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Medina v. State (3/2/2018) ap-2590

Medina v. State (3/2/2018) ap-2590

                                                                          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  



EDWIN MONTAL MEDINA,  

                                                                                    Court of Appeals Nos. A-12520 & A-12529  

                                                  Appellant,                             Trial Court Nos. 3AN-13-6960 CR &  

                                                                                                          3AN-10-11426 CR  

                                      v.  

                                                                                                               O P I N I O N  

STATE OF ALASKA,  



                                                  Appellee.                                       No. 2590 - March 2, 2018  



                         Appeal  from  the   Superior  Court,  Third  Judicial  District,  

                                                            

                         Anchorage, Paul E. Olson, Judge.  



                         Appearances:   Jaffer K. Khimani, Assistant Public Advocate,  

                                                     

                         and  Richard  Allen,  Public  Advocate,  Anchorage,  for  the  

                         Appellant.  Patrick J. McKay, Jr., Assistant District Attorney,  

                                                                                  

                         Anchorage, and Craig W. Richards, Attorney General, Juneau,  

                                                                          

                         for the Appellee.  



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

                                                                              

                         Judges.  



                         Judge WOLLENBERG.  



                         Edwin Montal Medina was ordered into residential treatment while he                                                                   



awaited the adjudication of a petition to revoke his probation.                                                       Medina's probation was                 



ultimately revoked, but the court released him back to probation without imposing a                                                            



sentence of imprisonment. The question presented in this appeal is whether Medina was                                                                        


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

later entitled to seek credit for the time he spent in residential treatment after the court  



sentenced him to a term of imprisonment in connection with a subsequent probation  

                                                                                                                     



revocation in the same case. For the reasons explained in this opinion, we conclude that  

                                                                                                                               



the answer is yes.  

                             



                     Because we conclude that the answer is yes, we direct the superior court to  

                                                                                                                                 



reach the merits of Medina's request.  That is, we direct the court to evaluate Medina's  

                                                                                                                      



request under AS 12.55.027, the statute that sets out the criteria governing the award of  

                                                                                                                                 



jail credit for time spent in treatment.  

                                                           



           Underlying facts and proceedings  

                                            



                     In 2014, Edwin Montal Medina was on supervised probation in two cases.  

                                                                                                                                     



After the State alleged that Medina violated his probation in both cases, the superior  

                                                                                                                       



court  ordered  Medina  to  enter  residential  treatment  as  a  condition  of  bail  pending  

                                                                                                                       



resolution of the petitions to revoke his probation. Medina entered residential treatment  

                                                                                                                      



at the Salvation Army Adult Rehabilitation Center.  

                                                                                



                     Medina  resided  at  the  Salvation  Army  program  for  184  days,  and  he  

                                                                                                                                



successfully completed the program.  At a subsequent hearing, the parties announced a  

                                                                                                                                   



plea agreement: because Medina had successfully completed treatment, he would admit  

                                                                                                                            



the allegations, no term of incarceration would be imposed, and Medina would return to  

                                                                                                                                 



probation.  The court accepted the agreement of the parties, and the court resolved the  

                                                                                                                                



petitions to revoke probation by returning Medina to probation without imposing any  

                                                                                                                               



portion of his suspended sentence.  Medina did not, at that time, ask the court for credit  

                                                                                                                            



for the time he had spent in residential treatment.  

                                                                             



                     In 2015, the State again alleged that Medina had violated his probation.  

                                                                                                                                     



Ultimately, the parties reached a resolution calling for the imposition of a composite 150  

                                                                                                                               



days of Medina's previously suspended sentences.  

                                                                               



                                                              - 2 -                                                          2590
  


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

                                        Medina's attorney then moved for credit against this composite term of                                                                                                                                                



incarceration for the time Medina had spent at the Salvation Army residential treatment                                                                                                                                                  



program in 2014.                                      In support of this request, Medina's attorney relied on AS 12.55.027,                                                                                                          



the statute governing credit for time spent in treatment.                                                                               



                                        The               State                 opposed                        the             request,                      relying                     on           a         different                       statute,  



AS 12.55.025(c).                                       Under AS 12.55.025(c), a defendant is entitled to "credit for time                                                                                                                              



spent in custody pending trial, sentencing, or appeal, if the detention was in connection                                                                                                                                           



with the offense for which sentence was imposed[.]"                                                                                                                  The State argued that the time                                                    



