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State v. Bourdon (10/16/2008) ap-2188

State v. Bourdon (10/16/2008) ap-2188

                             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


STATE OF ALASKA, )
) Court of Appeals No. A-9950
Appellant, ) Trial Court No. 1PE-05-55 CI
)
v. ) O P I N I O N
)
EUGENE J. BOURDON JR., )
)
Appellee. ) No. 2188 October 16, 2008
)
          Appeal  from the Superior Court,  First  Judi
          cial  District, Petersburg, Larry C.  Zervos,
          Judge.

          Appearances:   Marilyn  J.  Kamm,   Assistant
          Attorney  General, Criminal Division  Central
          Office,   and  Talis  J.  Colberg,   Attorney
          General,  Juneau, for the Appellant.   Daniel
          Lowery,   Assistant  Public   Defender,   and
          Quinlan  Steiner, Public Defender, Anchorage,
          for the Appellee.

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

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.

          Eugene  J.  Bourdon  was convicted of  four  counts  of
sexual  abuse of a minor in the second degree.1  After serving  a
period of incarceration, he was released on parole.  Later,  when
          the Parole Board learned that Bourdon had probably violated his
parole, the Board issued a warrant for his arrest.  After Bourdon
was arrested, he was placed at Glacier Manor, a halfway house  in
Juneau  run  by  Gastineau  Human Services.   The  Department  of
Corrections  contracts  with Gastineau Human  Services  to  house
inmates  there.  Bourdon stayed at Glacier Manor  for  248  days,
until  the  Parole Board revoked his parole.  The  Department  of
Corrections  then  transferred him to  Lemon  Creek  Correctional
Center.
          Under  Alaska law a prisoner is entitled to a deduction
of  one-third  of  the term of imprisonment ... if  the  prisoner
follows  the  rules  of the correctional facility  in  which  the
prisoner  is  confined.2  This deduction  for  good  behavior  is
called good time.3  Bourdon contends that he was eligible for  83
days  of good time credit for the time he spent at Glacier Manor.
The  Department of Corrections refused to award Bourdon good time
on  the  ground  that the good time statute only  authorized  the
award  of  good time for imprisonment in a state-run institution.
Relying  on  Valencia  v. State,4 the Department  contended  that
because  Glacier  Manor was not a state-run institution,  Bourdon
was  not  entitled to good time credit for the time he served  in
that institution.
          Bourdon challenged the Departments ruling by filing  an
application  for  post-conviction relief.  Superior  Court  Judge
Larry  C.  Zervos  held that Bourdon was entitled  to  good  time
credit  for  the  time  he served in Glacier  Manor.   The  State
appeals.  We affirm.

