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State v. Walker (8/3/2012) ap-2367

State v. Walker (8/3/2012) ap-2367

                                               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
 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



STATE OF ALASKA, 

                                                             Court of Appeals No. A-10844 

                                Appellant,                  Trial Court No. 4BE-95-1200 Cr 



                        v. 

                                                                    O    P  I  N  I  O  N 

STANLEY M. WALKER, 



                                Appellee.                     No. 2367    -   August 3, 2012 



                Appeal from the Superior Court, Fourth Judicial District, Bethel, 

                Marvin C. Hamilton III, Judge. 



                Appearances:      Chris    Carpeneti,   Assistant   District  Attorney, 

                Bethel, and   John J. Burns, Attorney General, Juneau, for the 

                Appellant.   Tracey Wollenberg, Assistant Public Defender, and 

                Quinlan Steiner, Public Defender, Anchorage, for the Appellee. 



                Before:    Coats,    Chief   Judge,  and   Mannheimer      and  Bolger, 

                Judges. 



                MANNHEIMER, Judge. 



                This   appeal   arises   from   litigation   in   the   superior   court   on   the   issue   of 



whether the defendant should receive credit against his sentence for various periods that 



he spent in residential treatment.  For the reasons explained here, we must send this case 



back to the superior court because of obvious errors in the superior court's ruling. 


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

        The history of Walker's case from the time of his original sentencing until 

       the time, years later, when he refused further probation and was ordered 

       to serve the remainder of his suspended term of imprisonment 



               In 1994, in superior court file number 4BE-94-279 Cr, Stanley M. Walker 



was convicted of second-degree sexual abuse of a minor.          He received a sentence of 



4 years' imprisonment, but with 3 years, 10 months suspended (i.e., only 2 months to 



serve).  In 1995, while Walker was on probation in the 1994 case, he again committed 



second-degree sexual abuse of a minor - giving rise to his conviction in the present 



case, superior court file number 4BE-95-1200 Cr. 



               In July 1996, the superior court sentenced Walker for the 1995 offense and 



for the violation of probation in the 1994 case.  For the 1995 offense, the superior court 



imposed a sentence of 8 years' imprisonment with 6 years suspended.  For the probation 



violation in the 1994 case, the court imposed 2 years of Walker's previously suspended 



jail time (consecutive to the just-imposed sentence in the 1995 case). 



               Thus,   at  the  conclusion   of  this  1996  sentencing   hearing,  Walker's 



composite sentence for the 1994 and 1995 offenses was 4 years and 2 months to serve, 



with an additional 7 years, 10 months suspended. Of this suspended jail time, 1 year and 



10 months remained from Walker's 1994 sentence, while 6 years was imposed as part 



of his 1995 sentence. 



               Starting in 2000, Walker repeatedly violated the conditions of his probation. 



As a result of these violations, he little by little served a large portion of his suspended 



imprisonment.    Finally, in September 2009, Walker rejected further probation, and the 



superior court imposed the remaining 26 months of his suspended imprisonment. 



                                            - 2 -                                        2367
 


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

        The litigation on the issue of whether Walker should receive credit against 

        his sentence for the time he spent in residential treatment 



                The imposition of the last 26 months of Walker's sentence seemingly ended 



the sentencing litigation in Walker's case.         However, about eight months later, in May 



2010, Walker filed a motion asking the superior court to give him credit against this 26- 



month sentence for five periods of time that Walker had spent in various residential 



treatment facilities during the years he was on probation.            According to Walker, these 



five periods of residential treatment totaled nearly one year.             In chronological order, 



these five periods were: 



                (1) the 10 days that Walker spent at the Ralph Perdue Center in Fairbanks 



        from August 8, 2000 through August 18, 2000; 



                (2) the 120 days that Walker spent at the NorthStar Center in Fairbanks 



        from April 30, 2001 through August 28, 2001; 



                (3) the 105 days that Walker spent at the NorthStar Center from October 



        15, 2001 through January 28, 2002; 



                (4) the 42 days that Walker spent at the Hudson Lake Healing Camp near 



        Copper Center from July 22, 2002 through September 2, 2002; and 



                (5) the 67 days that Walker spent at the NorthStar Center from June 9, 2005 



        through August 15, 2005. 



                In his motion, Walker mistakenly told the superior court that these five 



periods totaled 346 days.      In fact, they total 344 days. 



                The State opposed Walker's request - not based on Walker's calculations, 



but rather based on this Court's decision in Triplett v. State, 199 P.3d 1179 (Alaska App. 