Medina spent in treatment in 2014 was not served "in connection" with his later 2015                                                                                                                                                                  



                                                                                                                                                                                                      1  

probation violations, and thus, AS 12.55.025(c) precluded credit.                                                                                                                                        



                                                                                                                                                                               

                                        The superior court denied Medina's request for credit.  The court did not  



                                                                                                                                                                                                                                            

reach the question of whether the conditions of Medina's stay in the treatment program  



                                                                                                                                                                                                                                        

entitled  him to  credit  under  AS  12.55.027.                                                                                               Rather,  adopting  the  State's  argument  



                                                                                                                                                                                                                                               

regarding AS 12.55.025(c), the court ruled as a legal matter that Medina was not entitled  



                                                                                                                                                                                                                                                          

to the requested credit because the time he had spent at the Salvation Army program was  



                                                                                                                                                                                                                                        

served in connection with his earlier 2014 probation violations, not the 2015 probation  



                                                                                                                                                                                                                                                    

violations for which he was being sentenced.  The court concluded that granting credit  



                                                                                                                                                                                                                                                           

for Medina's earlier treatment would effectively give Medina a reserve of credit for use  



                                                                                                                                                                                                                             

against any sentence later imposed for a subsequent probation violation.  



                                                                                                                                                  

                                        Medina appeals the court's ruling.  



           1        The State also initially argued that Medina's time in residential treatment was not   



served "pending trial, sentencing, or appeal," as required by AS 12.55.025(c).                                                                                                                                                           The State  

subsequently acknowledged that Medina's cases were in fact pending sentencing -                                                                                                                                                                            i.e.,  

pending resolution of the 2014 petitions to revoke                                                                                                      probation - when he resided at the   

Salvation Army program. The State therefore abandoned this claim.                                                                                                                                 Cf. Triplett v. State, 199  

P.3d 1179, 1181 (Alaska App. 2008) (denying credit, under AS 12.55.025(c), for time spent   

in residential treatment when that time was not served "pending trial, sentencing, or appeal").  



                                                                                                                            -  3 -                                                                                                                      2590
  


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

                 A note on the interplay between AS 12.55.025(c) and AS 12.55.027                                                                                    



                                  Alaska Statute 12.55.025(c) entitles defendants to "credit for time spent in                                                                                                            



custody pending trial, sentencing, or appeal, if the detention was in connection with the                                                                                                                              



offense for which sentence was imposed[.]"                                                                         Relying on this statute, the superior court                                                    



denied Medina's request for credit against his sentence for time previously spent in                                                                                                                                     



residential treatment.   



                                  As   an   initial   matter,   we   question   whether   AS   12.55.025(c)   applies   to  



Medina's request for credit.                                              In a 1980 case,                           Lock v. State                      , the Alaska Supreme Court                               



first   recognized  a   defendant's   entitlement   to   credit   for   time   spent   in   substantially  



                                                                                                                                                     2  

restrictive residential treatment as a condition of probation.                                                                                                                                                

                                                                                                                                                         Lock argued that the phrase  



                                                                                                                                                                                                              

"in custody" as used in AS 11.05.040(a) - the precursor to AS 12.55.025(c) - should  



                                                                                                                                                                                                                         

be  interpreted  broadly  to  include  therapeutic  programs  in  which  the  conditions  of  



                                                                                                                                                    3                                                                        4  

                                                                                                                                                                                                                                  

residence are so restrictive that they approximate custody.                                                                                              The supreme court agreed. 



                                                                                                                                                                                                 

                                  In a line of cases beginning with Nygren v. State, we then applied the  



                                                                                                                                                                                                                           

reasoning of Lock  to requests for credit for time spent in residential treatment as a  



                                             5  

                                  

condition of bail.                                                                                                                                                                                                        

                                                   We interpreted AS 12.55.025(c) (which is substantially similar to  



                                                                                                                                                                                                                  

former AS 11.05.040(a)) as requiring a court to grant a defendant credit for time spent  



         2       Lock v. State , 609 P.2d 539, 545 (Alaska 1980).  



         3       Id. at 542.  



         4       Id.  



         5       See Nygren  v. State, 658 P.2d 141 (Alaska App. 1983); see also McKinley v. State,  



275 P.3d 567 (Alaska App. 2012) (noting that the "Nygren line of  cases" governed requests  

for jail credit for time spent in non-prison residential treatment for "close to a quarter- 

century").  



