 & n.4.
Id., slip opinion at pages 4-5.
872 P.2d 1218, 1226-27 (Alaska 1994).
AS 11.41.434(a)(1); AS 11.31.100(d)(2).
See Smith v. State, 711 P.2d 561 (Alaska App. 1985)
(recognizing the non-statutory mitigating factor of exceptional
potential for rehabilitation).
See AS 12.55.165 175.
The judgement, as actually worded, fails to mention subsection
(e) of AS 33.16.090 the subsection that allows the three-judge
panel to make a defendant eligible for discretionary parole during
the second half of a presumptive sentence if the defendant completes
all rehabilitative programs ordered by the three-judge panel. Given
the three-judge panel's explicit direction that Gwalthney be
eligible for parole under these circumstances, it appears that the
failure to mention AS 33.16.090(e) was unintentional.
Benboe v. State, supra; AS 12.55.100(a)(5).