2008).    In  Triplett,   we   held   that   defendants   are   not   entitled   to   credit   against   their 



                                                 - 3 -                                            2367
 


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

sentences for time they spend in a residential facility following their sentencing, as a 



condition of probation.  Id. at 1181. 



                 Walker filed a reply in which he argued that the Triplett decision was not 



controlling authority under the facts of his case.  According to Walker, the defendant in 



 Triplett was ordered into residential treatment by the Parole Board as a condition of 



parole , and Walker contended that the decision in Triplett hinged on this fact.                 Walker 



declared   that   his   case   was   materially   different   from   the   facts   of  Triplett  because   he 



(Walker) was ordered into residence at the various treatment programs as a condition of 



his probation. 



                 Walker's characterization of Triplett was incorrect. 



                 The  Triplett opinion states that the Parole Board released Triplett "[on] 



discretionary parole ... to the Salvation Army Adult Rehabilitation Program."  199 P.3d 



at 1180.     However, it appears (from the briefs filed in  Triplett) that when the Parole 



Board released Triplett on parole, Triplett may have begun serving his probation at the 

same time (because he was released from incarceration). 1                  In any event, the  Triplett 



opinion explains that Triplett was sent to the Salvation Army treatment program because 



"[t]he conditions of Triplett's probation  required him to complete a substance abuse 



program at the direction of his probation officer, including residential treatment of up to 



one year."  Id. at 1179 (emphasis added).            Seemingly, then, Triplett (like Walker) was 



sent to residential treatment as a condition of his probation. 



                 But more importantly, our decision in  Triplett did not hinge on whether 



Triplett was on probation or parole.  It is true that the lower court based its ruling on this 



distinction.    See  id. at 1180.    But this Court's decision was based on the wording of 



AS     12.55.055(c),     which    states  that  defendants     are  entitled   to  credit  against   their 



     1   See the three briefs filed in Court of Appeals File No. 9968. 



                                                  - 4 -                                               2367 


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

sentences "for time spent in custodypending trial, sentencing, or appeal ."  Focusing on 



this   italicized   language,   we   held   that   Triplett   was   not   entitled   to   credit   against   his 



sentence for the time spent in residential treatment because Triplett had already been 



sentenced, and because he had no appeal pending:                 "Triplett did not spend his time in 



residential treatment while 'pending trial, sentencing, or appeal,' so he did not qualify 



for credit under AS 12.55.025(c) for the time he served in treatment."  Triplett, 199 P.3d 



at 1181. 



                 Despite these flaws in Walker's interpretation of Triplett, the superior court 



granted Walker's motion and gave him credit against his sentence for all of the 346 days 



he claimed.  Although the superior court did not cite Triplett in its written decision, the 



court repeatedly stated, with respect to each of the five periods of residential treatment, 



that Walker resided in these facilities "as a condition of probation".  From this, we infer 



that the superior court was persuaded by, and endorsed, Walker's mistaken theory that 



the Triplett decision only applied to defendants who are sent to residential treatment as 



a condition of parole, and that Triplett did not apply to defendants who spend time in 



residential treatment as a condition of probation. 



                 Following the superior court's decision to grant Walker the 346 days of 



credit, the State initiated this appeal. 



        The issues raised in this appeal 



                 Ostensibly, this appeal raises the same issue that was raised in the superior 



court:   whether Walker is entitled to credit against his sentence for the five periods he 



spent in residential treatment.        But as we are about to explain, this question appears to 



be largely moot.  The record shows that, of the 344 days that Walker claims, Walker had 



                                                   - 5 -                                              2367
 


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

already been granted credit against his sentence for 267 days of those days before the 



superior court issued its decision (i.e., the decision challenged in this appeal). 



                 This appeal also raises a substantial issue regarding appellate procedure - 



in particular, the scope of an appellee's   ability to argue for affirmance of the lower 



court's decision on grounds that the lower court did not rely on. 



                 We turn, then, to the issues presented in the parties' briefs. 



                 The State's brief to this Court is fairly straightforward and short.  The State 



argues   that  Triplett   controls   all   post-sentencing   situations,   regardless   of   whether   a 



defendant is on probation or parole, and thus the superior court violated Triplett when 



the court awarded any sentence credit to Walker. 