          Why we uphold Judge Zervoss decision
          The  State  first argues that Bourdons application  for
post-conviction relief was deficient because he failed to  submit
an  affidavit  in  support of his factual contentions.   But,  as
Judge Zervos recognized, the parties do not dispute the facts  in
this  case.   Bourdons  application raises  a  question  of  law:
whether Bourdon was entitled to good time credit for the time  he
was  incarcerated at Glacier Manor. Bourdons application  clearly
presented  this  issue, and the State had  every  opportunity  to
contest Bourdons claim and present its case to Judge Zervos.
          The  State next argues that Bourdon is not entitled  to
good  time credit for the time he spent in Glacier Manor.  As  we
have  previously  pointed out, under Alaska  law  a  prisoner  is
entitled  to a deduction of one-third of the term of imprisonment
...  if  the  prisoner  follows the  rules  of  the  correctional
facility  in  which  the  prisoner  is  confined.5   Correctional
facility  is  defined  as a prison, jail,  camp,  farm,  half-way
house,   group  home,  or  other  placement  designated  by   the
commissioner for the custody, care, and discipline of prisoners.6
In  contrast, a state correctional facility is defined separately
as  a  correctional  facility owned or run by  the  state.7   The
Commissioner has the duty to designate the correctional  facility
to which a prisoner is ... committed and may do so without regard
to  whether  it  is maintained by the state.8  The definition  of
correctional facility therefore appears to include any  placement
designated by the Commissioner to house prisoners.9   It  is  not
          limited to state-run facilities.
          Indeed,  it  would  appear to be unfair  to  allow  the
Department of Corrections to send a prisoner to a facility  where
he  would  not  receive  good  time.   A  prisoner  sent  by  the
Department of Corrections to a private prison, because  he  would
not  receive  good time, would serve a longer sentence  than  the
prisoner the Department sent to a state-run institution.
          The  State relies on Valencia v. State10 in support  of
its  position  that Judge Zervos erred in awarding  Bourdon  good
time  credit  for the time that he served in Glacier  Manor.   In
Valencia we held that the defendant was not entitled to good time
credit  for  the  time  he  spent in a court-ordered  residential
treatment  program as a special condition of probation,  although
he was entitled to Nygren credit for that time when his probation
was  revoked.11   We held that Alaskas good time statute  applied
only  to  prisoners  who  are serving sentences  in  correctional
facilities.12   Judge  Zervos  correctly  recognized   that   our
decision in Valencia applies only to defendants serving  time  as
probationers  in  a court-ordered residential treatment  program.
It  does not apply to prisoners, such as Bourdon, who were placed
by   the  authority  of  the  Department  of  Corrections  in   a
correctional facility.
          The  State  contends that the key factor in determining
whether  Bourdon was entitled to good time credit is whether  the
Department of Corrections would forfeit his good time  credit  or
transfer him to a state-run facility if he violated the rules  at
Glacier  Manor.  This argument is without merit because prisoners
are  entitled to good time credit under AS 33.20.010(a)  if  they
follow[  ]  the rules of the correctional facility in which  they
are  confined.  The Department of Corrections does not  have  the
discretion to withhold good time credit from a prisoner under  AS
33.20.010(a)  unless  he violates the rules of  the  correctional
facility where he is confined.  Bourdon did not violate the rules
of Glacier Manor.  He is entitled to good time credit.
          The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.

