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James v. State (1/7/2011) ap-2291

James v. State (1/7/2011) ap-2291

        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. 

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JOSEPH JAMES,                                    ) 
                                                 )            Court of Appeals No. A-9785 
                            Appellant,           )          Trial Court No. 3AN-05-6585 CI 
             v.                                  ) 
                                                 )                O    P   I  N  I  O  N 
STATE OF ALASKA,                                 ) 
                            Appellee.            ) 
                                                 )            No. 2291 - January 7, 2011 

                Appeal from the Superior Court, Third Judicial District,
                Anchorage, Peter A. Michalski, Judge.

                Appearances:       Paul    Malin,   Assistant   Public   Defender,    and
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
                Marilyn J. Kamm, Assistant Attorney General, and Daniel S.
                Sullivan, Attorney General, Juneau, for the Appellee. 

                Before:    Coats, Chief Judge, Bolger, Judge, and Stewart,
                Senior Court of Appeals Judge.*

                [Mannheimer, Judge, not participating.] 

                BOLGER, Judge.

                When the Alaska Parole Board released Joseph James on mandatory parole, 

the   Board    imposed     several    special   conditions,    including    the  requirement      that  he 

    *   Sitting    by  assignment     made   pursuant    to  article  IV,  section   11,  of  the  Alaska 

Constitution and Alaska Administrative Rule 23(a). 

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

participate in sex offender treatment.           In March 2005, James appealed to the superior 

court, contending that the special conditions were unconstitutional.  In December 2005, 

the Board revoked James's parole because he did not satisfy the sex offender treatment 

condition.     In   January   2006,   James   appealed   the   parole       revocation   and   moved   to 

consolidate   his   first   appeal   with   the   appeal   challenging   his   parole   revocation.     The 

superior   court   upheld   James's   conditions   of   parole   and       denied   James's   motion   to 

consolidate.      We   conclude   that   the   Parole   Board   was   authorized   to   impose   special 

conditions on James's mandatory parole release.                 We also conclude that the superior 

court   did   not   abuse   its   discretion   when   it   denied   James's   motion   to   consolidate   his 



                 In 1979, Joseph James was convicted of committing lewd acts against a 
child under the age of sixteen and spent three years in prison.1                  While James was on 

furlough in 1984, he attempted to sexually assault a woman, forced fellatio on a ten-year­ 

old boy, and had sexual contact with a nine-year-old girl. 

                  James was then charged and convicted of attempted sexual assault in the 

second degree and three counts of sexual abuse of a minor.                  Superior Court Judge Jay 

Hodges   sentenced   James   to   thirty   years   to   serve   with   an   additional   eighteen   years 

suspended.      Judge Hodges's sentence included several conditions of probation.                    Judge 

Hodges   ordered   James   to   refrain   from   excessive   drinking,   submit   to   urine   or   blood 

analysis, allow a probation officer to search him, not have contact with minor children 

    1   For a complete history of the somewhat complicated procedural posture and facts of 

this case, see James v. State, 730 P.2d 811 (Alaska App. 1987) (James I); James v. State, 739 
P.2d 1314 (Alaska App. 1987) (James II); James v. State, 754 P.2d 1336 (Alaska App. 1988) 
(James III). 

                                                     2                                                  2291 

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

outside   the   presence   of   another   adult,   and  meet   several   other   requirements.    The 

probation conditions did not expressly include sex offender treatment. 

                Prior to James's release on mandatory parole in 2005, James's probation 

officer submitted a request to the Parole Board for supplemental conditions of mandatory 

parole.   The Board notified James of the special conditions of his parole, but James 

submitted   written   objections   to   the   conditions.  The   Board   declined   to   modify   the 

conditions, which included a condition that required James to participate in sex offender 

treatment   and   education   classes.   On   March   26,   2005,   James   appealed   the   Board's 

decision to impose special conditions on his parole. 

                After his release,  James missed a sex offender education class and refused 

to cooperate with his treatment.        On December 8, 2005, the Board revoked James's 

parole and ordered him to serve ten years, the amount of his earned good time.  On 

January 19, 2006, James filed a notice of appeal in superior court, contesting the parole 

revocation.    At the same time, James moved to consolidate this new appeal with the 

appeal he filed in March 2005. Superior Court Judge Peter A. Michalski denied James's 

motion to consolidate the appeals. 