                 In Walker's responding brief, his appellate attorney does not defend the 



superior court's ruling - the ruling, based on Walker's trial attorney's argument, that 



Triplett applies only to residential treatment that is required as a condition of parole, and 



not to treatment that is required as a condition of probation.  Instead, Walker's appellate 



attorney   acknowledges   that   the   superior   court's   ruling   in   this   case   was   based   on   a 



misunderstanding of Triplett.  Walker's attorney concedes that the ruling in Triplett did 



not hinge on the defendant's status as a probationer or a parolee - that, instead, we held 



that   the   defendant   "was   not   entitled   to   credit   against   his   ...   sentence   [because   the 



residential   treatment]   was   not   'pending   trial,   sentencing,   or   appeal'   as   required   by 



AS 12.55.055(c)." 



                 Nevertheless, Walker's appellate attorney argues that the superior court 



reached the correct result, albeit for the wrong reason. 



                 First,   Walker   presents   a   new factual     argument:      Walker   now   contends 



(contrary to the position he took in the superior court) that, with respect to the first four 



of the five periods of residential treatment at issue in this case, he did not serve this time 



in residential treatment as a condition of probation.  Rather, Walker now asserts, he was 



                                                    - 6 -                                               2367
 


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

sent to these residential facilities pursuant to conditions of bail - conditions of release 



imposed   on   Walker   by   the   superior   court   while   the   various   petitions   to   revoke   his 



probation were pending. 



                 Based on his contention that his first four periods of residential treatment 



were the result of his pre-disposition bail conditions, Walker argues that he is entitled to 



credit against his sentence for this residential treatment, even under  Triplett.                  Walker 



notes that our decision in Triplett was premised on AS 12.55.025(c), which states that 



defendants shall receive credit for the time they spend in custody pending sentencing. 



Walker argues that this credit-for-time-served rule applies not only to a defendant's 



original     sentencing,    but   also   to  any   subsequent     sentencings     that   occur   when     the 



defendant's probation is revoked.  Thus, according to Walker, even under Triplett, he is 



entitled to credit for the total of 277 days that he spent in residential treatment during the 



first four periods at issue in this case. 



                 With respect to the fifth period of residential treatment (the 67 days that 



Walker spent at the NorthStar Center in June, July, and August 2005), Walker presents 



a new legal argument.  Walker concedes that he was sent to the NorthStar Center in the 



summer of 2005 as a condition of his probation - and that therefore, under Triplett, he 



would not be entitled to credit against his sentence.  Nevertheless, Walker argues that he 



should   receive   these   67   days   of   credit   against   his   sentence   -   because   (he   asserts) 



Triplett was wrongly decided. 



                 Finally, Walker argues that, regardless of the merits of the foregoing two 



arguments, it would be a violation of the constitutional guarantees of due process and 



equal protection, as well as a violation of the constitutional protection against double 



jeopardy,   if   Walker   were   denied   credit   against   his   sentence   for   the   five   periods   of 



residential treatment. 



                                                   - 7 -                                               2367
 


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

                In sum, Walker wishes to litigate this appeal on theories that are completely 



different - both factually and legally - from the factual and legal considerations that 



the superior court relied on when it made its ruling. 



        Our examination of the record, and why it leads us to conclude that the 

        superior court's order must be vacated - because it appears that Walker 

        had already received credit against his sentence for most of the 344 days 

        at issue in this case 



                It is well established that an appellee - i.e., a party defending the lower 



court's judgement - "may seek to defend [the] judgment on any basis established by the 



record, whether or not it was relied on by the trial court or even raised before the trial 



court."  Demoski v. New , 737 P.2d 780, 786 (Alaska 1987); see also Millman v. State , 



841 P.2d 190, 195 (Alaska App. 1992). 



                However, when an appellee argues that the lower court's ruling should be 



upheld on an alternative ground, this alternative justification for the lower court's ruling 



must be clearly revealed by the record of the lower court's proceedings.  In other words, 



the appellee's argument must rest on undisputed facts.             See Koyukuk River Tribal Task 



Force on Moose Management v. Rue , 63 P.3d 1019, 1021 n. 8 (Alaska 2003); Linehan 



v. State, 224 P.3d 126, 140 (Alaska App. 2010). 



                Accordingly, this Court's first task (when evaluating the claims raised in 



Walker's   brief)   is   to   examine   the   record   to   see   whether,   as   Walker   contends,   it   is 



undisputed that his first four periods of residential treatment were imposed as conditions 



of bail release rather than as conditions of his probation. 



