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Belknap v. State (7/27/2018) ap-2610

Belknap v. State (7/27/2018) ap-2610

                                                    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  



SHAWN GREGORY BELKNAP,  

                                                                  Court of Appeals No. A-12471  

                                   Appellant,                   Trial Court No. 3AN-14-2560 CR  



                          v.  

                                                                             O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                         No. 2610 - July 27, 2018  



                 Appeal  f                 

                              rom  the   Superior  Court,  Third  Judicial  District,  

                 Anchorage, Kevin M. Saxby, Judge.  



                 Appearances:    Lars  Johnson  (opening  brief)  and  Megan  R.  

                 Webb (reply brief), Assistant Public Defenders, and Quinlan  

                                    

                  Steiner, Public Defender, Anchorage, for the Appellant. Ann B.  

                                                                                         

                  Black, Assistant Attorney General, Office of Criminal Appeals,  

                                                                           

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

                                                                             

                  for the Appellee.  



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

                                                      

                  Superior Court Judge. *  



                  Judge   ALLARD,   writing   for   the   Court   and   concurring  

                  separately.  



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



Constitution and Administrative Rule 24(d).  


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

                       Pursuant to a plea agreement, Shawn Gregory Belknap was convicted of                                                       



                                                                                                                        1  

felony driving under the influence and sentenced to 3 years to serve.                                                                    

                                                                                                                            A few months  



                                                                                                                               

after his sentence was imposed, Belknap filed a pro se motion under AS 12.55.027(d)  



                                                                                                                                               

requesting sentencing credit for the time he spent on bail release under conditions that  



                                                                                                                                                 

included court-ordered electronic monitoring.  Belknap also requested that counsel be  



                                                                                                                                         

appointed to assist him in this litigation.  The superior court denied Belknap's request  



                                                                                                                                              

for counsel. The court ultimately granted Belknap's request for sentencing credit in part,  



                                                                                                                          

granting Belknap 62 days of credit out of the approximately 279 days of credit that he  



sought.  



                                                                                                                                          

                       Belknap now appeals, arguing that the superior court erred when it denied  



                                                                                                                                             

him the additional credit he sought.  Belknap also argues that the superior court erred  



                                                                                                                                             

when it denied his request for appointment of counsel.  For the reasons explained here,  



                                                                                                                               

we conclude that a post-judgment motion for sentencing credit under AS 12.55.027(d)  



                                                                                                                                                

is a critical stage of a criminal proceeding for which a defendant is entitled  to the  



                                                                                                                                                

assistance of counsel.  We therefore conclude that Belknap is entitled to re-litigate his  



                                                                                                                                   

request for the additional credit with the assistance of counsel that he was previously  



                                                                                                                                             

denied. Because Belknap's counsel may have additional evidence or arguments to offer  



                                                                                                                                                

in support of this request, we express no opinion as to whether Belknap is entitled to the  



                                                                  

additional sentencing credit he seeks.  



                                                             

           Background facts and prior proceedings  



                                                                                                                                     

                       Belknap was arrestedin March 2014 for felony driving under the influence,  



                                                                                                                                       

reckless driving, and driving while license revoked.  A month after his arrest, Belknap  



                                                                                                                                    

was  released  on  bail  under  conditions  that  included  24-hour  GPS-based  electronic  



      1    AS 28.35.030(n).  



                                                                      - 2 -                                                                 2610
  


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

monitoring supervision through a steel cuff monitor on Belknap's ankle. The bail order  

                                                                                                                             



restricted  Belknap  to  his  house,  with  limited  passes  for  work,  court,  and  medical  

                                                                                                                        



appointments.   Belknap was also required to carry a remote SCRAM breath alcohol  

                                                                                                                         



monitor, which would test Belknap's breath for the presence of alcohol at both scheduled  

                                                                                                                      



and random times throughout the day.   The SCRAM monitor was equipped with a  

                                                                                                                                   



separate  GPS  tracking  system and  facial  recognition  software  to  ensure  Belknap's  

                                                                                                                     



compliance  with  the  tests.                 Belknap  successfully  completed  62  days  without  any  

                                                                                                                              



violations of the conditions of his bail release while under this bail order.  