                                                                                                         - 4 -                                                                                                      2590
  


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

in residential treatment under court order if the defendant was subject to restrictions                                    

approximating incarceration.                   6  



                                                                                                                               

                      Then, in 2007, the Alaska Legislature enacted a specific statute defining  



                                                                                                                           

those situations in which a defendant may receive credit for time spent in non-prison  



                                 7  

                                                                                                                               

                                    This statute, AS 12.55.027, supplanted the rule we had followed  

treatment programs. 



                                                                                                                               

in the Nygren cases for determining whether a defendant's stay in a treatment program  



                                                                                                 8  

                                                                                                                            

was sufficiently restrictive to entitle that person to credit.                                        Because AS 12.55.027  



                                                                                                                                   

authorizes credit for treatment programs regardless of whether those programs would  



                                                                                                                                         

qualify as "custody" under AS 12.55.025(c), it is unclear whether we should look to  



                                                                                                                                    

AS 12.55.025(c) to answer other procedural questions surrounding the award of credit  



                                              

under such circumstances.  



                                                                                                                                       

                      We need not determine the precise interplay between AS 12.55.025(c) and  



                                                                                                                                        

AS 12.55.027 because even assuming AS 12.55.025(c) applies to Medina's request for  



                                                                                                                                        

credit, we disagree with the superior court that this statute precludes credit under the  



                                    

circumstances of this case.  



                                                                        

           Why we reverse the superior court's ruling  



                                                                                                                                          

                      We have recognized that AS 12.55.025(c) requires a sentencing court to  



                                                                                                                   9  

                                                                                                                               

grant credit for time served "'in connection' with the same offense."                                                  The superior  



                                                                                                                             

court's ruling in this case was premised on the notion that Medina's 2014 probation  



     6     Nygren, 658 P.2d at 146.  



     7     SLA 2007, ch. 24,  20.  



      8    See McKinley, 275 P.3d at 567-68.  



     9     See  Marker  v.  State,    829  P.2d  1191,  1194  (Alaska  App.  1992)  (discussing  



AS 12.55.025(c)).  



                                                                  - 5 -                                                              2590
  


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

violations and his 2015 probation violations were separate "offenses" for purposes of                                                                      



AS 12.55.025(c).                  But this premise is contrary to Alaska law.                            



                        Probation             revocation              proceedings               are       not       independent                criminal  



                        10                                                                                                                                 11  

                                                                                                                                                                

                                                                                                                                    

proceedings.                 Rather, they are a continuation of the original criminal proceedings. 



Accordingly, "[p]robation revocation . . . amounts to continuing punishment for the  

                                                                                                                                                         

crime for which probation was originally imposed."12  

                                                                             



                                                                                       

                        This continuity is reflected in the responsibilities of the sentencing judge  



                                                                                                                                           

at a probation revocation hearing. When a judge is deciding what portion of a previously  



                                                                                                                                              

suspended term of imprisonment, if any, to impose, the judge must consider all available  



                                                                                                                                       13  

                                                                                                                                                     

sentencing information, including "the seriousness of the original offense."                                                               And when  



                                                                                                                                                     

a judge determines that a probationer can no longer benefit from supervision, the judge  



                                                                                                                                                        

"must carefully reevaluate all currently available information and impose a sentence that  



                                                                                                                                                       

would have been appropriate for the original offense had the trial court known the new  



                                                                     14  

                                                                          

                                              

information at the initial sentencing." 



      10    State v. Sears, 553 P.2d 907, 910 (Alaska 1976); Demientieff v. State, 814 P.2d 745,  



747 (Alaska App. 1991) (citing Paul v. State, 560 P.2d 754, 756 (Alaska 1977)).  



      11    See Kvasnikoff v. State, 535 P.2d 464, 466 (Alaska 1975) (holding that a probation                                                



revocation hearing is a "supplemental proceeding" to the original proceeding placing the  

defendant on probation).  See also McRae v. State, 909 P.2d 1079, 1083 (Alaska App. 1996).  



      12    Demientieff , 814 P.2d at 747; see also Toney v. State, 785 P.2d 902, 903 (Alaska App.  



 1990).  



