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McKinley v. State (9/11/2009) ap-2234

McKinley v. State (9/11/2009) ap-2234

                             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


BOBBY LEE McKINLEY, )
) Court of Appeals No. A-10009
Appellant, ) Trial Court No. 3AN-03-12733Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) No. 2234 September 11, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, Philip R. Volland, Judge.

          Appearances:    David   Reineke,   Assistant
          Public Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  Ann
          B. Black, 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 Bolger, Judges.

          BOLGER, Judge.

          Bobby  Lee  McKinley  argues  that  he  should  receive
credit against his sentence of imprisonment for the time he spent
in  transitional housing while attending  aftercare treatment  at
the  Salvation  Army Adult Rehabilitation Program.   We  conclude
that,  although McKinley was placed in residential  treatment  at
the Salvation Army by a court order, his residence at the program
for  aftercare  did  not  approximate incarceration  because  the
program  did not require residency, and because the facility  did
not require twenty-four hour custody or supervision.

     Background
          McKinley  was  indicted on one count  of  second-degree
theft1  on January 14, 2004, and was convicted of that charge  on
September  6,  2006.  Prior to the entry of McKinleys  no-contest
plea,  the superior court ordered McKinley to enter the Salvation
Armys  six-month residential treatment program as a condition  of
his pretrial release,  and he remained at that facility until  he
completed  residential  treatment.   Immediately  after  McKinley
completed  the  residential treatment  program,  he  entered  the
Salvation  Armys aftercare program.  McKinley missed  two  weekly
group meetings and was consequently discharged from the aftercare
program and evicted from the Salvation Army facility.
          While  participating in the aftercare program, McKinley
lived  in  one  of the Salvation Armys grad rooms.   These  rooms
provide  optional  transitional housing for  residential  program
graduates enrolled in the Salvation Armys aftercare program.   In
order  to  remain in these facilities, the residents must  comply
with the Salvation Armys house rules.
          Superior   Court   Judge  Philip  R.  Volland   granted
McKinleys request for credit against his sentence for the time he
spent in residential treatment.  But McKinley also filed a motion
requesting  credit for the time he resided at the Salvation  Army
facility  during  aftercare.  At a hearing on  McKinleys  motion,
Larry  Dean  Bundy, the director of the Salvation  Army  program,
testified  that McKinleys residence during the aftercare  program
was essentially at the same location as the residential treatment
facility,  but  that  McKinley  had significantly  more  freedom.
Specifically,  participants in the aftercare program  could  sign
out   registering their destination and expected time  of  return
from  six oclock in the morning until curfew at eleven oclock  at
night.
          Judge  Volland denied McKinleys request for credit  for
the  time he attended the Salvation Armys aftercare program.  The
judge  found  that McKinley voluntarily chose to  reside  at  its
transitional  housing and to be subjected to the Salvation  Armys
rules.   Judge  Volland  also  found  that  the  Salvation   Army
aftercare  program  allowed McKinley to  basically  go  about...,
[and]  do anything and everything that someone who is not  in  an
incarcerative facility can do.  Judge Volland ruled that McKinley
was  not  entitled to credit for any of his time at the Salvation
Army  facility  after  he  completed  the  residential  treatment
program.
          McKinley now appeals.

