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State v. Bell (3/9/2018) ap-2592

State v. Bell (3/9/2018) ap-2592

                                                NOTICE
  

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                               303 K Street, Anchorage, Alaska  99501
  

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                             Court of Appeals No. A-12693  

                                Petitioner,                Trial Court No. 3AN-12-5493 CR  



                        v.  

                                                                     O  P  I  N  I  O  N  

ROBERT DANIEL BELL,  

                                                               No. 2592 - March 9, 2018  

                                Respondent.  



                Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                District, Anchorage, Jack W. Smith, Judge.  



                Appearances:  A. James Klugman, Assistant District Attorney,  

                Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for  

                the Petitioner.   Jason A. Weiner, Gazewood & Weiner, P.C.,  

                Fairbanks, for the Respondent.  



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

                Superior Court Judge. *  

                                             



                Judge ALLARD.  



                In 2015, the Alaska legislature amended AS 12.55.027(d) to give trial courts  



the  authority  to  grant  credit  against  a  sentence  of  imprisonment  for  time  that  the  



defendant spent on electronic monitoring as a condition of bail release, provided that  



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



Constitution and Administrative Rule 24(d).  


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

certain statutory requirements are met.  One of these requirements is that the person "has  



not committed a criminal offense while under electronic monitoring."  



               In this petition, we are asked to review the superior court's decision to grant  



full credit under AS 12.55.027(d) to the defendant in this case, who was released multiple  



times on bail pending appeal under conditions that included electronic monitoring.  For  



the reasons explained here, we affirm the  superior court's order in part, reverse the  



superior court's order in part, and remand this case to the superior court for further  



proceedings consistent with the guidance provided here.  



        Underlying facts  



               Following a jury trial, Robert Daniel Bell was convicted of second- and  

third-degree theft for receiving a stolen computer.1  Bell appealed his convictions to this  



Court, and we affirmed his convictions in an unpublished opinion issued on January 11,  

2017.2  Bell then petitioned the Alaska Supreme Court to hear his case; that petition was  



denied on May 9, 2017.3  Thus, under Alaska Appellate Rules 507(b) and 512(a)(2)[b],  



our affirmance of Bell's conviction became final on May 10, 2017.  



               During  the  time  that  Bell's  appeal  was  pending,  Bell  was  granted  bail  



pending appeal and he served what appears to have been three distinct periods of time  



on electronic monitoring.  The first period of time (Period I) covered January 14, 2014  



through June 6, 2014.  This period ended because Bell was remanded to custody based  



on allegations that he violated the conditions of his release.  However, Bell was re- 



    1  Second-degree  theft  under  AS  11.46.100(4);  AS  11.46.190;  former  AS  11.46.- 



130(a)(1)  (2012)  and  third-degree  theft  under  AS  11.46.100(3);  AS  11.46.180;  former  

AS 11.46.140(a)(1) (2012), respectively.  



    2  Bell v. State, 2017 WL 127985, at *4 (Alaska App. Jan. 11, 2017) (unpublished).  



    3  See  Bell v. State, Supreme Court File No. S-16613.  



                                             - 2 -                                        2592
  


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

released on electronic monitoring on July 18,  2014.  This second period of time on  



electronic monitoring (Period II) was briefly interrupted by what appears to have been  



a remand by the electronic monitoring company (but not by the court) on August 15,  



2014.  Bell apparently returned to electronic monitoring on September 12, 2014 under  



the  same  court  order  as  before.    Bell's  second  period  of  electronic  monitoring  



subsequently ended on November 21, 2014, when Bell was arrested and charged with  



third-degree theft, a new criminal offense to which Bell later pleaded guilty.  Nearly a  



year  and  a  half  later,  Bell  was  again  granted  bail  pending  appeal  and  released  on  



electronic monitoring.  This last period of time on electronic monitoring (Period III)  



continued from the date of his release on electronic monitoring (March 18, 2016) through  



the end of his appeal.  