      13    DeMario v. State , 933 P.2d 558, 562 (Alaska App. 1997); Toney, 785 P.2d at 903.  



      14    Luepke v. State , 765 P.2d 988, 990-91 (Alaska App. 1988).  



                                                                           -  6 -                                                                     2590
  


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

                       Other courts, including the United States Supreme Court, have similarly                                          



construed   revocation   and   re-imprisonment   for   a   probation   or   parole   violation   as  

punishment for the underlying criminal offense.                                     15  



                                                                                                                                   

                       Thus,probationviolations arenotnew"offenses,"separateandindependent  



                                                                                                                                      

from one  another  and  from the  underlying  criminal  conviction.                                                     Rather,  probation  



                                                                                                            

revocations relate back to the underlying criminal offense, constituting "continuing  



                                                                                                                             16  

                                                                                                            

punishment for the crime for which probation was originally imposed." 



                                                                                                                                              

                       The superior court's reliance on AS 12.55.025(c) to deny Medina credit  



                                                                                                                                          

was therefore misguided. Both Medina's 184 days in treatment in 2014 and his 150-day  



                                                                                                                                        

term  of  incarceration  in  2015  were  "in  connection  with"  his  underlying  criminal  



                17 

offenses.                                                                     

                    Alaska Statute 12.55.025(c) did not bar credit, even though Medina's time  



                                                                                                                                            

in treatment occurred while he awaited adjudication of the earlier 2014 petition to revoke  

probation.18  



      15    See   Johnson   v.   United   States,   529   U.S.    694,   700-01   (2000)   ("attribut[ing]  



postrevocation penalties to the original conviction" and noting the constitutional questions  

that would otherwise be raised from treating postrevocation penalties as new punishment);   

see also State v. Black, 710 A.2d 428, 440 (N.J. 1998); State v. Corkum, 735 S.E.2d 420, 423  

(N.C. App. 2012).  



      16    See Demientieff, 814 P.2d at 747; see also Toney, 785 P.2d at 903.  



      17    Cf.  Raymond  v.  State,  2004  WL  1837708,  at  *3  (Alaska  App.  Aug.  18,  2004)  

                                                                                                   

(unpublished) (applying credit for time spent in custody on a violating conditions of release  

                                                                                                                                            

charge against sentence imposed for earlier DUI because the violating conditions of release  

                                                                                                                                            

charge was "sufficiently connected to" the DUI to satisfy AS 12.55.025(c)).  



      18    Cf. State v. Shetters, 246 P.3d 332, 338 (Alaska App. 2010) (holding that mandatory  



                                                                                                                                     

parolees are entitled to credit for time served at a halfway house as a condition of their parole  

                                                                                                                                               

"if  the  Board  later  revokes  their  parole  and  orders  them  to  serve  some  or  all  of  their  

remaining sentence").  



                                                                       -  7 -                                                                  2590
  


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

                                                    Theoppositeconclusion would havefar-reaching                                                                                                                                               implications, not only for                                                         



 those in residential treatment but also for those incarcerated.                                                                                                                                                                         Because AS 12.55.025(c)                           



 does not distinguish between custody that results from residential treatment and custody                                                                                                                                                                                                                      



 that results from incarceration in a correctional institution, interpreting AS 12.55.025(c)                                                                                                                                                                                                



 to preclude credit for earlier excess time spent in treatment implies that credit should be                                                                                                                                                                                                                                        



 likewise precluded for earlier excess time in jail in the same case.                                                                                                                                                                    



                                                    Thus, under the trial court's rationale, a person who served excess time in                                                                                                                                                                                                       



jail while awaiting sentencing on a first probation violation would not be entitled to                                                                                                                                                                                                               



 credit for that excess time when a later sentence was imposed for a second probation                                                                                                                                                                                                                  



 violation in the same case, since the excess time was not "in connection" with the first                                                                                                                    



 disposition hearing.                                                              But if this person later received the balance of his suspended                                                                                                                                                  



 sentence, without any credit for the excess prior service, that person would serve a                                                                                                                                                                                                                                                  



 sentence longer than his original sentence - an outcome that would raise significant                                                                                                                                                                                                               



                                                                                  19                                                                                                                                                                   20  

                                                                                                                                                                                                                   

 constitutional issues.                                                                     Other courts have rejected this outcome. 



