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State v. Thompson (4/20/2018) ap-2595

State v. Thompson (4/20/2018) ap-2595

                                                                                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-12764  

                                                                                                                                                               

                                                      Petitioner,                                     Trial Court No. 3PA-16-424 CR  



                                         v.  

                                                                                                                     O   P   I   N   I   O   N  

LOWELL  JAMES  THOMPSON  IV,                                                                              



                                                                                                                                                        

                                                      Respondent.                                          No. 2595 - April 20, 2018  



                                             

                           P                                                                                                          

                              etition for  Review from the  Superior  Court,  Third Judicial  

                                                                                               

                           District, Palmer, Kari Kristiansen, Judge.  



                                                                                                                                          

                           Appearances:  Ann B. Black, Assistant Attorney General, Office  

                                                                                                                              

                           of       Criminal            Appeals,             Anchorage,                and       Jahna          Lindemuth,  

                                                                                                                                    

                           Attorney General,  Juneau,  for  the  Petitioner.                                              Lars  Johnson,  

                                                                                                                                       

                           Assistant             Public          Defender,              and        Quinlan            Steiner,           Public  

                                                                                                              

                           Defender, Anchorage, for the Respondent.  



                                                                                                                                    

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

                                                                      *  

                                                                         

                           Superior Court Judge. 



                                        

                           Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).                              


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

                                                            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                                                                                                                                                                                                                   



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   case,   we   are   required   to   decide   a   question   relating to                                                                                                                                                                                                              criminal  



defendants who violated a condition of their bail release while on electronic monitoring                                                                                                                                                                                                                                                         



between July 12, 2016 and November 27, 2017.                                                                                                                                                                        Did a violation of bail conditions during                                                                                                        



this 16-month period constitute a "criminal offense" - thus disqualifying the defendant                                                                                                                                                                                                                                                              



from receiving credit toward their sentence under AS 12.55.027(d) for the time they                                                                                                                                                                                                                                                                                          



 spent on electronic monitoring?                                                                                                              



                                                            The significance of these two dates - July 12, 2016 and November 27,                                                                                                                                                                                                                                                  



2017 - lies in the fact that, during the past two years, the Alaska Legislature has twice                                                                                                                                                                                                                                                                                



amended AS 11.56.757, the statute that forbids a person from violating the conditions                                                                                                                                                                                                                                                               



of their bail release.                                                                   



                                                            Before July 12, 2016,                                                                           Alaska law clearly stated that it was a crime to violate                                                                                                                                                 



the conditions of one's bail release.                                                                                                                              The pre-July 2016 version of AS 11.56.757(b)                                                                                                                 



declared that a person who violated a condition of their bail release was guilty of a class                                                                                                                                                                                                                                                                            



A   misdemeanor   if   they   were   released   on   a   felony   charge,   or   guilty   of   a   class   B  

misdemeanor if they were released on a misdemeanor charge.                                                                                                                                                                                                                            1  

                                                                                                                                                                                                                                                                                          



                                                            But                       the                    legislature                                           amended                                            AS                     11.56.757                                              effective                                            July                       12,  

                                                                                                                                                                                                                                                                                                                                                                            



                           2  

2016.                               Under this amended version of the statute, a person who violated a condition of  

                                                                                                                                                                                                                                                                                                                                                                                       



their bail release was guilty only of "a violation punishable by a fine of up to $1,000".  

                                                                                                                                                                                                                                                                                                                                                                                                    



                1             Enacted by SLA 2000, ch. 124,  3.
                                                                                                                    



               2  

                                                                                                                                                         

                               SLA 2016, ch. 36,  29-30.
  



                                                                                                                                                                                        - 2 -                                                                                                                                                                                   2595
  


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

                             This was a significant change because, under the Alaska Criminal Code, the                                                                                



term "violation" has a specialized meaning:                                                    it is "a noncriminal offense punishable only                                         



by a fine",               and   "conviction of a violation does not give rise to any disability or legal                                                                           



disadvantage based on conviction of a crime".                                                         AS 11.81.900(b)(65).                              