                Judge    Michalski   ultimately    upheld   the  Board's    special   conditions   on 

James's parole. James appeals Judge Michalski's decision, raising several constitutional 

challenges to the Parole Board's decision to impose the special conditions of mandatory 


                                                  3                                             2291

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

                In this case the superior court acted as an intermediate court of appeal; we 
independently review the Parole Board's decision.2             We review the denial of a motion 

to consolidate for abuse of discretion.3 


                The     Parole    Board    was    authorized     to   impose    special 
                conditions on James's mandatory parole. 

                The legislature originally enacted the relevant parole and good-time statutes 

in 1960.   At that time, the good-time statute provided that a prisoner released on good- 

time deductions with   more than 180 days remaining to serve "shall be deemed as if 
released on parole."4     The Parole Administration Act provided that a parolee's release 

was subject to "such terms and conditions ... as the [Parole Board] may prescribe."5              This 

relevant statutory language remained unchanged in 1979 and 1984 when James was 
sentenced for his crimes.6 

                In Braham v. Beirne, this court recognized that prisoners "who are released 

mandatorily under [the good-time statute] with greater than 180 days to serve under their 
sentences are released 'as if released on parole.'"7       Therefore, we held that the Board has 

    2   Kuzmin   v.   State,   Commercial   Fisheries   Entry   Comm'n,   223   P.3d   86,   88   (Alaska 


    3   C.L. v. P.C.S., 17 P.3d 769, 772 (Alaska 2001). 

    4   Ch. 107, § 4, SLA 1960. 

    5   Ch. 81, § 8, SLA 1960. 

    6   See former AS 33.20.040(a) (1982 & Supp. 1983-1984); former AS 33.15.190 (1982 

& Supp. 1983-1984). 

    7   Braham v. Beirne, 675 P.2d 1297, 1300 (Alaska App. 1984). 

                                                   4                                              2291

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

the authority to set special conditions of parole for mandatory parolees, and that the 

Board     may    revoke    the  parole    of  mandatory      parolees    for  violation   of  the   special 

                 In 1985, the legislature repealed the 1960 Parole Administration Act  and 
enacted a new chapter on parole administration.10              The 1985 statute expressly codifies 

a list of parole conditions that the Board can impose on discretionary or mandatory 
parolees.11     The   legislature   also   added   a   new   statutory   provision   that   clarified   the 

distinction between discretionary and mandatory parole.12                 When the House Judiciary 

Committee addressed the 1985 statute, it indicated that it "intend[ed] the provisions of 

AS 33.16.010 relating to Parole to offer a system of discretionary and mandatory parole 

consistent with the holding in Braham v. Beirne, ... whereby both [the mandatory and 

discretionary parole] systems are the same except as to how the offender is placed on 

                 The special conditions of parole in the 1985 statute did not 
                 violate the ex post facto clauses. 

                 James argues that his special conditions of parole are based on the current 

parole statute, enacted in 1985.         He argues that these conditions violate the prohibition 

    8   Id. 

    9   Former AS 33.15 (1982).

    10  Ch. 88, §§ 2, 7, SLA 1985 (enacting AS 33.16 and repealing AS 33.15).

    11  AS 33.16.150.

    12  AS 33.16.010.

    13   1985 House Journal 821.

                                                     5                                                2291

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

on ex post facto laws because this statute was not effective when he was convicted in 

1979 and 1984.  The ex post facto clauses of the state and federal constitutions prevent 

the legislature from enacting a statute that retroactively makes the punishment for a crime 
more burdensome.14 

              As noted above, beginning in 1960, the Parole Board was authorized to 

impose    special  conditions  of  parole.  Such   conditions   could  include  "residential, 

employment, and reporting requirements as well as prohibition of activities which would 
otherwise be lawful (for example, drinking alcoholic beverages)."15        Such conditions 

were valid as long as they were reasonably related to the parolee's rehabilitation and the 
underlying offense.16 

              James does not argue that his special parole conditions were unrelated to 

his offense, his prior record, or his rehabilitation. Instead, he argues that, before 1985, 

the Parole Board was not authorized to impose any special conditions of parole on those 

released on mandatory parole after deduction of good-time credits.  But we have already 

decided this issue in Braham :   the Parole Board was authorized to set special conditions 

of mandatory parole when James committed his offenses in 1979 and 1984, based on the 
statutes enacted in 1960.17  Therefore, the enactment of a new parole statute in 1985 did 

not increase James's punishment in a way that violated the ex post facto clauses. 

    14 Lapp v. State, 220 P.3d 534, 539 (Alaska App. 2009). 

    15 Morton v. Hammond , 604 P.2d 1, 3 (Alaska 1979). 

    16 Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977). 