                Invoking the provisions of AS 12.55.027(d), Bell asked the superior court  



to  award  him  credit  against  his  sentence  of  imprisonment  for  the  time  he  spent  on  



electronic monitoring under the court orders granting him bail release pending appeal.  



Over the State's objections, the superior court granted Bell credit for the entire time he  



spent on electronic monitoring, with the exception of one day - the day on which Bell  



committed the third-degree theft that he was later convicted of.  



                The State petitioned this Court to review the superior court's ruling.  We  



granted the petition and requested supplemental briefing on the factual basis for the  



State's objections to the superior court's decision.  



                In its supplemental briefing, the State concedes that Bell is entitled to credit  



for Period III - the time from March 18, 2016 until May 10, 2017.  We conclude that  

the  State's  concession  is  well-founded,4  and  we  therefore  affirm  that  portion  of  the  



superior court's order.  



    4   See  Marks v. State , 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



independently assess any concession of error by the State in a criminal case).  



                                                 -  3 -                                          2592
  


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

               We also agree with the State that the superior court had no authority to grant  



Bell  credit  against  his  sentence  for  Period  II,  because  Bell's  release  on  electronic  



monitoring for that time period was terminated based on his commission of a new crime.  



Accordingly, we reverse that portion of the superior court's order.  



               However, we conclude that further proceedings are required to determine  



if Bell is entitled to receive credit against his sentence for Period I.  We therefore vacate  



that portion of the superior court's order, and remand this case to the superior court for  



further proceedings consistent with the guidance provided here.  



        Why we conclude that Bell is entitled to credit for Period III  



               Alaska Statute 12.55.027(d) authorizes trial courts to award credit against  



a defendant's sentence for the time a defendant spends on bail release if the conditions  



of release include electronic monitoring, and if the conditions of release are otherwise  



sufficiently restrictive.  



               Here, the parties do not dispute that Bell's electronic monitoring conditions  



were sufficiently restrictive to qualify for credit under AS 12.55.027(d).  The parties also  



agree that Bell did not commit a crime during Period III of his bail release - i.e., after  



Bell was released for the last time on electronic monitoring on March 18, 2016.  



               On this basis, the State concedes that Bell is entitled to credit against his  



sentence for Period III (from March 18, 2016 until May 10, 2017).  We agree.  



        Why we conclude that Bell is not entitled to credit for Period II  



               Under the terms of AS 12.55.027(d), a trial court may not grant credit for  



time spent on electronic monitoring if the defendant "has ... committed a criminal offense  



while under electronic monitoring."  



                                              - 4 -                                         2592
  


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

                Here, the parties agree that Bell committed a new crime while he was  



released on electronic monitoring.  On November 21, 2014, Bell was arrested for third- 



degree theft - and this arrest ended Period II of Bell's bail release.  Bell later pleaded  



guilty to this offense.  



                Bell argues that AS 12.55.027(d) should not be interpreted as requiring a  



complete forfeiture of credit if a defendant on electronic monitoring commits a new  



offense.  Rather, Bell contends that the statute was intended to give trial courts the  



discretion  to  determine  how  much  credit  a  defendant  should  lose  if  the  defendant  



commits a new crime while on electronic monitoring.  



                We  disagree.     Bell's  interpretation  is  at  odds  with  the  language  of  the  



statute.  Alaska Statute 12.55.027(d) declares that a defendant's commission of a new  



crime is a circumstance that deprives a trial court of the authority to grant credit against  



a defendant's sentence for time spent on electronic monitoring.  The statute does not  



require that the defendant be formally charged with that criminal offense, or that the  



defendant be separately convicted of that offense.  