              19           See,  e.g.,   Hester  v.  State,   777  P.2d  217,  218-19  (Alaska  App.  1989);  cf.   North  



  Carolina v. Pearce, 395 U.S. 711, 718 (1969) (constitutional prohibition against double   

jeopardy requires credit against sentence imposed after retrial for time previously served in                                                                                                                                                                                                               

 prison in connection with the same case).  



              20  

                                                                                                 

                           See, e.g., Corkum, 735 S.E.2d at 425 (holding that defendant was entitled to credit  

                                                                                                                                                                                                                                                                                                                              

 against second violation of supervision for time spent in custody pending resolution of first  

                                             

 violation of supervision, since he was "serving the same nine-month sentence that he would  

 have served had post-release supervision been revoked following the first violation"); Ex  

parte Canada , 754 S.W.2d 660, 667-68 (Tex. Crim. App. 1988) (holding that denying credit  

 to a parolee for time spent confined pursuant to a pre-revocation warrant who "has his parole  

                                                                                                                                                                                                                                                                                          

 continued only to have it later revoked is violative of the parolee's right of due course of  

                                                                                                                                                                                                      

 law" under the Texas Constitution).  But see Bryant v. Warden, 776 F.2d 394 (2d Cir. 1985)  

 (denying request to offset sentence imposed for parole violation with time served on a prior  

 parole violation).  



                                                                                                                                                              -  8 -                                                                                                                                                         2590
  


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

                               Or, extending this logic further, a person who remained incarcerated on a                                                                                               



new criminal charge prior to trial because of an inability to make bail, but who ultimately                                                                                        



resolved his case                      through a   plea agreement for an entirely suspended sentence, would not                                                                                    



receive   any   credit   against   his   suspended   time   if   it   were   later  imposed   because   of  



probation violations.                              This is precisely the type of inequity that AS 12.55.025(c) was                                                                              

designed to avoid.                         21  



                                                                                                                                                                                                  

                               Our conclusion that Medina is entitled to credit (assuming he meets the  



                                                                                                                                                                                                            

requirements of AS 12.55.027) is bolstered by considerations of fairness and equity.  



                                                                                                                                                                                                

Putting aside the formal question of whether credit is constitutionally mandated for time  



                                                                                                                                                                    22  

                                                                                                                                                                                               

spent in restrictive rehabilitative programs (an issue we do not decide),                                                                                                we agree with  



                                                                                                                                                                                                 

the Alaska Supreme Court's statement in Lock that there is a certain "unfairness [in]  



                                                                                                                                                                                     

requiring  a  probationer  .  .  .  to  participate  in  a  treatment  program  which  imposes  



                                                                                                                                                                                                    

substantial restraints on his liberty,  and then upon a violation of his probation . . .  



                                                                                                                                                                                                

imposing a sentence of imprisonment for the original offense, undiminished by the time  



        21      See Thompson v. State, 496 P.2d 651, 656 (Alaska 1972);  cf. Smith v. State, 685 So.2d  



 1362, 1363 (Fla. Dist. App. 1996) ("A prisoner sentenced to prison for violating probation  

which constitutes the second portion of a split sentence is entitled to credit for time actually   

served in prison prior to the commencement of the probationary term."); Neil P. Cohen, 2                                                          

The Law of Probation and Parole    28:10, pp. 21-23 (2d ed. 1999) (noting that "[a]fter a                                                                                           

probation revocation, most jurisdictions give full credit for time spent in jail prior to the   

initial criminal trial or while awaiting sentencing, unless such credit has already been given"   

and also that "credit for time in jail awaiting revocation, like credit for jail time prior to the   

original criminal trial, is usually given").  



        22      See Lock v. State, 609 P.2d 539, 542 (Alaska 1980) (declining to address Lock's  

                                                                                                                                                                                          

argument  that  double  jeopardy  protections  mandate  credit  for  time  spent  under  the  

                                                                                                                                             

restrictions of a rehabilitation program).  



                                                                                               -  9 -                                                                                          2590
  


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

                                                                23  

spent in the treatment program."                                     Accordingly, the                   Lock   court held that a person is                          



entitled to credit for time spent in sufficiently restrictive treatment as a condition of                                                                          



probation on a suspended imposition of sentence, notwithstanding the fact that granting                                                                



such credit essentially allows for some level of immunity against a sentence for future   



                                        24  

probation violations.                         



