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Mantor v. State (9/25/2015) ap-2476

Mantor v. State (9/25/2015) ap-2476

                                                                            NOTICE
  

             The text of this opinion can be corrected before the opinion is published in the  

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             errors to the attention of the Clerk of the Appellate Courts:  



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                        IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



WALTER WAYNE MANTOR,  

                                                                                                  Court of Appeals No. A-11781  

                                                    Appellant,                                 Trial Court No. 3AN-89-8353 CR  



                                       v.  

                                                                                                                 O P I N I O N  

STATE OF ALASKA,  



                                                    Appellee.                                   No. 2476 - September 25, 2015  



                          Appeal                     

                                          from  the  Superior  Court,  Third  Judicial  District,  

                          Anchorage, Eric Smith, Judge.  



                          Appearances:  John N. Page III, Assistant Public Defender, and  

                                                      

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

                                                                                         

                          Elizabeth  T.  Burke,  Assistant  Attorney  General,  Office  of  

                                                                                                         

                          Criminal  Appeals,  Anchorage,  and  Michael  C.  Geraghty,  

                                                                                                                          

                          Attorney General, Juneau, for the Appellee.  



                          Before:          Mannheimer,  Chief  Judge,  and  Allard  and  Kossler,  

                                                                                  

                          Judges.  



                          Judge KOSSLER.  



                          Walter Wayne Mantor appeals the superior court's probation revocation                                                     



and imposition of his previously suspended sentence for first-degree sexual assault and                                                                          



first-degree assault. Mantor contends that the superior court should not have found him                                                                          



in   violation   of   his   probation   because   his   probation   had   already   expired   when   he  


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

committed the claimed violations.                                                 Mantor's contention rests on his assertion that his                                                              



probation continued even while he was in prison for parole violations.                                                                      



                               For the reasons that follow, we reject Mantor's assertion and affirm the                                                                                           



superior court's order.                



               Facts and proceedings     



                               In 1990, following a plea of no contest, Mantor was convicted of first-                                                                                        



                                                                                                          1  

degree sexual assault and first-degree assault.                                                                                                                                                      

                                                                                                              The superior court sentenced Mantor to  



                                                                                                                                                                                          

a composite sentence of 30 years' imprisonment, with 5 years suspended and "[f]ive  



                                                                                                                                                                   

years probation upon release."  The court also ordered that Mantor's probation was to  



                                                                                                                    

expire "five years from [his] date of release from incarceration."  



                                                                                                                                                                                            

                               In October of 2006, Mantor was released from prison on mandatory parole  



                                                            2  

                                     

and concurrent probation. 



                                                                                                                                                                                            

                               In  August  of  2007,  Mantor  was  returned  to  prison  on  a  parole  arrest  



                                                                                                                                                                                               

warrant.  Mantor's parole was subsequently revoked, and he remained in prison until  



                                                                                      

August of 2009, when he was again released.  



                                                                                                                                                                                     

                               Mantor was arrested and incarcerated for another alleged parole violation  



                                                                                                                                                                           

in September of 2010.  At the end of September, he was released from incarceration  



                                                                                                                                                                                          

pending a final hearing. At the final hearing, the Parole Board revoked Mantor's parole,  



                                                                                                               

but then returned him to parole without further incarceration.  



                                                                                                                                                                                               

                               Mantor was arrested for new crimes in January of 2013.  The State then  



                                                                                                                                                         

filed a petition to revoke Mantor's probation based on these new crimes.  



        1      Mantor v. State , 1991 WL 11259354 (Alaska App. Dec. 11, 1991) (unpublished)     



(describing Mantor's offenses).  



        2  

                                                                                                                                                                            

                See AS 33.20.040(c) ("the probationary period shall run concurrently with a period  

of mandatory parole").  



                                                                                               - 2 -                                                                                           2476
  


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                                                           Mantor filed a motion to dismiss this petition. He argued that his probation                                                                                                                                                                                                         



continued even when he was returned to prison for parole violations and that therefore                                                                                                                                                                                                                                                            



his probation term had expired in October of 2011 - that is, more than a year before he                                                                                                                                                                                                                                                                                         



committed the new crimes. The State argued in opposition that Mantor's probation was                                                                                                                                                                                                                                                                                     



tolled   while   he   was   incarcerated   on   the   parole   violations   and   thus   he   was   still   on  



probation when he committed the new crimes.                                                                                                                               



                                                           The superior court agreed with the State, reasoning that when Mantor was                                                                                                                                                                                                                                      



incarcerated he was not under probation supervision. The superior court stated, "[When                                                                                                                                                                                                                                                                 



a probationer] gets his parole revoked, he goes back to jail, and by operation of law, just                                                                                                                                                                                                                                                                               



like with probation revocation, that tolls the time."                                                                                                                                                                           The court then imposed all 5 years                                                                                           



of Mantor's suspended sentence.                                                                        



                               Why   we   affirm   the   superior   court's   ruling   that   Mantor   was   still   on  