                             Then, in late 2017, the legislature amended AS 11.56.757 again.                                                                           Under the   

                                                                                                                                                           3  violatingone's  

current version of this statute, which took effect on November 27, 2017,                                                                                                          



conditions of bail release is again a crime - a class B misdemeanor.  

                                                                                                                                                       



                             The question presented in this case is whether, during this interim period  

                                                                                                                                                                               



of approximately 16 months, a violation of one's conditions of release stopped being a  

                                                                                                                                                                                           



"criminal offense" - so that defendants on electronic monitoring who violated their  

                                                                                                                                                                                   



conditions of bail release in non-criminal ways did not forfeit the credit they had accrued  

                                                                                                                                                                            



toward their sentence under AS 12.55.027(d).  

                                                                                                      



                             As we explain in this opinion,  we conclude that,  during  this  16-month  

                                                                                                                                                                        



period, defendants who violated their conditions of bail release in a non-criminal way  

                                                                                                                                                                                    



(i.e., other than by committing a new crime) did not "commit a criminal offense" for  

                                                                                                                                                                                      



purposes of AS 12.55.027(d) - and, thus, the defendant's violation of their conditions  

                                                                                                                                                                       



of release did not disqualify them from getting credit against their sentence for the time  

                                                                                                                                                                                    



they spent on electronic monitoring.  

                                                                                



               Underlying facts  

                                          



                             In February 2016, Lowell James Thompson IV was arrested on various  

                                                                                                                                                                             



charges,  including driving under  the  influence  and  felony  eluding.                                                                                  Thompson  was  

                                                                                                                                                                                    



released on pre-trial bail, with a condition of electronic monitoring.   Thompson's other  

                                                                                                                                                                                  



bail conditions included prohibitions on his use of alcohol and controlled substances.  

                                                                                                                                                                                         



       3       SLA 2017 (4th Special Session), ch. 1,  19-20, effective Nov. 27, 2017.                                                                                 



                                                                                          - 3 -                                                                                     2595
  


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

                                                                                                                              

                     On July 12, 2016, while Thompson was on electronic monitoring, a new  



                                                                                                                                

version of AS 11.56.757 took effect.   Under this new version, the act of violating the  



                                                                                                                               

conditions of one's bail release was no longer a misdemeanor, but only a violation.  



                                                                                                                        

                    Two  weeks  later,  on  July  27,  Thompson  was  remanded  to  custody  



                                                                                                               

following  his  arrest  for  two  new  crimes:                        fourth-degree  assault  and  fourth-degree  



                                                                                                                               

criminal mischief.  The State also alleged that Thompson violated the bail condition that  



                                                            

forbade him from consuming alcohol.  



                                                                                                                    

                     On  August  2,  2016,  Thompson  was  released  on  electronic  monitoring  



                                                                                                                            

again.      Two  and  a  half  months  later,  on  October  19,  2016,  Thompson  was  again  



                                                                                                                              

remanded  to  custody  after   his  urine  tested  positive   for   heroin,   cocaine,   and  



                                                                                                          

methamphetamine.  Thompson was not released on bail again in this case.  



                                                                                                                                

                    Thompson ultimately reached a plea agreement with the State.  Under the  



                                                                                                                                  

terms of this agreement, Thompson pleaded guilty to driving under the influence and to  



                                                                                                               

felony  eluding.           The  State  dismissed  the  other  charges,  including the  fourth-degree  



                                                                                                                        

assault and fourth-degree criminal mischief charges for which Thompson was arrested  



                                                                       

during his first period of electronic monitoring release.  



                                                                                                                              

                    Thompson received a composite sentence of 3 years and 90 days, with  



                                                                                                                               

60 days suspended.  At his sentencing, Thompson asked the superior court to give him  



                                                                                                                          

credit against this sentence under AS 12.55.027(d) for the approximately seven months  



                                                                                                   

- a total of 214 days - that he spent on electronic monitoring.  