          I  write  separately to further explain why I  conclude
that the States arguments in this appeal have no merit.
          The States first argument is that Bourdons petition for
post-conviction relief was legally deficient  that  the  petition
failed  to  comply  with  Alaska Criminal  Rule  35.1(d)  because
Bourdon  did not submit an affidavit that set out separately  all
of the [f]acts within [his] personal knowledge.
          But  as Judge Zervos correctly observed, Bourdons claim
for  relief did not rest on facts within [his] personal knowledge
in  the  sense that there were facts known to Bourdon that  might
not otherwise be known to the State.  Instead, Bourdons claim for
relief was based entirely on facts that were already known to the
State  and  were  not  in  dispute:  the fact  that  Bourdon  was
arrested for violating his parole, the fact that the Parole Board
ordered  Bourdon  confined at Glacier Manor  pending  the  Boards
revocation hearing, the dates of Bourdons confinement at  Glacier
Manor,  and  the official correspondence and pleadings  exchanged
between Bourdon and officials of the Department of Corrections as
he  tried  to convince them that he should be awarded  good  time
credit for the time he spent at Glacier Manor.
          In  its  briefs  to this Court, the State  argues  that
Bourdon  knew  other relevant facts, and that he was  obliged  to
file an affidavit containing these facts.  But the facts to which
the State refers are not covered by Rule 35.1(d).
          According  to the State, Bourdon should have  filed  an
affidavit  stating (1) that Glacier Manor has its own  rules  for
inmates,  rules that differ in various ways from the  rules  that
govern  inmate behavior at Lemon Creek (the Juneau prison run  by
the  Department of Corrections); and (2) that Bourdon would  have
been transferred to Lemon Creek if he had violated Glacier Manors
house rules.
          These  facts  were not within Bourdons sole  knowledge,
nor  could  it even be said that they might not be known  to  the
State.   It appears that these facts were known equally  well  to
both Bourdon and the State.
          Furthermore,  it was the State who wished  to  rely  on
these facts  because the State believed that these facts advanced
its  argument that Bourdon was not entitled to good  time  credit
for his time at Glacier Manor.
          Although  Criminal Rule 35.1(d) requires defendants  to
explain  and  support the factual bases for  their  claims,  Rule
35.1(d)   does  not  require  defendants  to  submit   affidavits
containing  all  other  facts within their knowledge  that  might
conceivably defeat their claims.  This is especially true in  the
present  case  where, under Bourdons view of the law,  and  under
the  superior  courts view of the law, and  (as  I  am  about  to
explain)  under  this Courts view of the law, the  omitted  facts
that the State complains about are irrelevant to Bourdons claim.
          For  these reasons, Judge Zervos correctly rejected the
States interpretation of Rule 35.1(d) and the States accompanying
contention that Bourdons petition failed to satisfy that rule.
          I  also  note that the only prejudice which  the  State
claims  to have suffered is that Judge Zervos held an evidentiary
hearing  to  allow Bourdon to supplement and refine  his  claims.
The  States argument is flawed because no evidentiary hearing was
held in this case.  Judge Zervos held an oral argument where  the
attorneys explained and clarified their legal positions,  but  no
testimony  or  other  evidence was  presented  at  this  hearing.
Instead,  Judge Zervoss decision to grant Bourdons  petition  was
based  on the facts recited in the documents filed by the parties
and, as I have already noted, those underlying facts were not  in
dispute.
          The  States second argument on appeal is an  attack  on
Judge  Zervoss ultimate ruling in this case  the legal conclusion
that Bourdon is entitled to good time credit for the days he  was
confined at Glacier Manor.
          The  State contends that prisoners are entitled to good
time  credit  only  if  they  are serving  their  sentence  in  a
correctional  facility operated by the Department of  Corrections
and,  thus, Bourdon is not entitled to good time credit  for  the
time  he  spent  in  Glacier Manor, a halfway house  operated  by
Gastineau Human Services.
          The  States  position is completely at  odds  with  the
governing   statutes.   Moreover,  as  revealed  by  the   States
attorneys  remarks to Judge Zervos at the oral  argument  in  the
superior court, the States position is internally inconsistent.
          The  Alaska  statute  governing good  time  credit,  AS
33.20.010, declares that every defendant convicted of an  offense
under  state  law is entitled to a credit against their  term  of
imprisonment  equaling one day for every  three  days  that  they
follow[]  the rules of the correctional facility in  which  [they
are] confined.  (Emphasis added)
          The   term  correctional  facility,  as  well  as   the
shorthand  term  facility,  are defined  in  AS  33.30.901(4)  as
meaning  [any]  prison, jail, camp, farm, half-way  house,  group
home, or [any] other placement designated by the commissioner for
the custody, care, and discipline of prisoners.
          In  contrast, AS 33.30.901(4) contains a separate, more
limited definition of the term state correctional facility.  This
term means a correctional facility owned or run by the state.  In
other  words, state correctional facilities are a subset  of  the
larger category, correctional facilities.
          Indeed,  under  AS  33.30.061,  when  the  commissioner
exercises  the authority (and fulfills the duty) to  designate  a
facility for each prisoner committed to the departments care, the
commissioner can make this designation without regard to  whether
[the facility] is maintained by the state.
           At the oral argument in the superior court, the States
attorney  acknowledged that the Department of Corrections  places
inmates in Glacier Manor.  Thus, even though Glacier Manor is not
run  by the state, it is still a correctional facility under  the
definition codified in AS 33.30.901(4).
          After  Bourdons parole was revoked and he was  returned
to  the custody of the commissioner, the commissioner could  have
designated  Glacier Manor as the correctional facility  in  which
Bourdon  would  be  housed.  And, at the  oral  argument  in  the
superior  court, the States attorney conceded that Bourdon  would
be  entitled  to good time credit if this happened   even  though
Glacier Manor is not run by the State.
          Moreover,   AS   33.30.031  expressly  authorizes   the
commissioner  to enter into contracts with other governments  and
with  private  agencies  to provide correctional  facilities  for
prisoners  within the commissioners custody  such as the  prisons
in  Arizona that house many Alaska offenders.  These correctional
facilities  are not run by the State of Alaska.  Seemingly  then,
under  the  States  view of the law, prisoners  housed  in  those
Arizona  facilities would not be entitled to  good  time  credit.
But  at  the  oral  argument in the superior  court,  the  States
attorney  conceded that those prisoners properly do receive  good
time credit.
          Despite  the States attorneys concessions at  the  oral
argument  in  the superior court, the State continues  to  assert
that Bourdon is not entitled to good time credit for the time  he
spent  at  Glacier  Manor.  In support of this  proposition,  the
State  relies  on this Courts decision in Valencia v.  State,  91
P.3d  983  (Alaska App. 2004).  According to the State,  Valencia
holds  that  prisoners  confined  to  halfway  houses  and  other
residential  treatment facilities are not entitled to  good  time
credit.
          The  State  is  wrong.   Both Valencia  and  the  prior
decision that it relies on, Parker v. State, 714 P.2d 802 (Alaska
App. 1986), involved defendants who were ordered into residential
treatment  as a special condition of their probation.   In  other
words, these defendants were not serving prison sentences.
          I acknowledge that the text of our decision in Valencia
may  not  expressly state that Valencia was on probation when  he
was confined to the residential treatment program.  However, this
fact  can be easily inferred from the text of the decision.   Our
opinion  in Valencia repeatedly refers to Valencias court-ordered
placement  at a residential treatment facility, and to  the  fact
that  the  issue of good time credit arose [after]  the  superior
court  revoked ... Valencias probation.  91 P.3d at  983.   Under
Alaska  law, a court has no authority to sentence a defendant  to
prison and then direct the Department of Corrections to place the
defendant  in  a  particular facility or program.   A  sentencing
court can specify a particular treatment program or facility only
as  a  condition  of probation.1  Moreover, the briefs  filed  in
Valencia (Court of Appeals File No. A-8527) clearly explain  that
the  defendant was confined in the residential treatment facility
as a probationer, not a prisoner.
            Because  the defendants in Valencia and  Parker  were
probationers,   and   not   prisoners   serving   sentences    of
imprisonment,  they were not expressly covered by the  good  time
statute,  AS 33.20.010.  Valencias argument for good time  credit
hinged  on asking this Court to adopt an expansive interpretation
of that statute, beyond its literal wording.
          In   Valencia,  we  rejected  the  contention  that  AS
33.20.010   should  be  interpreted  so  broadly  as   to   cover
probationers  who  were  ordered to  spend  time  in  residential
treatment as a special condition of probation.  But our  decision
          in Valencia casts no doubt on a prisoners entitlement to good
time  credit  if  (in  the  words of AS 33.20.010)  the  prisoner
follows  the  rules  of the correctional facility  in  which  the
prisoner is confined.
          For  all  of  these  reasons,  Judge  Zervos  correctly
rejected the States contention that prisoners are not entitled to
good  time  credit  unless  they are  housed  at  a  correctional
facility run by the State.  Under the pertinent statutes, it does
not  matter  who  runs  the correctional  facility.   Bourdon  is
entitled  to  good time credit for the time he spent  at  Glacier
Manor.