                                                                                                        



                    At Belknap's request, the trial court then modified Belknap's bail release  

                                                                                                                          



to  eliminate  the  24-hour  GPS-based  continuous  electronic  monitoring.                                         The  court  

                                                                                                                            



retained  the  SCRAM  breath  alcohol  monitoring.                               Under  this  modified  bail  order,  

                                                                                                                           



Belknap'smovementswereonly tracked intermittently, through theGPS-basedSCRAM  

                                                                                                                        



breath alcohol tests. Belknap's time at work was also directly supervised by a live third- 

                                                                                                                            



party custodian.  

          



                    Belknap  was  less  successful  on  these  modified  conditions.                                        After  

                                                                                                                           



approximately six months on the modified bail release program, Belknap failed two  

                                                                                                                               



different drug tests and he was remanded to custody for that reason.  Less than a month  

                                                                                                                           



later, Belknap was re-released on the same modified bail conditions, but subsequently  

                                                                                                           



remanded to custody again after another failed drug test.  

                                                                                 



                    On April 6, 2015, Belknap pleaded guilty to felony driving under the  

                                                                                                                                



influence pursuant to  a plea agreement,  and  he was sentenced  to  3  years to  serve.  

                                                                                                                           



Belknap was represented by privately retained counsel at his sentencing hearing.  

                                                                                                                



                     Shortly after Belknap was sentenced, the Alaska legislature enacted the  

                                                                                                                                



current version of AS 12.55.027(d), which allows trial courts to grant sentencing credit  

                                                                                                                            



to defendants who are on court-ordered electronic monitoring programs during their bail  

                                                                                                                               



                                                              -  3 -                                                        2610
  


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

             2  

release.   This sentencing credit is not available to defendants who commit "a criminal                                                



                                                                                            3  

offense" while on their electronic monitoring program.                                                                           

                                                                                               In most instances, a defendant's  



                                                                                                                                               

violation of a condition of release qualifies as a "criminal offense" for these purposes and  



                                                                                                                     4  

                                                                                              

precludes a defendant from receiving credit under AS 12.55.027(d). 



                                                                                                                                       

                       In July 2015, shortly before this new legislation went into effect, Belknap  



                                                                                                                                                

filed a pro se motion under the new statute. In that motion, Belknap sought credit for the  



                                                                                                                                            

approximately 279 days that he spent on pretrial bail release in his case.   The court  



                                                                          

refused to hear the pro se motion because Belknap was still represented by his private  



              5  

counsel.                                                                                                                                      

                 Belknap's private counsel was then permitted to withdraw, and the court then  



                                                      

accepted the pro se motion for filing.  



                                                                                                                                              

                       The State opposed Belknap's claim for credit on multiple grounds.  The  



                                                                                                                                             

State argued first that the statute could not be retroactively applied to Belknap. The State  



                                                                                                                                

also  argued  that  Belknap's  modified  monitoring  program  was  not  sufficiently  



      2     SLA   2015,   ch.   20,     1-3  (House  Bill  15).     The   effective   date   of   this   new  



legislation was August 12, 2015.                          See 2015 House Journal 1188.  



      3  

                                                                  

           AS 12.55.027(d) ("A court may grant credit against a sentence of imprisonment for  

                                                                      

time spent under electronic monitoring if the person has not committed a criminal offense  

while under electronic monitoring ..."); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018  

WL 1221458, at *5 (Alaska App. Mar. 9, 2018).  