                                                                                                                             

                    The State argued that Thompson was disqualified from receivingany credit  



                                                                                                                                      

against his sentence because, both times that he was released on electronic monitoring,  



                                                                                                                   

he violated the conditions of his  release - by consuming alcohol and by committing  



                                                                                                                               

new crimes during his  first release,  and by using illegal drugs during his second bail  



             

release.  



                                                               - 4 -                                                          2595
  


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

                                                                                                                                

                    Thompson   responded   that,   under   the   newly   amended   version   of  



                                                                                                                       

AS 11.56.757, his violations of the conditions of his release did not qualify as "criminal  



                                                                                                                            

offenses" for purposes of AS 12.55.027(d), and thus he was still eligible to receive credit  



                                                                        

for the time he spent on electronic monitoring.  



                                                                                                                                 

                    The superior court agreed that Thompson's violations of the conditions of  



                                                                                                                            

his release no longer constituted criminal  offenses  under Alaska law,  and the court  



                                                                                                                               

therefore granted Thompson the credit that he requested.   The court's order  did  not  



                                                                                                                          

address the State's claim that Thompson committed new crimes (fourth-degree assault  



                                                                                                                     

and  fourth-degree  criminal mischief)  during his  first  period  of  release  on  electronic  



                   

monitoring.  



                                                                                                                          

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



                                                                                                                           

           Why we conclude that defendants who violated the conditions of their bail  

                                                                                                                     

          release (other than by committing a new crime) between July 12, 2016 and  

                                                                                                            

          November 27, 2017 remained eligible for credit against their sentences  

                                                                                                                          

          under AS 12.55.027(d) for the time they spent on electronic monitoring  



                                                                                                                                 

                    At first blush, the answer to the question in this case might appear to be  



                                                                                                                     

straightforward.            Under  AS  12.55.027(d),  a  person  who  is  released  on  electronic  



                                                                                                                       

monitoring forfeits the credit they might otherwise have received against their sentence  



                                                                                                                                

if they "committed a criminal offense while under electronic monitoring".  From July 12,  



                                                                                                                               

2016 until November 27, 2017, the act of violating one's conditions of bail release was  



                                                                                                                                

only a "violation"  - a non-criminal offense.                             Thus,  a person who was released on  



                                                                                                                        

electronic monitoring during this 16-month period did not commit a "criminal offense"  



                                                                                                                              

if they violated their conditions of release in some way other than committing a new  



            

crime.  



                                                               - 5 -                                                          2595
  


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

                         But under Alaska law, courts employ a "sliding scale" approach to statutory                                             



interpretation.    We do not mechanically apply the "plain meaning" of the statutory                                                           

                                                                                                       4   Instead, we look both to the  

language, even if that language is facially unambiguous.                                                                                                   



wording of  the  statute  and  to  its  legislative  history  to  see  if  we  can  ascertain  the  

                                                                                                                                                          



                                                                                    5  

legislature's intent when it passed the statute.  

                                                                                        



                         Here,  the  State  argues  that  the  legislative  history  of  AS  12.55.027(d)  

                                                                                                                                        



evinces a clear legislative intent to deny electronic monitoring credit to any defendant  

                                                                                                                                              



who violated the conditions of their bail release, even if that violation of conditions was  

                                                                                                                                                          



not  independently  a  crime.                            Under  Alaska's  "sliding  scale"  approach  to  statutory  

                                                                                                                                               



interpretation, the State is entitled to make that argument.  But even under that "sliding  

                                                                                                                                                   



scale" approach, the plainer the statutory language is, the more convincing the evidence  

                                                                                                                                                 



                                                                        6  

of a contrary legislative intent must be.  

                                                                   



                         Here,   there   is   nothing  facially   ambiguous   about                                             the       wording  of  

                                                                                                                                                           



AS 12.55.027(d).   This statute provides, in pertinent part, that a court may not grant  

                                                                                                                                                       



credit against a sentence of imprisonment for time that the defendant spent on electronic  

                                                                                                                                               



monitoring "if the [defendant] has ... committed a criminaloffense while under electronic  

                                                                                                                                                



monitoring".  

