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Tanner v. State (12/14/2018) ap-2628

Tanner v. State (12/14/2018) ap-2628

                                                                               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                                                     



JAMES  PATRICK  TANNER,  

                                                                                                                                                

                                                                                                      Court of Appeals No. A-12617  

                                                                                                                                                             

                                                      Appellant,                                    Trial Court No.  1KE-96-656 CR  



                                        v.  

                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                 

STATE  OF  ALASKA,  



                                                      Appellee.                                 No. 2628 - December  14, 2018  

                                                                                                                                                       



                           Appeal   from  the   Superior   Court,  Third  Judicial                                                 District,  

                                                                                                                                  

                           Anchorage, Paul E. Olson, Judge.  

                                                                              



                           Appearances:                  Lars  Johnson  (opening  brief)  and  Emily  Jura  

                                                                                                                                           

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

                                                                                                                                     

                           Public  Defender,  Anchorage,  for  the  Appellant.                                              Kenneth M.  

                                                                                                                                              

                           Rosenstein,  Anchorage,  under  contract   with  the  Office  of  

                                                                                                                                              

                           Criminal  Appeals,  and  Jahna  Lindemuth,  Attorney  General,  

                                                                                                                                  

                           Juneau, for the Appellee.  

                                                                            



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

                                                                                                                                  

                           Superior Court Judge.*  

                                                                        



                                                                                                      

                           Judge MANNHEIMER, writing for the Court.  

                                                                                   

                           Judge ALLARD, concurring.  



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



Constitution and Administrative Rule 24(d).                             


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

                            In   1997, James Patrick Tanner pleaded guilty to two counts of second-                                                                 



degree   sexual   abuse   of   a   minor.     He   received   a   composite   sentence   of   20   years'  



imprisonment with 10 years suspended, and he was placed on probation for 10 years                                                                                        



                                                                      1  

following his release from prison.                                        



                            The current appeal arises from the fact that the superior court later revoked  

                                                                                                                                                                    



Tanner's probation, and Tanner was released on bail pending his appeal of the superior  

                                                                                                                                                                    

                                   2   When the superior court granted Tanner's request to be released on  

court's decision.  

                                                                                                                                                                               



bail, the court imposed a requirement of electronic monitoring.  

                                                                                                                                    



                            Tanner's  contract  with  the  electronic  monitoring  company  generally  

                                                                                                                                                                 



required  him  to  remain  at  home,  but  the  contract  listed  various  exceptions  to  this  

                                                                                                                                                                            



requirement - various reasons why Tanner would be allowed to leave his home.  One  

                                                                                                                                                                           



of the listed reasons was grocery shopping.  

                                                                                            



                            After the parties discussed the terms of this contract with the superior court,  

                                                                                                                                                                         



the court adopted the terms of the contract as conditions of Tanner's bail release.  

                                                                                                                                                                           



                            Later,  while Tanner was on bail release,  the State again petitioned the  

                                                                                                                                                                              



superior court to revoke Tanner's probation (for a new violation).  Following a hearing,  

                                                                                                                                                                   



the superior court found that Tanner had, in fact, violated his probation.  Based on this  

                                                                                                                                                                             



new violation, the court imposed 90 days of Tanner's previously suspended jail time.  

                                                                                                                                                                                     



                            Tanner later filed a motion seeking credit against this sentence for the 212  

                                                                                                                                                                             



days that he had spent on electronic monitoring.  

                                                                                                      



       1      See Tanner v. State                      , unpublished, 1997 WL 796501 (Alaska App. 1997) (sentence                                                



appeal);   Tanner v. State                      , unpublished,                2000   WL 1593662 (Alaska App. 2000) (appeal of                                                   

denial of post-conviction relief).                                



       2  

                                                                                                                                                                         

              This Court ultimately affirmed the superior court's decision; see Tanner v. State,  

                                                                                                          

unpublished, 2016 WL 5335672 (Alaska App. 2016).  



                                                                                      - 2 -                                                                                2628
  


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

                                                                                                                  

                    The  statute  that  governed  Tanner's  credit  for  electronic  monitoring,  



                                                                                                                            

AS 12.55.027(d),  stated that a defendant could receive this credit only  if "the court  



                                                                                                                            

imposes restrictions on the [defendant's] freedom of movement and behavior while under  



                                                                                                                                

the electronic monitoring program", and only if these restrictions include "requiring the  



                                                                                                                         

[defendant] to be confined to a residence except for a (1) court appearance; (2) meeting  



                                                                                                                       

with  counsel;  or  (3)  ...  employment,  attending  educational  or  vocational  training,  



                                                                                                                         

performing community volunteer work, or attending a rehabilitative activity or medical  



                        

appointment."  



                                                                                                                      

                    The superior court noted that, because the conditions of Tanner's electronic  



                                                                                                                               

monitoring allowed him  to  leave his home to go grocery shopping,  it appeared that  



                                                                                                                 

Tanner's electronic monitoring was not sufficiently restrictive to meet the requirements  



                                                                                                                       

of  the  statute.          In response,  Tanner argued that grocery shopping was an essential  



                                                                                                                             

activity, and thus the statute should be construed to implicitly allow defendants to leave  



                                                                                                                         

their residence to go grocery shopping.   In the alternative, Tanner argued that grocery  



                                                                                                    

shopping qualified as a "rehabilitative activity" under the statute.  