    17 Braham , 675 P.2d at 1300. 

                                              6                                         2291

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

                 The   special   parole    conditions    imposed    when    James    was 
                released in 2005 did not constitute double jeopardy. 

                James argues that the special conditions on his 2005 parole constituted 

double jeopardy because they imposed a second punishment for his offenses in addition 

to the probation conditions originally imposed by the sentencing judges.                   The double 

jeopardy clauses of the state and federal constitutions forbid any increase in a sentence 
after it has been meaningfully imposed.18           But generally, the revocation of parole does 

not constitute double jeopardy because the authority to impose and revoke parole is 
inherent in a criminal sentence.19 

                Again, James's success depends on his contention that the Parole Board 

lacked the authority to impose special conditions for those released on mandatory parole. 

But the authority for the Parole Board to impose special conditions on a mandatory 

parolee was based on statutes in effect since 1960.              Therefore, the special conditions 

imposed on James's parole release were inherent in the criminal judgments imposed by 

the   sentencing   courts   when   James   was   convicted   in   1979      and   1984.    Since   these 

conditions   were   authorized   by   James's   original   sentences,   they   did   not   increase   his 

sentence when they were imposed in 2005. 

                 The special conditions imposed by the Parole Board did not 
                violate the doctrine of separation of powers. 

                James argues that the imposition of special conditions by the Parole Board 

(rather than the court) violates the doctrine of separation of powers.               The separation of 

    18  Lapp , 220 P.3d at 537. 

    19  Hill v. State, 22 P.3d 24, 29 (Alaska App. 2001) (citing Reyes v. State, 978 P.2d 635, 

639 (Alaska App. 1999)). 

                                                    7                                                2291 

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

powers     doctrine  safeguards    the  independence     of  each  of  the  three  branches    of 

government by limiting the authority of each branch to interfere with powers that have 
been delegated to the other branches.20       This doctrine "requires that the blending of 

governmental powers will not be inferred in the absence of an express constitutional 

               The text of the constitution does not support James's arguments that parole 

conditions are part of a function constitutionally entrusted to the judiciary.   There is an 

express constitutional provision regarding the parole system in the constitutional article 

defining the powers of the executive branch:   "Subject to procedure prescribed by law, 

the governor may grant pardons, commutations, and reprieves, and may suspend and 

remit fines and forfeitures.    This power shall not extend to impeachment.           A parole 
system shall be provided by law."22     There is no similar provision discussing any aspect 

of parole administration in the article defining the judicial branch. 

               Moreover, we have previously recognized that the sentencing function is 

not assigned to the exclusive jurisdiction of either the judicial or the executive branch: 

"The administration of probation is the responsibility of the judicial branch, whereas the 
administration of parole is the responsibility of the executive branch."23          While "the 

superior court has broad authority over the conditions of a defendant's probation, another 

governmental body -        the Board of Parole - controls the conditions of a defendant's 

    20 Alaska Pub. Interest Research Grp. v. State , 167 P.3d 27, 35 (Alaska 2007).

    21 Bradner v. Hammond, 553 P.2d 1, 7 (Alaska 1976).

    22  Alaska Const., art. 3, § 21. 

    23  See Smith v. State, Dep't of Corr., 872 P.2d 1218, 1228 (Alaska 1994) (quoting Paul

M. Bater,  The Constitution as Architecture: Legislative and Administrative Courts Under 
Article III , 65 Ind. L.J. 233, 274 (1990)). 

                                                8                                          2291

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

parole."24    The   imposition   of   special   conditions   of   parole   by   the   Parole   Board   is 

consistent   with   this   constitutional   grant   of   authority. Therefore,   the   imposition   of 

conditions of parole by the Parole Board does not violate the doctrine of separation of 


                James has not established a violation of his privilege against 

                James argues that the special conditions requiring him to participate in sex 

offender treatment violate his privilege against self-incrimination.   It is true that the state 

may not revoke probation or parole in response to a valid invocation of the privilege 
against self-incrimination.25     But James did not raise this argument in his brief on appeal 

to the superior court.    He has therefore abandoned this argument.26 

                Even   if   James   had   preserved   this   argument,   he   would   not   prevail. A 

parolee cannot validly invoke the privilege against self-incrimination when there is no 
realistic threat of incrimination.27     In order to show a violation of the privilege, James 

must show that his parole conditions required him to make statements that would subject 

him   to   a realistic threat of incrimination.      But the State granted James   transactional 

immunity for any statements he was required to make during treatment. 