                          

                                                                                                           7    At that time (as we have  

                         This  statutory credit was enacted in 2015.  

                                                                                                                                                        



already explained), AS 11.56.757 made it a crime to violate the conditions of one's bail  

                                                                                                                                                          



release.  Thus, when the legislature enacted the present statutory provisions giving credit  

                                                                                                                                                       



      4     State v   .  Fyfe ,  370 P          .3d   1092,   1094  (Alaska  2016).    



      5     Ibid.  



      6     Ibid.   



      7  

                                                             

             SLA 2015, ch. 20,  1-3.  



                                                                            - 6 -                                                                        2595
  


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

for electronic monitoring, the phrase                                                                                              "criminal offense" included any violation of the                                                                                                               



defendant's conditions of release.                                                                                     



                                               The   legislative   history   of   AS   12.55.027(d)   also   makes   clear   that   the  



legislature understood that this was the case - and that the legislature fully intended to                                                                                                                                                                                                             



deny electronic monitoring credit to a defendant who violated the conditions of their bail                                                                                                                                                                                                       



release.    



                                               The sponsor of the "credit for electronic monitoring" law, Representative                                                                                                                                  



Tammie Wilson, specifically stated that the intent of her legislation was to grant credit                                                                                                                                                                                                



to defendants on electronic monitoring only if "they follow the judge's orders and obey                                                                                                                                                                                                     



the laws of the land."                                                       Other legislative discussions of the proposed law also focused on                                                                                                                                                       



the requirement that the defendant comply with all the conditions of their bail release in                                                                                                                                                                                                             

order to obtain credit for time spent under electronic monitoring.                                                                                                                                                               8  



                                               Various legislators requested - and received - clarification of this exact  

                                                                                                                                                                                                                                                                                            



point.                       In  a  House  Finance  Committee  hearing  on  April  6,  2015,  for  example,  

                                                                                                                                                                                                                                                                            



Representative David Guttenberg asked for clarification of the statutory language "has  

                                                                                                                                                                                                                                                                                              

not committed a criminal offense". 9   Rep. Guttenberg pointed out that a defendant's bail  

                                                                                                                                                                                                                                                                                                 



conditions often prohibit conduct that is  not  itself criminal; for example, a judge can  

                                                                                                                                                                                                                                                                                                 



order a defendant not to drink alcoholic beverages while on bail release, or can order the  

                                                                                                                                                                                                                                                                                                   



defendant not to contact the victim or other witnesses.  In response, the bill's sponsor,  

                                                                                                                                                                                                                                                                               



Rep. Wilson, reminded Rep. Guttenberg that any violation of a condition of bail release  

                                                                                                                                                                                                                                                                                      



constituted a "criminal offense" under Alaska law - and she declared that the intent of  

                                                                                                                                                                                                                                                                                                      



            8           These discussions are found in the audio record of the House Judiciary Committee's                                                                                                                                                         



meeting of March 23, 2015, from 1:04:49 to 2:36:32.                                                                                                                                   



            9  

                                                                                                                                                                                                                                                                                                    

                        This question, and the discussion it engendered, are found in the audio record of the  

                                                                                                                                                                                                                                             

House Finance Committee's meeting of April 6, 2015, from 2:43:40 to 2:47:36.  