      4    See AS 11.56.757(b) (violation of condition of release is a class B misdemeanor); see  

                                                                                                           

also Bell, 2018 WL 1221458 at *5; State v. Thompson, __ P.3d __, Op. No. 2595, 2018 WL  

         

1885671, at *2-5 (Alaska App. Apr. 20, 2018) (holding that a violation of conditions of  

                                                                                                                               

release did not qualify as a criminal offense for purposes of awarding sentencing credit under  

                                                                                                

AS 12.55.027(d) during the time in which the Alaska legislature had categorized this offense  

as a non-criminal violation).  



      5    See,   e.g.,  Ortberg v. State, 751 P.2d 1368, 1379 n.9 (Alaska App. 1988) (pro se  



pleadings are properly rejected by the court when a defendant is represented by counsel).   



                                                                      - 4 -                                                                 2610
  


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

comprehensive or  restrictive to  qualify  for  "electronic monitoring" for  purposes of  

                                                                                                                                 



AS 12.55.027(d). Lastly, the State argued that Belknap was ineligible for any sentencing  

                                                                                                                     



credit because he had violated the conditions of his release by ingesting illegal drugs  

                                                                                                                            



while on bail release.  

                      



                    The superior court held an evidentiary hearing on Belknap's request for  

                                                                                                                                



credit. At the evidentiary hearing, Belknap requested that counsel be appointed to assist  

                                                                                                                             



him in litigating his motion.   The superior court denied this request.   The court also  

                                                                                                                              



denied Belknap's request for a continuance, although the court allowed Belknap to  

                                                                                                                                 



submit additional materials after the hearing and the court also allowed Belknap to  

                                                                                                                                 



submit additional briefing.  

                             



                    The superior court subsequently issued a written order rejecting the State's  

                                                                                                                           



retroactivity argument and partially granting Belknap's motion for credit.  The court  

                                                                                                                             



concluded that Belknap was entitled to credit for the 62 days that he spent on bail release  

                                                                                                                          



under  the  24-hour  GPS-based  electronic  monitoring  program,  because  Belknap  

                                                                                                                       



successfully  completed  that  time  on  electronic  monitoring  without  violating  the  

                                                                                                                               



conditions of his release or otherwise committing a new criminal offense.  But the court  

                                                                                                                             



concluded that Belknap was not entitled to any credit for the time he spent on the  

                                                                                                                                



modified SCRAM-only monitoring program because the court found that this modified  

                                                                                                                       



program was not sufficiently comprehensive or  restrictive to qualify  as "electronic  

                                                                                                                   



monitoring" for purposes of AS 12.55.027(d). The court also noted that Belknap would  

                                                                                                                           



apparently be ineligible for that credit based on the violations of the conditions of his  

                                                                                                                                



release while on that modified program.  

                                                



                    Belknap  filed  a  motion  for  reconsideration,  arguing  that  the  modified  

                                                                                                                      



SCRAM-only  monitoring  program  was  sufficiently  restrictive  to  be  considered  

                                                                                                                   



"electronic  monitoring"  under  the  statute  because  Belknap  was  subject  to  multiple  

                                                                                                                        



                                                              -  5 -                                                        2610
  


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

random breath tests on a daily basis and those random breath tests also automatically                                                                                                                              



recorded his GPS location.                                                       According to Belknap, there was no functional difference                                                                                    



between the level of supervision provided by the original 24-hour GPS-based steel ankle                                                                                                                                                     



cuff monitoring program and the subsequent modified monitoring program.                                                                                                                           



                                       The superior court rejected this claim and denied Belknap's motion for                                                                                                                                     



reconsideration.   The court also noted that, even if the SCRAM-only program qualified                                                                                                                                           



as "electronic monitoring" under the statute, Belknap's illegal drug use while on that                                                                                                                                                          



program would make him ineligible for any credit for the time he spent on bail release                                                                                                                                                 

under that modified program.                                                          6  



                                                                                                                                                                                                                                      

                                       Belknap, now represented by the Alaska Public Defender Agency, appeals  



                                                                                                                                                                                                                                                 

the superior court's rulings, including the superior court's denial of his request for  



                                                                                                                             7  

                                                                                

counsel.  The State has not cross-appealed. 



