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State v. Johnson (1/27/2017) ap-2534

State v. Johnson (1/27/2017) ap-2534

                                                                                    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@ akcourts.us  



                               IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                           



STATE  OF  ALASKA,  

                                                                                                                                                          

                                                                                                             Court of Appeals No. A-12166  

                                                                                                                                                                         

                                                         Appellant,                                       Trial Court No. 3KN-11-1432 CR  



                                           v.  

                                                                                                                           O  P  I  N  I  O  N  

                                                                                                                                                          

JOHNNY  B.  JOHNSON,  



                                                         Appellee.                                            No. 2534 - January 27, 2017  

                                                                                                                                                                 



                             Appeal from the District Court,  Third Judicial District, Kenai,  

                                                                                                                                                

                             Margaret L. Murphy, Judge.  

                                                                        



                             Appearances:  Timothy W. Terrell, Assistant Attorney General,  

                                                                                                                                            

                             Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                                                                                                                                           

                             Attorney  General,  Juneau,  for   the                                         Appellant.                 Johnny  B.  

                                                                                                                                                       

                             Johnson, in propria persona, Juneau, for the Appellee.  

                                                                                                                                              



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

                                                                                                                                           

                             Superior Court Judge.*  

                                                                             



                                          

                             Judge MANNHEIMER.  



                             While Johnny B. Johnson was incarcerated at the SpringCreek                                                                       Correctional  



Center in connection with another criminal case, he assaulted a corrections officer.                                                                                             For  



       *       Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                                  


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

                                                                                                                                                                                                                                                                       1  

this act,                             Johnson was charged with fourth-degree assault.                                                                                                                                                                                       While this fourth-degree                              



 assault charge was pending, Johnson was disciplined by the Department of Corrections                                                                                                                                                                                                                                                       



 for the assault:                                                  Johnson received 60 days of punitive segregation, and he lost 185 days'                                                                                                                                                                                                                             



good time credit.                                                             



                                                            The   district   court   ruled   that,   because   Johnson   received   this   prison  



discipline, it would be unlawful for the Department of Law to pursue its separate fourth-                                                                                                                                                                                                                                                                        



degree assault prosecution against Johnson.                                                                                                                                                     The district court                                                             concluded that the prison                                                            



discipline constituted a criminal punishment for purposes of the double jeopardy clause                                                                                                                                                                                                                                                                             



-   and   that   it   would   be   unconstitutional   for   the   State   to   impose   any   additional  



punishment on Johnson for the assault.                                                                                                                                           The court therefore dismissed the still-untried                                                                                                              



 fourth-degree assault charge.                                                                                                    The State then filed this appeal.                                                                                                                  



                                                            Forty-five years ago, the Alaska Supreme Court held that a defendant's loss                                                                                                                                                                                                                                         



of good time credit in a prison disciplinary proceeding does                                                                                                                                                                                                        not  constitute a punishment      



 for double jeopardy purposes.                                                                                                         See Alex v. State                                                             , 484 P.2d 677, 683-84 (Alaska 1971).                                                                                                                                        



                                                            Given the decision in                                                                          Alex , there is only one viable ground for upholding                                                                                                                                    



the district court's decision in Johnson's case:                                                                                                                                                               the argument that punitive segregation                                                                                       



 should be                                    viewed as a criminal punishment for jeopardy purposes - because, as the                                                                                                                                                                                                                                                            



label   "punitive"   implies,   this   type   of   segregation   is   imposed   as   a   punishment   for  



misconduct in prison (as opposed to administrative segregation).                                                                                                                                                                                                                             



                                                            Courts   from   other   jurisdictions   are   unanimous   in   holding that                                                                                                                                                                                                                   punitive  



 segregation   does   not   constitute   a   criminal   punishment   for   purposes   of   the   double  



                1             AS 11.41.230(a).                                                          



                                                                                                                                                                                       - 2 -                                                                                                                                                                                  2534
  


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

jeopardy clause, and that the imposition of punitive segregation by prison officials does                                                                                                                                                                                                          



                                                                                                                                                                                                                                                 2  

 not bar a subsequent criminal prosecution for the same misconduct.                                                                                                                                                                                    



                                                We likewise conclude that short-term punitive segregation, such as the 60- 

                                                                                                                                                                                                                                                                                                        



 day segregation imposed on Johnson in this case, does not constitute a punishment for  

                                                                                                                                                                                                                                                                                                        



 double jeopardy purposes - and that the State is therefore entitled to pursue its criminal  

                                                                                                                                                                                                                                                                                       



 prosecution against Johnson for fourth-degree assault.  

                                                                                                                                                                                                  



                                                The judgement of the district court is REVERSED.  

                                                                                                                                                                                                                                        



             2           State Courts:                                 People v. Frazier                                               , 895 P.2d 1077, 1079 (Colo. App. 1994);                                                                                                         State v.   



 Santiago, 689 A.2d 1108, 1110-11 (Conn. 1997), and                                                                                                                                   State v. Walker                                      , 646 A.2d 209 (Conn.                             

 App. 1994);                              Commonwealth v. Forte                                                               , 671 N.E.2d 1218, 1220 (Mass. 1996);                                                                                              State v. Lynch                                   ,  

 533 N.W.2d 905, 909-911 (Neb. 1995);                                                                                                  Carbonneau v. Warden, Nevada State Prison                                                                                                                   , 659   

 P.2d 875, 875-76 (Nev. 1983);                                                                              People v. Vasquez                                                 , 678 N.E.2d 482, 486-89 (N.Y. 1997);                                                                                                   

 Commonwealth v. Brooks                                                                   , 479 A.2d 589, 593 (Pa. App. 1984);                                                                                           State v. Beck                                , 545 N.W.2d       

 811, 816 (S.D. 1996);                                                       State v. Harrison                                             , unpublished, 1997 WL 593835, *1 (Tenn. Crim.                                                                                                       

 App. 1997);                              Ex Parte Hernandez                                                      , 953 S.W.2d 275, 282-85 (Tex. Crim. App. 1997).                                                                                                                           



             Federal Courts:                                      United States v.Hernandez-Fundora                                                                                               ,58 F.3d 802, 807 (2nd Cir. 1995);                                                         

 Patterson v. United States                                                               , 183 F.2d 327,328 (4thCir.1950);                                                                                    Mullican v.United States                                                             ,252   

 F.2d398,400 (5th Cir. 1958);                                                                       United States v. Rising                                                       , 867 F.2d                       1255, 1259 (10thCir.1989),                                                

 and   United   States v. Boomer                                                                            , 571 F.2d 543, 546 (10th Cir. 1978);                                                                                                Dayutis v. Powell                                                ,  

 unpublished, 1994 WL 258785, *6 (D. N.H. 1994);                                                                                                                               Gloria v. Miller                                        , 658 F.Supp. 229, 235                                          

 (W.D.  Okla. 1987).                                                



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