                                                                                                                                                - 7 -                                                                                                                                           2595
  


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

the   proposed   law   was   to   preclude   electronic   monitoring credit                                                                                   for   defendants   who  

violated any of the conditions of their release.                                                              10  



                                A similar discussion occurred at a Senate Judiciary Committee hearing on  

                                                                                                                                                                                                          



April 15, 2015.   At that hearing, Senator Bill Wielechowski discussed a hypothetical  

                                                                                                                                                                                 



situation in which a defendant was on electronic monitoring for a year and then violated  

                                                                                                                                                                                             



the conditions of their release by drinking  alcoholic beverages.                                                                                                Sen.  Wielechowski  

                                                                                                                                                                              



wanted clarification as to whether this defendant would lose their electronic monitoring  

                                                                                                                                                                                      



credit for the whole year, or only for the day on which the drinking occurred.  A member  

                                                                                                                                                                                            



of the legislative staff replied  that  the intent of the bill's sponsor was to preclude a  

                                                                                                                                                                                                            



defendant from receiving any credit for electronic monitoring if the defendant "[did] not  

                                                                                                                                                                                                        



adhere to the rules set forth by the court."  As the staffer explained, "If you ... break the  

                                                                                                                                                                                                        

law, you're not going to get the credit; and I believe that is the intent." 11  

                                                                                                                                                                              



                                Following this discussion,  Senator John Coghill stated his view that if a  

                                                                                                                                                                                                             



person  violated  any  condition  of  their  bail,  they  would  not  receive  any  credit  for  

                                                                                                                                                                                                       



electronic monitoring.   Sen. Coghill also emphasized that the legislature needed to be  

                                                                                                                                                                                                          



very clear on this point - and he asked Rep. Wilson whether the proposed language of  

                                                                                                                                                                                                           



        10      See   also   House   Finance   Committee   hearing on House                                                                        Bill   15,   April   6,   2015   @  



2:19:30, where Rep. Wilson explained that a defendant would                                                                                        receive credit only if the                           

defendant was compliant with their court-ordered conditions of release,                                                                                                and @ 2:27:43 -                        

2:28:03,   where   Rep.   Wilson   explained   that,   in   order   to   receive   credit   for   electronic  

monitoring, a defendant would have to comply with all the requirements imposed by the trial                                                                                                            

court.    See also House Finance Committee hearing on House Bill 15, April 10, 2015 @                                                                                                                     

2:27:08  - 2:27:19, where Rep. Les Gara stated, "If you violate your bail condition ... , you                                                                                                         

don't get this credit, because you're not allowed to commit a crime while you're out there,                                                                                                        

and violating your bail condition is a crime."                                     



        11  

                                                                                                                                                                                                              

                Senate Judiciary Committee hearing on House Bill 15, April 15, 2015 @ 2:32:37 - 

                                                                                                                                                                                             

2:33:36 (containing both Sen. Wielechowski's remarks and the staffer's response).  



                                                                                                   - 8 -                                                                                              2595
  


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

her   bill was           sufficient   to   clearly   indicate   that   a   defendant   who   failed   on   electronic  



                                                                        12  

monitoring would lose "all the credit".                                     



                         The  ambiguity  on  this  issue  only  arose  the  following year,  when  the  

                                                                                                                                                            



legislature amended AS 11.56.757 to reclassify the crime of violating one's conditions  

                                                                                                                                               



of bail release as a non-criminal "violation".  This legislative reclassification was part of  

                                                                                                                                                              



a larger 2016 omnibus criminal law reform bill that  made  substantive changes to a  

                                                                                                                                                               



significant portion of Alaska's criminal code.  

                                                                                      



                         The legislature's stated purpose for this change - reclassifying a violation  

                                                                                                                                                  



of bail conditions from a misdemeanor to a "violation" - was to remove the possibility  

                                                                                                                                                



of imprisonment for conduct that did not necessarily pose a threat to public safety (i.e.,  

                                                                                                                                                         



for violations of bail conditions that did not,  themselves,  independently constitute a  

                                                                                                                                                               



crime).  

               



                         The potential impact of this reclassification on a defendant's eligibility for  

                                                                                                                                                             



electronic monitoring credit under AS 12.55.027(d) was never acknowledged.  Indeed,  

                                                                                                                                                   



there was no discussion of this point at any of the committee hearings on the 2016  

                                                                                                                                                        



amendment to AS 11.56.757.  