                With regard to the first period of residential treatment - the 10 days that 



Walker spent at the Ralph Perdue Center from August 8, 2000 through August 18, 2000 



- the record supports Walker's assertion that he was sent to this residential treatment 



                                                  - 8 -                                             2367
 


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

as   a   condition   of   bail   release   pending   the   court's   resolution   of   a   petition   to   revoke 



Walker's probation. 



                 Likewise,      with   regard    to  the  second    and    third  periods    of  residential 



treatment - the 120 days that Walker spent at the NorthStar Center from April 30, 2001 



through August 28, 2001, and the 105 days that Walker spent at the NorthStar Center 



from October 15, 2001 through January 28, 2002 - the record again supports Walker's 



assertion that he was sent to the NorthStar Center (twice) as a condition of bail release 



pending the court's resolution of petitions to revoke Walker's probation. 



                 However,       the  record    also   shows    that  Walker     has   apparently     already 



received credit against his sentence for these second and third periods of residential 



treatment - a combined credit of 225 days for Walker's residence at the NorthStar 



Center. 



                 One   of   the   transcripts   prepared   for   this   appeal   is   the   transcription   of   a 



"status hearing" held in Walker's case in front of Superior Court Judge Ralph Beistline 



on January 29, 2002.   At that hearing, Walker's attorney announced that he and the State 



had   reached   an   agreement   to   resolve   the   pending   revocation   petition.         Under   this 



agreement,   Walker        would     admit   that   he  violated    his  probation,    and   he   would    be 



sentenced to "time served". 



                 To   clarify   the   meaning   of   "time   served",   the   defense   attorney   added, 



"[Walker] has   been   in   custody   since   [last] April 4th."          In   other   words, the   defense 



attorney   told   Judge   Beistline   that   Walker   had   been   in   continuous   custody   for   the 



preceding ten months - a time period that covered all 225 days of Walker's residence 



at the NorthStar Center.  (Walker's first 120 days at the NorthStar Center began on April 



30th.) 



                 Judge     Beistline   adopted     the  proposed      settlement   of   the   case,   and  he 



accordingly sentenced Walker to "time served".  With the parties' agreement, the judge 



                                                    - 9 -                                               2367
 


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

applied this time to the suspended imprisonment in Walker's 1994 case, so that Walker 



still had the original 6 years of suspended time in his 1995 case. 



                Thus, the record shows that Judge Beistline already gave Walker credit 



against his sentence for the second and third periods of residential treatment at issue in 



this appeal:   the 120 days that Walker spent at the NorthStar Center from April 30, 2001 



through August 28, 2001, and the 105 days that Walker spent at the NorthStar Center 



from October 15, 2001 through January 28, 2002.   (We note that Walker's latter period 



of residence at the NorthStar Center ended the day before the disposition hearing in front 



of Judge Beistline.) 



                Turning to Walker's fourth period of residential treatment - the 42 days 



that he spent at the Hudson Lake Healing Camp from July 22, 2002 through September 



2, 2002 - the record once more supports Walker's assertion that he was sent to Hudson 



Lake as a condition of bail release pending the court's resolution of petitions to revoke 



Walker's probation. 



                However, the record also again shows that Walker already received credit 



against his sentence for these 42 days. 



                The revocation petitions that were pending against Walker when he was 



sent to Hudson Lake in the summer of 2002 were ultimately resolved at a disposition 



hearing held on April 15, 2003 in front of Superior Court Judge Dale Curda (who was 



also Walker's original sentencing judge). 



                During this disposition hearing, Judge Curda asked the parties how much 



time   remained   of   the   original   3   years,   10   months'   suspended   jail   time   that   Walker 



received in the 1994 case. The judge suggested that Walker's remaining suspended time 



in the 1994 case should be at least 3 years - apparently forgetting that he, himself, 



imposed 2 of those years when, in July 1996, he sentenced Walker for the 1995 offense 



and revoked his probation in the 1994 case. 



                                                -  10 -                                           2367
 


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

                Walker's probation officer replied that she did not know exactly how much 



suspended   time   remained   in   the   1994   case,   because   Judge   Beistline   had   sentenced 



Walker to "time served" rather than to a precise number of months or years.  However, 



the probation officer told Judge Curda that Walker must have less than 3 years remaining 



on his 1994 sentence - because "Mr. Walker has done a substantial amount of time at 



the NorthStar Center, which he was [already] given credit for[.]"  The probation officer 



further explained that, following the disposition hearing in front of Judge Beistline on 



January 29, 2002, "Mr. Walker was released from NorthStar Center [and] given credit 



for time served [there] in the '94 case." 



