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Ivie v. State (3/28/2008) ap-2153

Ivie v. State (3/28/2008) ap-2153

                             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
     errors  to  the attention of the Clerk of the Appellate
     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


HAKIM IVIE, )
) Court of Appeals No. A-9680
Appellant, ) Trial Court No. 4FA-05-2920 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 2153 - March 28, 2008]
)
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Fairbanks,  Mark  I.  Wood,
          Judge.

          Appearances: David K. Allen, Assistant Public
          Advocate,  Fairbanks,  and  Joshua  P.  Fink,
          Public    Advocate,   Anchorage,   for    the
          Appellant.   Timothy  W.  Terrell,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

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

          COATS,  Chief Judge.

          Hakim Ivie was indicted for escape in the second degree
for  walking away from a halfway house.  To convict Ivie of  that
offense,  the State had to prove that he removed himself  from  a
correctional facility while he was under official detention.
          Ivie moved to dismiss the indictment, claiming that  he
was not under official detention at the halfway house because the
superior  court had ordered him released on bail.  Therefore,  he
argued,  he  did  not  commit the crime  of  escape,  but  rather
violated his conditions of release.
          The  superior court denied Ivies motion to dismiss, and
he  was  convicted in a bench trial.  He appeals his  conviction.
We reverse.

          Factual background
          In  2003,  Ivie was convicted of assault in the  second
degree.    He  received  a  sentence of  4  years  with  2  years
suspended,  and was placed on probation for a period of  3  years
following his release from confinement.
          Ivie  served his initial term of imprisonment  and  was
released  on  probation.   On June 3, 2005,  Ivie  was  arraigned
before  Superior Court Judge Niesje J. Steinkruger on a  petition
to  revoke  his  probation. The petition to revoke probation  was
based  on  an  allegation  that Ivie  had  consumed  alcohol  and
violated other conditions of his probation.
          During  the  hearing on this petition to revoke,  Ivies
attorney  pointed  out  that  Ivie was  on  a  waiting  list  for
substance abuse treatment at the Ralph Perdue Center, an  alcohol
treatment  program.  Judge Steinkruger asked if the Ralph  Perdue
Center would do an updated substance abuse evaluation while  Ivie
was  confined.   The parties agreed to that, but  Ivies  attorney
stated  that  his  request was for Ivie to  be  released  to  the
NorthStar  Center,  a  halfway  house.   The  following  exchange
occurred:
     Defense  Attorney:    No, I dont have an objection  [to
     an  evaluation but], our request is going to be that he
     be released to NorthStar.

     Judge Steinkruger:  Any objection to that ... ?

     Probation Officer:    I dont.  At this point, though, I
     havent  talked to them to see if they would even accept
     him.

     Judge   Steinkruger:   All  right.   No   bail   status
     continues.  If a bed opens up at NorthStar  and  he  is
     eligible,  Mr. Ivie, upon notification by his probation
     officer to [the Fairbanks Correctional Center], may  be
     transferred to NorthStar.  He is to immediately  obtain
     an  updated evaluation from Ralph Perdue, and take  the
     first  available  bed if inpatient is  recommended,  or
     begin  outpatient if outpatient is recommended.   If  a
     bed  opens up for inpatient, his conditions of  release
     are that he is to take the bed, follow all rules, if he
     is discharged for any reason, he is returned to FCC.

     So  if a miracle would happen and a bed would open  up,
     he can go directly into it.

Judge  Steinkruger  ended the hearing by setting  a  date  for  a
status hearing and a bail hearing.
          On   June  8,  2005,  Ivie  was  transferred  from  the
Fairbanks Correctional Center to the NorthStar Center.   On  July
3,  2005,  Ivie  walked  away from the NorthStar  Center  without
permission  from the NorthStar Center staff or  the  court.   The
grand  jury  indicted  him on a charge of escape  in  the  second
degree, a class B felony offense.1
          On  October 4, 2005, Ivie filed a motion to dismiss the
indictment,  contending that he was not guilty of escape  in  the
second  degree.   Superior Court Judge Mark I.  Wood  denied  the
motion  to  dismiss the indictment.  The case was then  tried  on
stipulated facts.  Judge Wood found Ivie guilty of escape in  the
second degree.  Ivie appeals.

          Why  we  conclude  that  Ivie  could  not  be
          convicted of escape in the second degree