                                                                                                                                                                                                                                  

                    Why we conclude that Belknap was entitled to the assistance of counsel in  

                                                                                            

                    litigating his request for credit  



                                                                                                                                                                                                                                                   

                                       On appeal, Belknap argues that the superior court erred when it denied his  



                                                                                                                                                                                                                                          

request for appointed counsel.  Belknap contends that a motion for sentencing credit  



                                                                                                                                                                                                                                   

under AS 12.55.027(d) should be considered a "critical stage" ofthe underlying criminal  



                                                                                                                                                                                                                                                     

action akin to sentencing because resolution of such claims directly affects the length of  



                                                                                                                          8  

                                                                                                               

time a defendant will have to serve in jail. 



          6        AS 12.55.027(d).  



          7         On appeal, the State argues that Belknap was not entitled to the 62 days of credit he  



                                                                                                                                                                                                                                                 

received.   Because the State did not cross-appeal the granting of this credit,  we  do  not  

address the State's arguments here.  



          8        See  Egelak  v.  State,  438  P.2d  712,  715  (Alaska  1968)  (criminal  defendant  has  

                                                                                                                                                                                      

                                                                                                                                                                                                                      (continued...)  



                                                                                                                       -  6 -                                                                                                               2610
  


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

                               In response, the State argues that a post-judgment motion for sentencing                                                                          



credit   is   not   a   "critical  stage"   of   the   underlying   criminal   action,   and   Belknap   was  



therefore not entitled to the assistance of counsel.                                                                    Instead, the State analogizes these                                   



court  proceedings   to   administrative   prisoner   disciplinary   proceedings   in   which   a  



defendant faces the loss of potential good-time credit based on his alleged misconduct     



while in jail.                  The State points out that prisoners are not entitled to counsel for these                                                                                     



administrative hearings even though resolution of those proceedings may also affect the                                                                                                             



amount of time that the prisoner will serve in jail.                                                        



                               We   find   this   analogy   inapt.     A   prisoner   disciplinary   proceeding   is   an  

administrative matter conducted under the authority of the Department of Corrections.                                                                                                                   9  



                                                                                                                                                                                                     

The proceeding is entirely separate from the prisoner's underlying criminal case and its  



                                                                                                                                                                                         10  

                                                                                                                                                                                              

                                                                                                                                                                         

focus is on whether the prisoner violated the facility's rules as a factual matter. 



                                                                                                                                                                                

                               In contrast, a motion for sentencing credit is filed as part of the defendant's  



                                                                                                                                                                                           

underlying criminal case and is litigated in the trial court.  The motion involves factual  



                                                                                                                                                                                                  

matters relating to other proceedings in the criminal case - specifically, the court's bail  



                                                                                                                                                                                                    

orders and the defendant's conduct while under those court orders.  In addition, it is the  



                                                                                                                                                                                                     

defendant who bears the burden of showing, by a preponderance of the evidence, that he  



                                                                                                          11  

                                                                                                                                                                          

is entitled to the sentencing credit he seeks.                                                                    Moreover, as this case demonstrates,  



                                                                                                                                                                           

resolution of the motion can involve complicated questions of statutory interpretation  



        8       (...continued)  



constitutional right to be present and to be assisted by counsel at every critical stage of a  

                                                                                                                                                                                                        

criminal proceeding).  