                The probation officer then described how Walker was arrested on July 12, 



2002, for violating his probation by consuming alcohol - and that, while the petition 



to revoke Walker's probation was pending, he was sent to the Hudson Lake Healing 



Camp from late July until early September. 



                A few minutes later in this hearing, Walker's attorney asked Judge Curda 



to sentence Walker to "time served".           The defense attorney told the judge that this was 



"not an insignificant amount of time" - because Walker had spent time at the NorthStar 



Center, because Walker had already "served 41 [sic : 42] days [of] in-patient treatment 



[at Hudson Lake]", and because Walker had been incarcerated from September 29, 2002 



until January 17, 2003. 



                Ultimately,     Judge    Curda    accepted    the   defense    attorney's   sentencing 



recommendation:        he sentenced Walker to "time served" in the 1994 case.              Like Judge 



Beistline, Judge Curda decided to leave Walker with all 6 years of suspended jail time 



in   his   1995   case,   to   act   as   a   "big   deterrent". To   achieve   this   goal,   Judge   Curda 



announced that he would not impose any of Walker's suspended jail time in the 1995 



case, but only in the 1994 case.        Thus, Walker's sentence of "time served" was applied 



against Walker's then-remaining suspended jail time in the 1994 case. 



                                                 -  11 -                                           2367
 


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

                Judge Curda remarked   that he did not think Walker had "any appellate 



issues" arising from the sentencing proceeding because "[the court had] imposed ... what 



[Walker's attorney] asked for ... , time served."           The judge then added, "And it sounds 



to me like ['time served' is] a significant amount of time.                 I   would   say ... probably 



upward [of] six, at least six months." 



                As we explained above, Walker's attorney told Judge Curda that Walker 



had been incarcerated from September 29, 2002 to January 17, 2003.                     In other words, 



Walker spent less than 4 months in jail in connection with the probation revocation 



proceedings.  Thus, when Judge Curda stated that Walker's "time served" amounted to 



"at least six months", the judge must have been adding in the 42 days that Walker spent 



in residential treatment at Hudson Lake - just as Walker's attorney asked him to do. 



                Thus, again, the record shows that Walker already received credit against 



his sentence for the fourth period of residential treatment at issue in this appeal - the 



time that Walker spent at the Hudson Lake Healing Camp. 



                With   respect   to   the   fifth   period   of   residential   treatment   at   issue   in   this 



appeal -   the 67 days that Walker spent at the NorthStar Center from June 9, 2005 



through August 15, 2005 - Walker concedes that this period of in-patient treatment was 



imposed as a condition of Walker's probation, and not as a bail condition. 



                To sum up this discussion: 



                Walker   claims   that,   of   the   combined   344   days   he   spent   in   residential 



treatment, 277 of these days (in other words, all but the 67 days that Walker spent in 



residence   at   the   NorthStar   Center   in   the   summer   of   2005)   were   the   result   of   bail 



conditions, not conditions of probation.   The record bears this out.  However, the record 



also shows that, with the possible exception of the 10 days that Walker spent at the Ralph 



Perdue Center in August 2000, Walker has already received credit against his sentence 



(his sentence in the 1994 case) for all of these days. 



                                                 -  12 -                                            2367
 


----------------------- Page 13-----------------------

                 This means that the ruling at issue in this appeal - the superior court's 



order giving Walker additional credit against his sentence for these same days of in- 



patient treatment - is illegal. 



                 When      a  defendant     (like  Walker)     receives    consecutive     sentences,    the 



defendant   is   entitled   to   only   a   single   day   of   credit   against   the  aggregate  of   their 



sentences for each day spent in prison or in a residential treatment program with the 



attributes of incarceration.  Endell v. Johnson , 738 P.2d 769, 771 (Alaska App. 1987). 



Since Walker has apparently already received credit against his 1994 sentence for at least 



267 of the days of in-patient treatment at issue in this case, the superior court had no 



authority to give Walker a second credit against his 1995 sentence for these same days. 



                 We   wish   to   emphasize   that   our   conclusion   must,   of   necessity,   remain 



somewhat tentative.        As we have explained, these issues of fact were never litigated in 



the   superior   court,   and   the   superior   court   made   no   findings   regarding   them.      Our 



knowledge of these matters is confined to what we can read in the appellate record. 



                 The transcripts of the various disposition hearings show that the superior 



court ordered that Walker receive credit against his 1994 sentence for these 267 days of 



residential treatment (specifically, the 120 days that Walker spent at the NorthStar Center 



from   April   through   August   2001,   the   additional   105   days   that   Walker   spent   at   the 



NorthStar Center from October 2001 through January 2002, and the 42 days that Walker 



spent at the Hudson Lake Healing Camp from July through September 2002). 