                Moreover,  the  legislative  history  of  AS  12.55.027(d)  shows  that  the  



legislature intended for a defendant to forfeit  all of their credit in the event that the  



defendant  committed  a  criminal  offense  while  on  electronic  monitoring.    In  her  



introductory remarks to the House Judiciary Committee, the sponsor of this legislation  



- Rep. Tammie Wilson - stated that the legislation was intended to offer an incentive  



to defendants in the form of credit for time spent on electronic monitoring before trial,  



but "if you commit another crime when you 're on electronic monitoring, you do not get  

[credit]."5  



    5   Minutes of House Judiciary Comm., House Bill 15, remarks of Rep. Tammie Wilson,  



02:05:04-02:05:12 (Feb. 20, 2015).  



                                                 -  5 -                                          2592
  


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

                At the next hearing in front of the Judiciary Committee, Rep. Wilson again  



stated that "if the person has committed another criminal offense, [he] won't be able to  

get any kind of [credit]."6  This intent was also reflected in the "Explanation of Changes"  



for  the  updated  version  of  the  bill,  which  stated  that  the  new  version  "amends  



AS 12.55.027(d) to include language that clarifies that defendants can only receive credit  



against a sentence of imprisonment if the individual has not committed a criminal offense  

while under electronic monitoring."7  



                After the bill was referred to the House Finance Committee, Rep. David  



Guttenberg  asked  if  a  defendant  would  lose  credit  for  electronic  monitoring  if  the  



defendant violated any condition of bail, even if the violation of bail conditions did not  

independently  constitute  a  crime.8    Rep.  Wilson  explained  that  a  violation  of  bail  



conditions constituted a crime under Alaska law and she stated unequivocally "that while  



you're on the ankle monitor, you can't commit  another crime and expect to get any  

[credit]."9  



                At the next hearing, Rep. Les Gara introduced an amendment to include  



third-party custodian release as an opportunity for a defendant to receive credit toward  



their sentence, so long as the defendant is under the same restrictions as defendants on  



    6   Minutes of House Judiciary Comm., House Bill 15, remarks of Rep. Tammie Wilson,  



01:09:08-01:09:18 (Mar. 18, 2015).  



    7   Explanation of Changes for CSHB 15 ver. P, House Bill 15, Rep. Tammie Wilson,  



House Judiciary Comm. Hearing (Mar. 18, 2015).  



    8   Minutes  of  the  House  Finance  Comm.,  House  Bill  15,  remarks  of  Rep.  David  



Guttenberg 02:35:15-02:36:00 (Apr. 6, 2015).  



    9   Id. , testimony of Rep. Tammie Wilson, 02:36:01-02:36:16.  



                                                 -  6 -                                           2592
  


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

electronic  monitoring.10    In  explaining  his  amendment,  Rep.  Gara  declared  that  his  



understanding  of  the  proposed  bill  was  that,  if  a  defendant  who  was  on  electronic  



monitoring violated a bail condition or committed a new crime, the defendant would not  

receive credit against their sentence.11  No one contradicted Rep. Gara's understanding  



of this point.  



                After the bill was sent to the Senate, Sen. Bill Wielechowski specifically  



asked if a defendant would lose all of their credit if they violated a condition of their  



release, or if the defendant would lose just the credit for the day of the violation and no  

more.12  (When Sen. Wielechowski asked this question, he noted that this might well be  



an issue where the courts would look for evidence of legislative intent.13)  The Alaska  



Court System's representative, Nancy Meade, responded to the senator's question by  



stating  her  belief  that,  the  way  the  statute  was  worded,  the  commission  of  another  

criminal offense meant that the defendant lost all credit.14  



                When Rep. Wilson joined the hearing, Sen. John Coghill asked if the intent  



of the bill was to have a defendant lose all credit if they committed a crime while on  

electronic monitoring, or whether the  loss of credit "should ... be prorated?"15  Rep.  



Wilson answered that the courts would ultimately have to decide that question, but that  



   10   Minutes of the House Finance Comm., House Bill 15, remarks of Rep. Les Gara  



02:24:55-02:28:48 (Apr. 10, 2015).  



   11   Id. at 02:27:08-02:27:19.  Rep. Gara's amendment failed in a roll call vote.  Id. at  



02:42:00-02:42:57.  