        9       See 22 Alaska Administrative Code (AAC) 05.400 et seq.  



        10      See McGinnis v. Stevens, 543 P.2d 1221, 1228-29 (Alaska 1979).  



        11      See AS 12.55.027(e).  



                                                                                                -  7 -                                                                                        2610
  


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

that an unrepresented defendant is ill-equipped to litigate.                                                                  Likewise, resolution of the                          



motion will often require supplementation of the factual record with materials from the                                                                                            



private electronic monitoring                                     agencies   that can                      be difficult for                   an   incarcerated   and  

unrepresented defendant to obtain.                                         12  



                                                                                                                                                                                       

                             In Shannon v. State, an unpublished memorandum, we recognized that a  



                                                                                                                                                                          

defendant  litigating  a  post-judgment  motion  to  reduce  sentence  would  face  similar  



                                                                                                                                                                    

difficulties, and we therefore concluded that defendants were entitled to the assistance  



                                                                                                                      13  

                                                                                                                                                                    

of counsel in litigating those post-judgment motions.                                                                        We also find the reasoning  



                                                                                                                                                                   

articulated by Chief Judge Bryner in his concurrence in Shannon particularly persuasive  



                                                                                                                     

and equally applicable to the circumstances presented here.  



                                                                                                                                                                       

                             As Chief Judge Bryner noted, a post-judgment motion to reduce sentence  



                                                                                                                                                     14  

                                                                                                                                                                                       

                                                                                                                                                          Instead "it is a  

is "neither detached from nor collateral to the original criminal case." 



                                                                                                                                                                           

component part of the original case and, as such, is available to the accused as a matter  



                    15  

                                                                                                                                                 

of right."                Chief Judge Bryner further noted that "[o]nce the right to counsel attaches  



                                                                                                                                                                                 

in a criminal case ... it attaches to the entire procedural constellation, not just to the trial  



        12     Cf. Donnelly v. State                       , 516 P.2d 396, 399 (Alaska 1973) (holding that the right to   



counsel extends to the initial pleading stage of applications for post-conviction relief because                                                                          

"[o]nly the presence of counsel will assure that meritorious claims will be fairly presented                                                                          

and full advantage taken of the procedures").  



        13  

                                                                                                                        

              Shannon  v.  State,  1995  WL  17220757,  at  *1-2  (Alaska  App.  Mar.  29,  1995)  

                               

(unpublished) (concluding that the right to counsel for a post-judgment motion to reduce  

                                                                                                                                         

sentence "is at least as basic a right as the right to the assistance of counsel in presenting an  

initial application for post-conviction relief").  



        14    Id. at *2 (Bryner, C.J., concurring).  



        15    Id.  



                                                                                        -  8 -                                                                                2610
  


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

               16  

proper."            He therefore concluded that the right to counsel should apply to a timely post-                                             



judgment motion for reduction of sentence, just as it does to other parts of a defendant's                                         

criminal case.           17  



                                                                                                                                          

                        We agree with Chief Judge Bryner that the right to counsel in a criminal  



                                                                                                                                                 

case  necessarily  extends  to  post-judgment  motions  in  that  criminal  case.                                                        We  also  



                                                                                                                                          

conclude that motions for sentencing credit are no less integral to the underlying criminal  



                                                                                                                                         

case than the motion to reduce sentence at issue in Shannon. Accordingly, we conclude  



                                                                                                                                                

that an indigent defendant is entitled to the assistance of counsel when litigating a post- 



                                                                       

judgment claim for credit for electronic monitoring.  



                                                                                                                                                    

                        We note that, in most instances, a defendant will already be represented by  



                                                                                                                                             

counsel at the time these motions are filed.  Belknap's case is unusual in this regard  



                                                                                                                                           

because he was represented by private counsel at sentencing, but he apparently became  



                                                                                                                                        

unable to pay for his private counsel. The private attorney was then allowed to withdraw  



                                                                                                                                                  

when Belknap filed his pro se motion for sentencing credit, apparently without any  



                                                                                                             

inquiry into whether Belknap was now eligible for appointed counsel.  



                                                                                                                                       

                        Having determined that the superior court erred when it refused Belknap's  



                                                                                                                                                  

request for appointed counsel, we now turn to the State's alternative argument that this  



                                                                                                                                                   

 error was harmless beyond a reasonable doubt because Belknap is not entitled to the  



                                                                                                                                               

credit he seeks as a matter of law.  Belknap argues that deprivation of counsel in these  



                                                                                                                                                   

circumstances can never be harmless and should be recognized as structural error.  