    24  State, Dep't of Corr. v. Lundy, 188 P.3d 692, 696 (Alaska App. 2008).             

    25  Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995).

    26  See Bickford v. State, Dep't of Educ. and Early Dev., 155 P.3d 302, 313 (Alaska 2007)

(claims not raised   in   superior court appeal of administrative action are beyond scope of 
supreme court appeal). 

    27  Gyles, 901 P.2d at 1148. 

                                                   9                                              2291

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

                Because he received immunity from prosecution, James did not face any 

realistic   threat   of   incrimination.   He    therefore    has   not   established  that   his   parole 

conditions violated his privilege against self-incrimination. 

                James     has   not   shown    that  Judge    Michalski     abused    his 
                discretion when he denied the motion to consolidate. 

                James originally appealed from the Parole Board decision imposing his 

special conditions of parole release.   Several months later, after his parole was revoked, 

he filed a motion to consolidate, asking the superior court to allow him to raise issues 

related to the order revoking his parole. James now argues that the superior court abused 

its discretion by failing to recognize and grant his motion to consolidate as a motion to 
amend his points on appeal.28 

                We conclude that this argument is moot.  The only issue that James sought 

to raise in his appeal from the parole revocation was the ex post facto issue we have just 

resolved:  James claimed that his revocation was based on conditions of parole that were 

not authorized by the law in effect at the time of his crimes.   In support of his request for 

consolidation, James noted that the decision in his appeal from the imposition of his 

parole conditions   would moot this point in his appeal from his revocation.                    He was 

correct on this point.     James's appeal from the parole revocation is now moot because 

we have decided that the conditions imposed by the Parole Board were valid. 

                We also conclude that the superior court did not abuse its discretion when 

it denied James's motion to consolidate.           James appears to argue that the court should 

    28  See   Amos   v.   State,   46   P.3d  1044,   1045  (Alaska   2002)   (reviewing   for   abuse   of 

discretion this court's decision not to allow defendant to supplement a merit appeal with 
briefing on a sentence appeal). 

                                                   10                                                2291 

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

have recognized his motion as a motion to amend his points on appeal.                     He relies on 
cases reviewing a motion to amend the points in a criminal appeal29 and a motion to 

amend a civil complaint.30 

                But this case is distinguishable from the cases James relies upon.               This is 

not a case where a litigant seeks merely to add an additional argument regarding the 

validity of an administrative decision.  James was seeking to add a separate appeal from 

a separate administrative decision based on a separate record.  The superior court could 

conclude that this procedure would unreasonably complicate the appeal. 

                Miscellaneous issues 

                James   appears   to   be   arguing   that   his   revocation   violated   due   process 

because the Parole Board had no authority to impose special conditions on his parole. 

James   does   not   clarify   why   this   is   a   due   process   violation. This   argument   is   moot 

because, as noted above, the Parole Board did have   authority to impose the special 

conditions on James's mandatory parole. 

                James also argues that the superior court erred by failing to rule on some 

of his arguments.   He first argues that the State was bound by a contract theory based on 

a letter from DOC indicating that the Parole Board would apply 1984 law to his parole 

release.  This argument is adequately addressed in the foregoing decision.  James could 

not prevail even if the State was bound by this letter because the law in 1984 authorized 

the Parole Board to impose special conditions on his parole release. 

    29  Id . at 1045. 

    30  Hallam v. Holland Am. Line, Inc ., 27 P.3d 751, 755 (Alaska 2001). 

                                                   11                                                2291 

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

                 James similarly argues that the superior court failed to address his argument 

that he had a liberty interest related to his mandatory release.              But the superior court's 

ruling on this issue is implicit in its ruling on the due process issue James raised in that 

court.   The superior court assumed that James had a liberty interest at stake when the 

Parole   Board   set   his   parole   conditions   and   ruled   that   James   received   adequate   due 

process when he was allowed to submit comments during that procedure. 

                 Finally, James argues that the superior court failed to address his argument 

that the Parole Board lacked personal jurisdiction to impose conditions on his parole. 

The   answer   to   this   issue   is   also   implied   in   the   ex   post   facto   ruling   affirmed   in   the 

foregoing   opinion.       The   Parole   Board   had   statutory   authority   to   exercise   personal 

jurisdiction over James when he was released on mandatory parole, based on statutes in 

effect since 1960. 


                 We   consequently   AFFIRM   the   superior   court   decision   upholding   the 

decision of the Alaska Board of Parole. 

                                                     12                                                2291
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