                                                          



                         In  its  petition  to  this  Court,  the  State  suggests  that  even  though  the  

                                                                                                                                                           



legislature de-criminalized the violation of bail conditions  (by eliminating any criminal  

                                                                                                                                                   



penalty for bail violations that did not independently constitute a crime), there is nothing  

                                                                                                                                                    



in  the  legislative  record  to  indicate  that  the  legislature  had  changed  its  mind  about  

                                                                                                                                                       



denying jail credit to defendants who violated the conditions of their release while they  

                                                                                                                                                         



were on electronic monitoring.  

                                                            



       12     Senate Judiciary Committee hearing of April 15, 2015 @ 2:45:10 -                                                        2:45:33 and @           



2:48:51   -  2:49:50.    See also                        Senate Judiciary Committee hearing of April 15, 2015 @                                                     

2:32:16  - 2:32:21 (taking a drink would be considered a criminal offense if the court had                                                                  

prohibited alcohol consumption, because disobeying any condition of a bail order is a crime).                                                                      



                                                                             - 9 -                                                                        2595
  


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

                                            The State notes that the legislative record from 2015 clearly shows that the                                                                                                                                                            



legislature wanted to deny electronic monitoring credit to defendants who violated                                                                                                                                                                                               any  



bail condition, even if the defendant's conduct did not constitute an independent crime.                                                                                                                                                                                                        



Based on the clarity of the 2015 debates,                                                                                                       and based on the                                               fact that the legislature                    



engaged in only tangential discussions of this point in 2016, the State argues that                                                                                                                                                                                              the  



legislature did not intend to expand eligibility for electronic monitoring credit when they                                                                                                                                                                                    



amended AS 11.56.757 in 2016.                                                                                



                                            For this reason,                                         the State asks us to construe AS 12.55.027(d) as if it                                                                                                                              



precluded   electronic   monitoring   credit   for   defendants   who   "committed   a   criminal  



offense" (the language of the statute)                                                                                     and also                       for defendants who otherwise violated a                                                                                         



condition of their bail release.                                                                    



                                            The State offers a reasonable interpretation of the events of 2015 and 2016.                                                                                                                                                    



But it is also reasonable to construe AS 12.55.027(d) as it is written.                                                                                                                                                            



                                            When    the    legislature    enacted    its    omnibus    criminal    law    reform    in  

                    13  one of the legislature's chief goals was to reduce criminal penalties for a range  

2016,                                                                                                                                                                                                                                                                   



of conduct - types of conduct where the legislature concluded that the threat to public  

                                                                                                                                                                                                                                                                          



safety no longer justified the economic and societal costs of imprisoning offenders for  

                                                                                                                                                                                                                                                                                   



lengthy periods, or where the legislature concluded that shorter penalties would achieve  

                                                                                                                                                                                                                                                                     



the same community goals.                                                                          As we have explained,  this was clearly the legislature's  

                                                                                                                                                                                                                                                      



thinking when it amended AS 11.56.757 to eliminate criminal penalties for violations of  

                                                                                                                                                                                                                                                                                       



bail conditions that did not, themselves, constitute new criminal offenses.  

                                                                                                                                                                                                                                                  



                                            This  new  attitude  toward  non-criminal  violations  of  bail  conditions  is  

                                                                                                                                                                                                                                                                                       



consistent with the legislature's decision to leave the wording of AS 12.55.027(d) alone  

                                                                                                                                                                                                                                                                            



- so that defendants would continue to lose electronic monitoring credit if they violated  

                                                                                                                                                                                                                                                                    



            13         SLA 2016, chapter 36 - popularly known as "Senate Bill 91".                                                                                                                                        



                                                                                                                                      -  10 -                                                                                                                                    2595
  


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

                                                                                                                                

their bail conditions by committing new criminal offenses,  but defendants would no  



                                                                                                                      

longer lose their electronic monitoring credit if they committed non-criminal violations  



             

of bail.  



                                                                                                                                

                    Because we conclude that both of these interpretations are reasonable, our  



                                                                                                                               

decision in this case is guided by the principle that,  the plainer the language of  the  



                                                                                                                              

statute, the more convincing the evidence of a contrary legislative intent must be.  