                                                                                                                                         

                        We conclude that we need not resolve that issue here, because we conclude  



                                                                                                                                   

that  there  are  enough  questions  remaining  regarding  the  nature  of  the  supervision  



      16    Id.  



      17    Id. at *3.  



                                                                        -  9 -                                                                 2610
  


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

provided under the SCRAM-only monitoring to make the proper outcome of this case  



unclear.  Although the attorneys on appeal have done an admirable job in litigating the  

                                                                                                                           



complicated legal issues raised by Belknap's request for credit, their advocacy has  

                                                                                                                          



necessarily been limited by the existing factual record, which does not provide a clear  

                                                                                   



picture of the day-to-day supervision and GPS tracking provided by the SCRAM-only  

                                                                                                           



monitoring.  It may be that, after consultation with counsel, Belknap has no additional  

                                                                            



facts or legal arguments to offer in support of his claim for the additional sentencing  

                                                                                                                



credit.  But we are unwilling to conclude that Belknap's claim fails as a matter of law  

                                                                                                                           



without giving him the opportunity to re-litigate his claim with the assistance of counsel  

                                                                                                                     



that he was erroneously denied.  

                                     



          Conclusion  



                    We VACATE the portion of the superior court's order denying Belknap  

                                                                                                                    



sentencing credit for the time spent on the SCRAM-only monitoring program, and we  

                                                                                                       



REMAND this case to the superior court for further proceedings consistent with this  

                                                                                                                          



decision.  



                                                           -  10 -                                                      2610
  


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

Judge ALLARD, concurring.                             



                                        I agree that Belknap should be given an opportunity to litigate his claim for                                                                                                                                        



the sentencing credit with the assistance of counsel.                                                                                                          I write separately only to provide                                              



additional guidance on some of the legal issues presented by this case.                                                                                                                             



                                        Belknap is correct that there is no definition of "electronic monitoring" in   



the statute. However, Belknap misreads the legislative history on this matter. On appeal,                                                                                                                                                        



Belknap points to various committee minutes in which the legislature discussed, but did                                                                                                                                                                     



not decide, whether "electronic monitoring," for purposes of AS 12.55.027(d) should be                                                                                                                                                                         



restricted   to   the   traditional   steel   cuff   ankle   monitor   used   by   the   Department   of  



                                     1  

Corrections.                                                                                                                                                                                                                                                

                                            But these discussions were framed in terms of not wanting to limit the  



                                                                                                                                                                                                                                                               

courts if there were technological advancements that could provide the same level of  



                                                                                                                                                                                                                                  

supervision as provided by the traditional steel cuff monitor.  Thus, in those discussions,  



                                                                                                                                                                                                                                                                  

the sponsor of the bill, Rep. Tammie Wilson, explained that the bill did not include a  



                                                                                                                                                                                                                                                           

specific definition of "electronic monitoring" because the technology kept advancing and  



                                                                                                                                                                                                                                       

she did not want to limit the courts in deciding which technology to use in a particular  



               2  

case.                                                                                                                                                                                                                                                           

                     There is nothing in those discussions to suggest that the legislature was willing to  



                                                                                                                                                                                                                                                           

approve  an  electronic  monitoring  system  that  provided  less  supervision  than  the  



                                                                                                                                                                                                                                                          

supervision  provided  by  the  traditional  steel  cuff  ankle  monitoring  used  by  the  



                                             

Department of Corrections.  



                                                                                                                                                                                                                                       

                                        Instead, as the State points out, there are other discussions in the legislative  



                                                                                                                                                                                                                                                                

history suggesting that the legislature was only interested in granting sentencing credit to  



             1        See  Minutes of House Judiciary Comm., House Bill 15, Remarks of Rep. Gabrielle                                                                                                                       



   LeDoux and Rep. Tammie Wilson, 01:36:33-01:38:00 (Mar. 18, 2015).  