     Discussion
          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... .  In Nygren v. State, we
held  that  this  statute  requires  credit  for  time  spent  in
residential  treatment, as long as the defendant is subjected  to
restrictions  approximating  those  experienced  by  one  who  is
incarcerated.2   We  listed a number of criteria  that  define  a
custodial facility:
          [T]heir residents are invariably sent  there
          by   court  order;  the  facilities  require
          residency,  and  residency requirements  are
          sufficiently stringent to involve a definite
          element  of  confinement; residents  of  the
          facilities  are subject to twenty-four  hour
          physical custody or supervision; any periods
          during  which residents may be permitted  to
          leave  the  facility are expressly  limited,
          both  as to time and purpose; while  in  the
          facility,  residents are under a  continuing
          duty    to   conform   their   conduct    to
          institutional  rules and to obey  orders  of
          persons  who  have  immediate  custody  over
          them; and residents are subject to sanctions
          if   they  violate  institutional  rules  or
          orders  and  to  arrest if  they  leave  the
          facility without permission.3
In  this  case,  we  address three of these  Nygren  criteria  to
determine  whether McKinley was in custody during  the  aftercare
program:   (1)  whether  the program required  residency  at  the
Salvation Army facility, (2) whether the facility required twenty-
four  hour  physical custody or supervision, and  (3)  whether  a
court order required McKinley to reside at the facility.4
          The  first two criteria suggest that McKinley  was  not
in  custody  during the aftercare program.  First, Judge  Volland
found  that Salvation Army did not require McKinley to reside  at
the program while he was enrolled in aftercare.  This finding  is
supported  by Mr. Bundys statement that residence in transitional
housing  during  aftercare  was  an  option  for  those  who  had
graduated  from  the  residential  program.   The  only  required
attendance  at  the Salvation Army facility was  for  a  one-hour
group  session  held once each week.  Judge Vollands  finding  is
also  supported by McKinleys testimony admitting that if  he  had
different  housing, he could have resided elsewhere.  The  record
thus  supports Judge Vollands finding that the aftercare  program
did not require residency.
          The   second  Nygren  criterion  is  twenty-four   hour
physical custody or supervision.  Judge Volland found that  those
patients  who  chose  to  reside at the Salvation  Army  facility
during  aftercare were free to do anything during the day subject
only to the obligation to sign out.  This finding is supported by
Bundys  testimony that aftercare patients who chose to reside  in
transitional  housing could leave as early at 6:00 a.m.  and  not
return  until  11:00 p.m.  An aftercare patient could  choose  to
spend the whole day visiting with family, going shopping, or even
going  to  the  state fair.  Thus, during the aftercare  program,
McKinley was not subject to twenty-four hour physical custody  or
supervision.
          McKinley argues that his aftercare program was  similar
to  the work-release program that we approved for credit in State
v.  Fortuny.5   But Fortuny involved a residential program  where
the  residents could be released only for a limited purpose:  for
work subject to program supervision.6  In contrast, McKinley  was
free  to  leave the Salvation Army facility with only  a  limited
restriction  he had to state his plans when he signed out.   This
sign-out  requirement  did not transform McKinleys  residence  in
transitional  housing into the twenty-four hour supervision  that
approximates incarceration.
          The  third Nygren criterion is less conclusive.   Judge
Volland recognized that it was questionable whether a court order
required McKinley to reside at the Salvation Army facility during
his aftercare.  When McKinley originally requested release to the
Salvation  Army program, his attorney only referred to  the  six-
month  residential  component of the program.   But  the  written
court  order simply stated that McKinley was released  to  SAARP,
suggesting  that he was required to reside at the Salvation  Army
facility  indefinitely.  At best, the court order  was  ambiguous
and  McKinley  has a colorable argument that he was  required  to
stay at the facility pending further court order.
          But  even  assuming the superior court ordered McKinley
to  reside  at  the  Salvation Army  during  aftercare,  we  have
previously  recognized that a court order  alone  does  not  turn
conditions  of pretrial release into custodial confinement.   For
example,  a  court  order for twenty-four  hour  electronic  home
monitoring  does  not  require credit  for  time  served  because
electronic    monitoring    does   not   approximate    custodial
incarceration.7   Likewise, a court order  for  twenty-four  hour
third-party  custody  does  not establish  that  such  a  release
approximates  custodial incarceration.8  We accordingly  conclude
that  McKinley  was  not necessarily subjected  to  incarceration
during  his  aftercare  simply because his  residence  there  was
designated  by  a  court order.  Regardless of the  court  order,
McKinleys aftercare did not approximate incarceration because the
aftercare  program  did  not require residency  and  because  the
facility did not require twenty-four hour custody or supervision.
          In  closing,  we note that this case does  not  involve
the  application  of  AS  12.55.027, a statute  that  applies  to
sentences  imposed  on  or after July 1, 2007.9   We  express  no
opinion  on the application of this statute because McKinley  was
sentenced before it became effective.

     Conclusion
          Judge  Volland  correctly concluded that  McKinley  was
not  entitled to credit for the time he resided at the  Salvation
Army  transitional housing during his aftercare.    We  therefore
AFFIRM the superior court order denying McKinley credit for  time
served.
_______________________________
     1 AS 11.46.130(a)(1).

     2 658 P.2d 141, 146 (Alaska App. 1983).

     3 Id.

     4  We  accept the findings of the trial court regarding  the
conditions   of  release  unless  those  findings   are   clearly
erroneous.    But  we  review  de  novo  whether  the  conditions
approximate incarceration.  See Matthew v. State, 152  P.3d  469,
472 (Alaska App. 2007).

     5 42 P.3d 1147 (Alaska App. 2002).

     6 Id. at 1149-51.

     7  See  Ackerman v. State, 179 P.3d 951 (Alaska App.  2008);
Matthew, 152 P.3d at 473.

     8 See Ackermann v. State, 716 P.2d 5, 6 (Alaska App. 1986).

     9 See ch. 24,  36(a), SLA 2007.

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