   12   Minutes  of  the  Senate  Judiciary  Comm.,  House  Bill  15,  remarks  of  Sen.  Bill  



Wielechowski, 02:26:50-02:27:08 (Apr. 15, 2015).  



   13   Id. , 02:27:30-02:27:42.  



   14   Id. , testimony of Nancy Meade, 02:27:08-02:27:26.  



   15   Id. , remarks of Sen. John Coghill, 02:39:14-02:39:54.  



                                                 -  7 -                                          2592
  


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

her intent was to "make them lose it all, because I think that's a bigger incentive [if] it's  

an all-or-nothing."16  



                 At the Senate Judiciary Committee's final hearing on the bill, Sen. Lesil  



McGuire noted that the committee had received a legal memo on the only outstanding  

issue.17  This memo was authored by Doug Gardner of the Legislative Affairs Agency  



and had been requested by the committee.18  Gardner's memo stated unequivocally that,  



given the current wording of the bill, a defendant would forfeit any and all credit if the  

defendant committed a crime while on electronic monitoring.19  The memo declared that  



there  was  "nothing  ambiguous"  about  the  wording  of  the  bill,  and  that  it  was  not  

necessary to insert further language into the bill to address this  issue.20                    The senate  



committee accepted this position, adopted it as their understanding of the bill, and passed  

the bill out of committee.21  



                 From all of this, it is clear that the legislative intent of AS 12.55.027(d) was  



to  deny  any  credit  to  a  defendant  who  commits  a  new  crime  while  on  electronic  

monitoring.22  



    16  Id. , testimony of Rep. Tammie Wilson, 02:39:54-02:40:10.  



    17   Minutes of Senate Judiciary Comm., House Bill 15, remarks of Sen. Lesil McGuire,  



4:11:58-4:12:05 (Apr. 17, 2015).  



    18   Memorandum from Doug Gardner, Director of Legal and Res. Serv. for the Legis.  



Aff. Agency to Sen. Lesil McGuire for House Bill 15 (Apr. 16, 2015).  



    19  Id.  



    20  Id.  



    21   Minutes of Senate Judiciary Comm., House Bill 15, remarks of Sen. John Coghill and  



Sen. Lesil McGuire, 04:13:13-04:14:06 (Apr. 17, 2015).  



    22   See State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016); Muller v. BP Expl. (Alaska)  



Inc. , 923 P.2d 783, 787 (Alaska 1996); Beck v. State, Dep't of Transp. & Pub. Facilities, 837  



                                                    -  8 -                                              2592
  


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

                 It is true, as Bell points out, that there were some legislative comments in  



the earlier hearings suggesting that this issue would ultimately have to be resolved by  



judicial interpretation.  But these comments occurred prior to the clarification provided  



by Doug Gardner's legal memo.  Moreover, a review of the final committee hearing  



before the Senate Judiciary Committee indicates that the legislation would not have  



passed out of committee and been enacted into law without the clarification provided by  



the Gardner memo.  



                 Bell argues in the alternative that his commission of a new criminal offense  



                                                              

in November 2014 should not bar the court from granting him credit for the first part of  



Period II - that is, to the period of time after he was first re-released on electronic  



monitoring and was remanded to custody by the electronic monitoring company, only to  

return to the same electronic monitoring conditions a month and a half later.23  



                 The State argues that this type of voluntary interruption in the time spent  



on electronic monitoring should not mean that the defendant's eligibility for credit under  



AS 12.55.027(d) begins anew when he returns to electronic monitoring under the same  



bail  release  order  as  before.    Instead,  the  State  argues  that  the  time  "spent  under  



electronic  monitoring"  for  purposes  of  determining  eligibility  for  credit  under  AS  



 12.55.027(d) should be defined in terms of the court order that grants the defendant the  



bail release on electronic monitoring.  In other words, a new period of time "spent under  



electronic monitoring" does not occur unless it is accompanied by a new determination  



P.2d 105, 116 (Alaska 1992).  