             2        Id.  



                                                                                                                           -  11 -                                                                                                                    2610
  


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

monitoring systems that were at least as reliable and as accurate as the traditional 24-hour                                                                



GPS-based steelcuffankle                            monitoring system. For                        example, the legislaturedismissed                                  the  



idea that credit could be given to a person whose movements were tracked by a smart                                                                             



                                           3  

                                                                                                                                               

phone's   GPS   system.                          The  legislature  concluded  that  such  a  system would  not  be  



                                                                                                                                                            

sufficiently reliable because the defendant could easily circumvent the systemby handing  



                                                        4  

                                          

the phone to another person. 



                                                                                                                                                                  

                          The legislature likewise rejected an amendment proposed by Rep. Les Gara  



                                                                                                                                                            

that would haveextended sentencing credit todefendants who weremonitored by24-hour  



                                                    5  

                                                                                                                                                               

live third-party custodians.                           Rep. Gara proposed this amendment because there are places  



                                                                                                                                                                         6  

                                                                                                                                                                             

in rural Alaska that do not have adequate GPS coverage to support electronic monitoring. 



                                                                                                                                                         

Although various legislators expressed concerns about the fact that some rural Alaskans  



                                                                                                                                                       

would be  excluded  from the benefits of AS 12.55.027(d),  the legislature ultimately  



                                                                                                                                                                       

rejected the amendment, concluding that third-party custodians were not as reliable as  



                                                                                                                                                                      

electronic  monitoring  and  that  third-party  custodians  could  not  provide  the  kind  of  



                                                                                                                                                                         7  

                                                                                                                                                                             

instantaneous reporting of location violations that a 24-hour GPS-based system could. 



        3      See   Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie                                                       



  Wilson, Remarks of Rep. Lynn Gattis, Remarks of Nancy Meade, General Counsel, Alaska                        

  Court System, 02:35:49-02:45:37 (Apr. 10, 2015).  



        4      See Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Lynn Gattis,  

                                                                                                                                           

  02:45:25-02:45:37 (Apr. 10, 2015).  



        5      Minutes  of  House  Finance  Comm.,  House  Bill  15,  Remarks  of  Rep.  Les  Gara,  

                                                                                                                                             

  02:31:14-02:31:23, 02:46:54-02:47:30 (Apr. 10, 2015).  



        6      Id. at 02:13:30-02:14:22.  



        7      Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie Wilson,  

                                                                                                                                   

  02:33:54-02:34:55; Testimony of Nancy Meade, General Counsel, Alaska Court System,  

                                                                                

                                                                                                                                                  (continued...)  



                                                                                -  12 -                                                                          2610
  


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

                                                            Given this legislative history, it appears that Belknap faces an uphill battle                                                                                                                                                                                                                                     



in demonstrating that the modified SCRAM-only monitoring program was sufficiently                                                                                                                                                                                                                                                                   



comprehensive to qualify as "electronic monitoring" under AS 12.55.027(d).                                                                                                                                                                                                                                                                              I also note                 



that Belknap's apparent drug use while on the modified SCRAM-only program presents                                                                                                                                                                                                                                                                                 



a separate obstacle that Belknap must also overcome before he can be found eligible for                                                                                                                                                                                                                                                                                                    

the additional sentencing credit he seeks.                                                                                                                                               8  



               7              (...continued)  



    02:45:55-02:46:09 (Apr. 10, 2015).  



                   8              AS 12.55.027(d) ("A court may grant credit against a sentence of imprisonment for   



    time spent under electronic monitoring if the person has not committed a criminal offense                                                                                           

    while under electronic monitoring ..."); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018  

                      

    WL 1221458, at *5 (Alaska App. Mar. 9, 2018) (explaining that the State bears the burden  

                                                                                                                                   

    of  production  regarding  any alleged  new  criminal  offenses  but  the  defendant  bears  the  

    ultimate burden of persuasion).  



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