                                                                                                                  

                    Here, that principle counsels us to reject the State's proposed construction  



                                                                                                                               

of the statute, and to affirm the trial court's ruling that Thompson's violation of his bail  



                                                                                                                      

conditions by drinking alcoholic beverages and illicitly using drugs does not disqualify  



                                                                                                                

him from receiving credit for the days he spent on electronic monitoring.  



                                                                    

          The remaining issue in Thompson's case  



                                                                                                                                

                    Our ruling regarding the proper construction of AS 12.55.027(d) does not  



                                                          

wholly dispose of Thompson's case.  



                                                                                                                    

                    As we explained earlier, the State argued that Thompson was disqualified  



                                                                                                                                 

from receiving electronic monitoring credit for the first period of his release because he  



                                                                                                                                      

committed new crimes - fourth-degree assault and fourth-degree criminal mischief.  



                                                                                                                                

These charges were dismissed as part of a plea bargain.  But AS 12.55.027(d) does not  



                                                                                                                          

speak of a defendant's conviction of a new crime while on electronic monitoring.  Rather,  



                                                                                                    

the statute speaks of a defendant's commission of a new crime.  



                                                                                                                          

                    Thus, for purposes of deciding whether Thompson is eligible to receive  



                                                                                                                           

credit for his first period of electronic monitoring, the State must be allowed to litigate  



                                                                                                               

whether Thompson did in fact commit either fourth-degree assault or  fourth-degree  



                                                                                                                               

criminal mischief (or both) during that first period of electronic monitoring release.  



                                                              -  11 -                                                         2595
  


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

                                     The State                   must produce evidence showingthat                                                                 Thompson committed these                                       



crimes.    But this is only a burden of production, not a burden of ultimate persuasion.                                                                                                                                                           



Moreover,   the   State   need   not   actually   prosecute   Thompson   for   these   crimes   by  



presenting witnesses.                                       Instead, as is the case at a probation or sentencing hearing, the                                                                                                          



State may rely on                                     hearsay reports or other forms of evidence that are shown to be                                                                                                                    



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



                                     Once the State has come forward with a                                                                        prima facie                          case that Thompson        



committed the crimes, the burden shifts to Thompson to prove, by a preponderance of                                                                                                                                                       



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



and   that   he   did   not   commit   either   fourth-degree   assault   or   fourth-degree   criminal  

mischief. 14  



                   Conclusion  



                                     We  AFFIRM the superior court's ruling that Thompson's non-criminal  

                                                                                                                                                                                                             



violations of his conditions of bail release do not disqualify him from receiving credit for  

                                                                                                                                                                                                                                        



the time he spent on electronic monitoring.  

                                                                                                                        



                                     However, we REMAND this case to the superior court with directions to  

                                                                                                                                                                                                                                           



allow the State to litigate whether Thompson committed the  crimes of fourth-degree  

                                                                                                                                                                                                          



assault  and  fourth-degree  criminal  mischief  during  his  first  period  of  electronic  

                                                                                                                                                                                                                   



monitoring release.  

                                                       



                                     If the State presents a prima facie  case that Thompson committed these  

                                                                                                                                                                                                                                  



crimes while on electronic monitoring,  and if Thompson does  not  then prove by a  

                                                                                                                                                                                                                                            



preponderance of the evidence that he did not commit these crimes, then Thompson is  

                                                                                                                                                                                                                                           



          14       Cf.  AS 12.55.027(e) ("The defendant must prove by a preponderance of the evidence                                                                                                                     



that the credit claimed meets the requirements of this section.").                                                                                                         



                                                                                                                 -  12 -                                                                                                             2595
  


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

not eligible for electronic monitoring credit for his first period of release.                                                                                                                                                                                                                                                                                                                                See State v.                                                 



Bell, __ P.3d __, 2018 WL 1221458 at *2-4 (Alaska App. 2018).                                                                                                                                                                                                                                                                                                          



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