    23   We note that the current record does not explain why this remand occurred.  The  



State  has  characterized  it  as  a  "voluntary  remand"  and  Bell  did  not  dispute  this  

characterization at the oral argument held on this appeal.  It is possible that Bell may  

have  been  remanded  because  he  was  temporarily  unable  to  pay  for  his  electronic  

monitoring program.  



                                                   -  9 -                                             2592
  


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

of the defendant's suitability for bail release on electronic monitoring and a new court  



order allowing that release.  



                 The  State  argues  that  such  an  approach  is  most  consistent  with  the  



underlying legislative purpose of AS 12.55.027(d), which was to motivate defendants to  



obey the law and comply with the conditions of their court-ordered bail release while  



under electronic monitoring.  The State also points out that if the rule were otherwise, a  



defendant would be able to  improperly "bank" his credit under AS 12.55.027(d) by  



periodically remanding himself to custody only to be released a few days later under the  



same court order and the same electronic monitoring conditions.  



                 We agree that this type of manipulation would be contrary to the legislative  



purpose underlying AS 12.55.027(d) and we therefore adopt the State's proposed rule for  



determining  when  a  defendant's  "time  on  electronic  monitoring"  under  AS  12.55.- 



027(d) begins and ends.  



                 On appeal, Bell does not dispute the State's contention that the two periods  



of time he spent on electronic monitoring during Period II were governed by the same  



court order.  Accordingly, we conclude that Bell's commission of a new crime at the end  



of Period II bars him from receiving any credit for the entirety of Period II.   



   



         Why we conclude that further proceedings are required to determine if Bell  

         is entitled to receive credit for Period I  



                 Period I of Bell's electronic monitoring release came to an end on June 6,  



2014,  when  he  was  taken  into  custody  for  allegedly  violating  the  conditions  of  his  



release.  There do not appear to be any findings in the record regarding whether Bell  



violated his bail conditions as alleged, or whether those violations constituted criminal  



offenses.  



                                                   -  10 -                                             2592
  


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

               We therefore remand Bell's case to the superior court so that the court can  



make findings regarding these alleged violations of the conditions of Bell's release.  As  



already explained, Bell need not have been formally charged or actually convicted of  



violating the conditions of his release under AS 11.56.757 in order for Bell to be found  



to have committed these violations for purposes of making him ineligible to receive  



credit under AS 12.55.027(d).  



               However, Bell is entitled to notice of the alleged violations and the factual  

basis for those allegations.24  On remand, therefore, the State must produce the evidence  



it believes shows that Bell would be found guilty of violating the conditions of his release  



had such a charge been brought.  To be clear, this is only a burden of production, not a  



burden of persuasion.  The State is therefore not required to put on witnesses or to  



actually prosecute Bell for violating the conditions of his release.  Instead, the State may  



rely on hearsay reports or other forms of evidence that can be shown to be reliable, even  



if the evidence would not be admissible at a criminal trial.  



               Once the State has fulfilled this burden of production and has presented a  



prima facie case that Bell would be found guilty of violating the conditions of his release  



under AS 11.56.757, the burden then shifts to Bell to prove, by a preponderance of the  



evidence, that the State's proffered evidence is insufficient or otherwise unreliable and  

that he did not commit any of the alleged violations of the conditions of his release.25  



        Conclusion  



               The superior court's ruling is AFFIRMED in part, REVERSED in part, and  



VACATED in part.   Bell is entitled to credit for Period III of the time he spent on  



    24  Alaska Const. art. 1,  11.  



    25  Cf. AS 12.55.027(e).  



                                              -  11 -                                         2592
  


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

electronic monitoring.  Bell is not entitled to credit for Period II.  And with respect to  



Period I, the case is REMANDED for further proceedings consistent with the guidance  



provided here.  



                                              -  12 -                                         2592
  

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