                                                                                                                                                  

                          Moreover, under the superior court's ruling in Medina's case, entitlement  



                                                                                                                    

to credit would essentially turn on the precise wording of a disposition, leaving credit  



                                                                                                                                                          

open to arbitrary and unfair manipulation. Whether a probationer received credit against  



                                                                                                                                                            

his sentence would hinge, in part, on whether the defense attorney requested a "time  



                                                                                                                                                     

served" rather than a "no time imposed" disposition.  Indeed, the State faults Medina's  



                                                                                                                                                                 

attorney for failing to do just that, arguing:  "Had Medina bargained for, and had the  



                                                                                                                                                                  

court ordered, Medina to be sentenced to 'time served,' he may be entitled to credit for  



                                                                                                                                                              

the time spent in treatment because he would have had a sentence imposed for the 2014  



                                                                                                                                                              

probation violations."  But a defendant's entitlement to credit should not turn on such  



                                          25  

                   

semantic distinctions. 



                                                                                                                                                             

                          Ultimately,weconcludethat any problemof"banking"creditagainstfuture  



                                                                                                                                                    

sentences in the same case is outweighed by the fairness concerns we have explained  



                                                                                                                                                               

here, as well as by the risk that defendants will improperly serve sentences longer than  



      23     Id. at 546.  



      24     Id.  



      25     See generally Walters v. State, 798 P.2d 357, 359 (Alaska App. 1990) (noting that   



"parolees and probationers should be treated with basic fairness" and holding that a prisoner  

should not be "unfairly and arbitrarily deprived of credit because of the failure to institute                                  

revocation proceedings in a prompt and timely manner").                                                    Cf. Wells v. State, 706 P.2d 711,  

714 (Alaska App. 1985) (holding that the legislature did not intend application of mandatory   

consecutive sentencing to turn on "such fortuitous and haphazard considerations" as whether  

a defendant had the foresight to arrange consolidated sentencing proceedings).  



                                                                              -  10 -                                                                         2590
  


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

originally imposed.                                                   We therefore reverse the superior court's ruling that Medina is not                                                                                                                                                         



entitled to seek credit for the time he spent at the Salvation Army program in 2014.                                                                                                                                                                                          



                        Why we remand for further consideration of Medina's request for credit                                                                                                                                                                    

                       under AS 12.55.027                 



                                               Our   conclusion   that   AS   12.55.025(c)   does   not   bar   credit   under   these  



circumstances does not resolve this case.                                                                                                        As discussed earlier, the Alaska Legislature                                                                         



has enacted AS 12.55.027, which sets out criteria for determining whether a defendant's                                                                                                                                                                           



time in treatment qualifies for jail credit. A court must evaluate a defendant's request for                                                                                                                                                                                                        



credit for treatment under AS 12.55.027 and determine whether the defendant's time in                                                                                                                                                                                                                  



the treatment program qualifies for credit.                                                                                                       The statute also contains a time frame within                                                                                        



which a defendant must generally notify the court of his request for credit, although there                                                                                                                                                                                                 



                                                                                                                                                                                                                                                              26  

is a "good cause" exception for requests that fall outside this time frame.                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                         

                                               In the trial court, the State objected to Medina's request for credit based  



                                                                                                                                                                                                                                                                                            

solely on the ground that AS 12.55.025(c) precluded credit.  Because the superior court  



                                                                                                                                                                                                                                                                                                      

adopted the rule that the State proposed, the court did not evaluate the conditions of  



                                                                                                                                                                                                                                                                                          

Medina's residence at the Salvation Army program and did not determine how much  



                                                                                                                                                                                                                                                                                           

credit, if any, Medina should receive under AS 12.55.127.  It is appropriate that these  



                                                                                                                                                                                

questions be resolved by the trial court in the first instance.  



                        Conclusion  



                                                                                                                                                                                                                                                                          

                                               We REVERSE the trial court's order and REMAND this case to the trial  



                                                                                                                                                                                                                                                                              

court for reconsideration of Medina's request for credit under AS 12.55.027.  



                                                                                                                                                                             

                                               We do not retain jurisdiction of this case.  



            26         AS 12.55.027(e).  



                                                                                                                                             -  11 -                                                                                                                                           2590
  

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