                 It is conceivable that the Department of Corrections never actually gave 



Walker credit against his 1994 sentence for all of these days.                   However, the precise 



question before us is not whether the Department of Corrections ultimately gave Walker 



the 267 days of credit that the superior court ordered.              Rather, the question is whether 



Walker   has   presented   us   with   an   undisputed   independent   ground   for   affirming   the 



                                                   -  13 -                                             2367
 


----------------------- Page 14-----------------------

superior court order that is currently in front of us - the order giving Walker additional 



credit against his sentence for these same days. 



                Rather than providing an independent ground to affirm the superior court's 



order, our research into the superior court proceedings has revealed that there is good 



reason to believe that the superior court order in front of us is, in main part, illegal. 



        Why Walker is not entitled to argue for the first time on appeal that our 

        decision in Triplett should be overruled 



                As we explained earlier, Walker concedes that his fifth period of residential 



treatment (the 67 days that he spent at the NorthStar Center from June 9, 2005 through 



August 15, 2005) was imposed as a condition of his probation - and that, under Triplett, 



he is not entitled to credit against his sentence for these 67 days.  Nevertheless, Walker 



asks us to affirm the superior court's decision awarding him credit for these 67 days. 



Walker argues that this is the correct result because Triplett should be overruled - either 



because it was wrongly decided (as a matter of statutory construction) or, if correctly 



decided, because it yields results that are unconstitutional. 



                Walker     never   attacked   the   validity   or   constitutionality   of   the Triplett 



decision in the superior court.       Rather, Walker raises these claims for the first time on 



appeal. 



                Under Alaska law, an appellee can seek affirmance of the lower court's 



decision on any ground revealed by the record.             But we do not think this rule can be 



applied as broadly as Walker now wishes. 



                In our prior decisions, we have allowed appellees to advance alternative 



grounds   for   affirmance   when,   given   the   undisputed   facts,     there   was   a   clear   legal 



justification for the result reached by the lower court, even if the lower court failed to 



                                                -  14 -                                           2367
 


----------------------- Page 15-----------------------

articulate or identify this legal justification - or even if the lower court expressly (and 

mistakenly) rejected this legal justification for its action. 2           But Walker seeks to justify 



the lower court's decision by arguing that, given the undisputed facts of this case, the 



lower court's decision would be correct if the law were different - if our decision in 



Triplett,    instead   of   being   controlling     authority,   were    to  be  overruled     or  declared 



unconstitutional. 



                 We are not prepared to extend such latitude to an appellee.                 First, such a 



broad interpretation of the rule would give appellees an unfettered opportunity to inject 



new constitutional controversies into a case for the first time on appeal. 



                 Second, it is a rare case where it is "clear" that a prior court decision should 



be overruled, or where it is "clear" that a court decision or statute is unconstitutional, 



either on its face or as applied.  Walker's argument ultimately hinges, not on an assertion 



that the record clearly reveals an alternative justification for upholding the result reached 



by   the   lower   court,   but   rather   on   the   assertion   that   there   are   colorable   reasons   for 



changing the law so that the lower court's decision becomes justifiable. 



                 For these reasons, we conclude that Walker may not attack our decision in 



Triplett for the first time on appeal.  Because of this, and because Walker concedes that, 



under Triplett, the superior court was wrong to give him credit against his sentence for 



the 67 days he spent at the NorthStar Center from June 9, 2005 through August 15, 2005, 



we reverse the superior court's decision regarding these 67 days. 



    2   See Millman v. State , 841 P.2d 190, 195 (Alaska App. 1992); Russell v. Anchorage , 



626 P.2d 586, 588 n. 4 (Alaska App. 1981) (grounds not relied on by the lower court); Torrey 

v. Hamilton , 872 P.2d 186, 188 (Alaska 1994); Ransom v. Haner , 362 P.2d 282, 285 (Alaska 

1961) (grounds explicitly rejected by the lower court). 



                                                   -  15 -                                               2367 


----------------------- Page 16-----------------------

       Conclusion 



              The order of the superior court is VACATED.  We remand Walker's case 



to the superior court so that, if Walker wishes, he can reformulate and renew his motion 



for credit against his 1995 sentence. 



              We do not retain jurisdiction of this case. 



                                            -  16 -                                      2367
 

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