          A  person  commits the crime of escape  in  the  second
degree  if he removes himself from a correctional facility  while
under official detention.2   Ivie contends that he  could not  be
legally charged with escape in the second degree because  he  was
not  under official detention at the NorthStar Center.   Official
detention is defined by AS 11.81.900(b)(40):   Official detention
means custody, arrest, surrender in lieu of arrest, or actual  or
constructive restraint under an order of a court in a criminal or
juvenile  proceeding,  other than an order  of  conditional  bail
release.  Ivie argues that he was not under official detention at
the  NorthStar  Center because he was confined  on  an  order  of
conditional bail release.
          The   State  concedes  that  the  superior  court   has
authority to release a probationer from Department of Corrections
custody  to a halfway house through an order of conditional  bail
release.   But  the  State disputes that this happened  in  Ivies
case.  The State argues that Judge Steinkruger merely recommended
to  the  Department of Corrections that Ivie  be  placed  in  the
NorthStar Center.
          We  addressed a similar situation in State  v.  Paige.3
In  Paige,  after Paige was incarcerated on a petition to  revoke
his  probation,  the  superior court  ordered  him  placed  in  a
residential  treatment program at a halfway  house.   Later,  the
superior  court revoked Paiges probation and imposed an  18-month
sentence.   But the court ordered Paige to complete a residential
program  at  a halfway house as a special condition of probation.
The  court  ordered  Paige  to  complete  the  program  and  then
immediately begin serving his jail sentence.
          Paige walked away from the program and was arrested and
charged with escape.  The superior court held that Paige was  not
guilty  of  escape because the court had ordered Paige  into  the
program as a special condition of probation.  The court concluded
that Paige was not in confinement under an order of the court and
was  therefore not under official detention.4  The superior court
relied  on Beckman v. State.5   We relied on Beckman in affirming
the superior courts decision.
          Paige and Beckman establish that a person is not guilty
of escape just because he leaves confinement.6  In order for Ivie
          to be guilty of escape, the court must have ordered the
Department  of  Corrections to confine  him,  and  he  must  have
removed  himself  from  that confinement.  If  Judge  Steinkruger
ordered Ivies release to the NorthStar Center, her order would be
an  order  of conditional bail release.  Ivie would not be  under
official detention and could not be charged with escape.
          This case thus turns on interpreting Judge Steinkrugers
order.  To the extent that Judge Steinkrugers order is ambiguous,
we  believe that we should interpret the order in the light  most
favorable  to Ivie.  Ivie faces a felony conviction; it  was  the
duty of the court to make Ivies status clear.
          When  we look at Judge Steinkrugers remarks in context,
it  appears  that she intended to release Ivie to  the  NorthStar
Center.   At  the  hearing  on Ivies petition  to  revoke,  Ivies
attorney  requested  that  Ivie be released  to  [the]  NorthStar
[Center].   The  probation  officer indicated  that  she  had  no
objection,  but that she needed to find out if the halfway  house
would accept Ivie.  Judge Steinkrugers ruling was in response  to
these  comments.   In context, it appears that the  judge  wanted
Ivie   to  remain in state custody until there was an opening  at
the  NorthStar  Center.  Ivie was then to go  there,  undergo  an
evaluation, and participate in any  program  recommended  by  the
Ralph  Perdue  Center.   Judge Steinkruger  told  Ivie  that  his
conditions  of  release were to participate in  the  program  and
follow all the rules, or he would be returned to state custody at
the Fairbanks Correctional Center.
          In  interpreting  Judge Steinkrugers remarks,  we  have
considered the fact that an Alaska statute specifically  provides
that  when  a  judge  places  a  person  in  state  custody,  the
Department   of  Corrections,  not  the  judge,  determines   the
correctional  facility to which a prisoner is to be committed  to
serve  a term of imprisonment or period of temporary commitment.7
Alaska  cases hold that a judge can recommend a facility, but  it
is  ultimately up to the Department of Corrections  to  determine
where a person committed to state custody is incarcerated.  Judge
Steinkruger thus had no authority, if Ivie was in state  custody,
to  designate the facility where he would stay.  We are confident
that Judge Steinkruger, an experienced judge, was aware of this.
          The  State  points  out that Judge  Steinkruger  stated
that, if a possible placement opened up at the NorthStar facility
that  upon  notification by his probation  officer  to  the  FCC,
[Ivie]  may be transferred to NorthStar.8  The State argues  that
this   shows   that  Judge  Steinkruger  was  merely   making   a
recommendation to the Department of Corrections to transfer  Ivie
to the NorthStar facility.  This is certainly a possible reading,
but  we  do  not consider it the most likely one.   Again,  Judge
Steinkrugers  ruling  was  in response  to  a  request  by  Ivies
attorney  that  Ivie be released to the NorthStar Center.   There
was no objection from his probation officer.  It appears that the
only  reason  that  Ivie was not sent directly to  the  NorthStar
Center  was  that  the  probation officer was  not  sure  if  the
facility would accept him and if there was a place for him there.
So it appears, in context, that Judge Steinkruger ordered Ivie to
the  Fairbanks Correctional Center until he could be released  to
the NorthStar Center.
          We  therefore  conclude  that Ivie  was  not  in  state
custody when he was at the NorthStar Center.  He was there  under
a  court  order releasing him to that facility.  He was therefore
not   under  official  detention  when  he  left  that  facility.
Accordingly, he did not commit the crime of escape in the  second
degree.   Ivies  conviction for escape in the  second  degree  is
VACATED  and  the  indictment against  him  for  that  charge  is
dismissed.
_______________________________
     1 AS 11.56.310(a)(1)(A).

     2 AS 11.56.310(a)(1)(A).

     3 Alaska App. Memorandum Opinion and Judgment No. 3476 (Oct.
9, 1996), 1996 WL 596920.

     4 Id. at 7, 1996 WL 596920 at *4.

     5 689 P.2d 500 (Alaska App. 1984).

     6  Id.  at  503; Paige, Memorandum Opinion and Judgment  No.
3476 at 7, 1996 WL 596920 at *4.

     7  AS 33.30.061(a).  See State v. Combs, 64 P.3d 135, 136-37
(Alaska App. 2003).

     8 Emphasis supplied.

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