                            probation when he committed the new crimes                                                                                                                                



                                                           On appeal, Mantor renews his claimthat                                                                                                                                      his probation continued during the                                                                                                    



time he was incarcerated for parole violations.                                                                                                                                                                       Mantor's argument is based on his                                                                       



interpretation of two earlier cases of this Court,                                                                                                                                                              O'Shea v. State                                                       , 683 P.2d 286 (Alaska                                            



App. 1984), and                                                          Gage v. State                                                , 702 P.2d 646 (Alaska App. 1985).                                                                                            



                                                           In  O'Shea v. State                                                           , this Court addressed whether the defendant's probation                                                                                                                                               



continued when he left Alaska without permission and was not under the supervision of                                                                                                                                                                                                                                                                                            



                                                                                              3  

probation authorities.                                                                                                                                                                                                                                                                                                                                                   

                                                                                                     We found persuasive the reasoning of the federal courts that was  



                                                                                                                                                                                                                                                                                                                                                                          

expressed in United States v. Workman: "a probationer can not obtain credit against [his  



                                                                                                                                                                                                                                                                                                                                                               

probation]  period  for  any  period  of  time  during  which  he  was  not,  in  fact,  under  



                                                                                                                                                                                                                                                                       4  

                                                                                                                                                                                                                                                                                                                                                            

probationary supervision by virtue of his own wrongful act."                                                                                                                                                                                                                  We noted that the federal  



               3              O'Shea, 683 P.2d at 287-89.  



               4             Id. at 289 (quoting United States v. Workman, 617 F.2d 48, 51 (4th Cir. 1980)).  



                                                                                                                                                                                    - 3 -                                                                                                                                                                               2476
  


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

courts have "consistently held that a period of probation ... is tolled when a probationer                                          



                                                          5  

is imprisoned for another crime."                                                                                                       

                                                             And using this same reasoning, we held in O'Shea's  



                                                                                                                                              

case  that  a  defendant's  probation  is  tolled  when  the  defendant  absconds  from  

supervision.6  



                                                                                                                                       

                        Similarly, in Gage v. State, we held that a defendant's period of probation  



                                                                                                                                   

is tolled during the period between the filing of a petition to revoke the defendant's  



                                                                                                                                                  7  

                                                                                                                                    

probation and the adjudication of that petition (if the probation violation is proved). 



                                                                                                                                                

                       Mantor argues that O'Shea and Gage are distinguishable because, in both  



                                                                                                                                               

of those cases, the courts affirmatively found that the defendants had violated their  



                                                                                                                                                    

probation.  In contrast, it was the Parole Board that made the findings of misconduct in  



                                                                                                                                          

Mantor's case. Mantor contends that unless the court finds that a defendant has violated  



                                                                                                         

his probation, the defendant's probation should continue to run.  



                                                                                                                                           

                       But the chief concern of O'Shea and Gage is that probationers not receive  



                                                                                                                                                    

credit for periods of time when they are not under probation supervision.  Probation is,  



                                                                                                                                                     

by  definition,  a  period  of  supervised  release  -  a  time  when  "the  court  allows  a  



                                                                                                                                  8  

                                                                                                                     

defendant to remain at conditional liberty in lieu of serving time in prison."                                                                   

                                                                                                                                     When that  



                                                                                                                                             

supervision is interrupted because of the defendant's misconduct, the defendant's period  



                                                                                                                                            

of probation tolls.  This principle applies regardless of whether the interruption occurs  



                                                                                                                               

because  the  defendant  absconds  from  supervision  or  because  the  defendant  is  



                                                                                                                                                  

incarcerated for misconduct.   And in cases where the defendant is incarcerated for  



      5     Id.  



      6     Id.  



      7     Gage, 702 P.2d at 647-48.  



      8     Edwards v. State, 34 P.3d 962, 968 (Alaska App. 2001).  



                                                                        - 4 -                                                                  2476
  


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

misconduct,   it   does   not   matter  whether   the   misconduct   consists   of   new   crimes,   or  



violations of conditions of probation, or violations of conditions of parole.                                                                                                             



                                     We therefore hold that Mantor's probation was tolled during the time he                                                                                                                           



spent in prison in connection with his violations of his conditions of parole.                                                                                                               



                                     (We note that we have consistently referred to the  Gage rule as applying  



                                                                                                                                               9  

only when the allegations of misconduct are proved.                                                                                                                                                                          

                                                                                                                                                    As we suggested in Gage, equity  



                                                                                                              

might require a different result in cases where the Parole Board or the court later finds  



                                                                                                                                         10 

                                                                                                                   

that the allegations of misconduct are not proved.                                                                                          )  



                   Conclusion  



                                                                                                                                             

                                     The judgment of the superior court is AFFIRMED.  



         9        See Herrin v. State                               , 93 P.3d 477, 478 (Alaska App. 2004); Hill v. State, 22 P.3d 24,  



29 n.8 (Alaska App. 2001); Harris v. State, 980 P.2d 482, 484 (Alaska App. 1999).  



          10       Gage, 702 P.2d at 647.  



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