_______________________________
     1  Bourdon  v.  State,  Alaska App. Memorandum  Opinion  and
Judgment No. 4644 (Dec. 11, 2002), 2002 WL 31761482.

2  AS  33.20.010(a).   Bourdon  was  convicted  under  Former  AS
33.20.010(a)  (1995).   However,  the  pertinent  parts  of  this
statute are the same in the current version.

     3 AS 33.20.010.

     4 91 P.3d 983 (Alaska App. 2004).

     5 AS 33.20.010(a).

     6 AS 33.30.901(4).

     7 Id.

     8 AS 33.30.061(a).

     9  See  City of Kotzebue v. Dept of Corr., 166 P.3d  37,  43
n.28  (Alaska 2007) (noting that when the Commissioner  contracts
with  a  facility  to  provide custody for  Alaska  prisoners  he
necessarily designate[s] it as a correctional facility  under  AS
33.30.901(4)).

     10   91 P.3d 983 (Alaska App. 2004).

     11    Id.;  see  also  Nygren v. State, 658  P.2d  141,  146
(Alaska  App.  1983)  (holding that a defendant  is  entitled  to
credit  for  time  served  in  a program  that  subjects  him  to
restrictions  approximating  those  experienced  by  one  who  is
incarcerated).

     12   Valencia, 91 P.3d at 984.

1  Rust  v.  State,  582  P.2d 134, 137-38 (Alaska  1978);  State
v.  Combs, 64 P.3d 135, 137 (Alaska App. 2003) ([The] designation
of  the  prison facility to which the prisoner is to be  confined
...   is  committed  to  the  administrative  discretion  of  the
[Department] of Corrections, and not to the sentencing courts  of
Alaska.  ...  [A] sentencing court does not have the authority to
designate a particular prison facility in which a prisoner is  to
be confined.).

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