                                                                                                                     

                    After  hearing argument  on  these  matters,  the  superior  court  ultimately  



                                                                                                                               

rejected both of Tanner's arguments:   the court ruled that AS 12.55.027(d) did not  



                                                                                                                         

contain an implicit exception for grocery shopping,  and the court ruled that grocery  



                                                                                                                                     

shopping did not qualify as a "rehabilitative activity" for purposes of AS 12.55.027(d).  



                                                                                                                                

Thus, the court concluded, Tanner was not entitled to credit against his sentence for the  



                                                              

time he spent on electronic monitoring.  



                                                                                              

                    Tanner now appeals the superior court's ruling.  



                                                                                                                       

                    Tanner argues  that,  unless AS 12.55.027(d) is interpreted as implicitly  



                                                                                                                          

allowing defendants to leave home to go grocery shopping, the statute "leads to absurd  



               

results".  



                                                               - 3 -                                                          2628
  


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

                                                                                                                               

                    We agree with Tanner that life is more complicated and inconvenient for  



                                                                                                                               

defendants who cannot leave their home to do their own grocery shopping,  and we  



                                                                                                                               

further agree that it would be reasonable for the legislature to expand the scope of the  



                                                                                                                       

statute to allow defendants to occasionally leave their homes to buy groceries.  



                                                                                                                       

                    But  the  legislature  could  validly  draw  a  distinction  between  grocery  



                                                                                                                   

shopping and the appointments and activities expressly listed in the statute.  



                                                                                                                                  

                    As we have explained, AS 12.55.027(d) states that a court cannot give a  



                                                                                                                      

defendant credit for time spent on electronic monitoring unless the defendant's absences  



                                        

from home are limited to:  



                         

          *    court appearances,  



                                      

          *    meetings with counsel,  



                                                                                

          *    employment, or educational or vocational training,  



                                                 

          *    community volunteer work,  



                                                          

          *    rehabilitative activities, and  



                             

          *    medical appointments.  



                                                                                                                                 

                    The factor that distinguishes these activities from "grocery shopping" is  



                                                                                                                        

that,  when a defendant leaves home to engage in the activities  listed in the statute,  



                                                                                                                                  

someone will be expecting the defendant to show up at a particular place,  and at a  



                                                                                                                               

particular time.  Thus, if the defendant does not show up, or if the defendant does not  



                                                                  

show up on time, someone will take note.  



                                                                                                                                

                    For this reason, we conclude that it was not absurd for the legislature to  



                                                                                                                            

omit grocery shopping from the statutory list of a defendant's allowed absences from  



                   

their home.  



                                                                                                                                 

                    This  leaves  Tanner's  argument  that  grocery  shopping  constitutes  a  



                                                                               

"rehabilitative activity" for purposes of the statute.  



                                                              - 4 -                                                          2628
  


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

                        The pertinent dictionary definition of "rehabilitate" is "to prepare ...                                                         an  



inmate ... for useful employment or successful integration into society                                                            by counseling,   

                         3   Most people would not consider grocery shopping to constitute a form  

training, etc."                                                                                                                                      



of rehabilitative "counseling" or "training".  

                                                                                



                        We note,  as well,  that the statute refers to this authorized purpose for  

                                                                                                                                                        



leaving home as "attending a rehabilitative activity".  The legislature's use of the word  

                                                                                                                                                     



"attend" is a further indication that the legislature was referring to defendants who enroll  

                                                                                                                                                    



in scheduled sessions of counseling or training - as opposed to defendants who leave  

                                                                                                                                                    



their homes for an unspecified destination, and for an unspecified length of time, to go  

                                                                                                                                                         



shopping for groceries.  

                                           



                        It  is  true,  as  Tanner  notes  in  his  brief,  that  when  the  legislature  was  

                                                                                                                                                      



formulating the current version of AS 12.55.027(d), they spent a considerable amount  

                                                                                                                                                



of time discussing the equivalent electronic monitoring program run by the Department  

                                                                                                                                        



of Corrections - a program under which convicted prisoners are released on electronic  

                                                                                                                                             



monitoringunder modified house arrest, rather than being housed in correctionalcenters.  

                                                                                                                                                                



Under the Department of Corrections' electronic monitoring  program,  prisoners get  

                                                                                                                                                        



weekly passes that authorize them to leave their homes to handle personal errands, such  

                                                                                                                                                      



as grocery shopping.  

                                        



                        But  despite  this  legislative  discussion,  the  statute  that  the  legislature  

                                                                                                                                           



ultimately enacted is more restrictive than the Department of Corrections' electronic  

                                                                                                                                            



monitoring program.   AS 12.55.027(d) specifies the limited circumstances in which a  

                                                                                                                                                            



defendant may be absent from their home and still get sentencing credit for the time they  

                                                                                                                                                      



spend on electronic monitoring.  This limited list does not include passes that authorize  

                                                                                                                                             



a defendant to leave their home to run personal errands.  

                                                                                                         



      3      Webster's New World College Dictionary                                    (Fourth Edition, 2004), p. 1208.                         



                                                                           - 5 -                                                                      2628
  


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

                                                                      For   these reasons, we reject Tanner's contention that grocery shopping                                                                                                                                                                                                                                                                      



constitutes a "rehabilitative activity" for purposes of AS 12.55.027(d).                                                                                                                                                                                                                                                                                                        



                                                                      The judgement of the superior court is AFFIRMED.                                                                                                                                                                                                                                     



                                                                                                                                                                                                                       - 6 -                                                                                                                                                                                                                  2628
  


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

Judge ALLARD, concurring.                                                           



                                                                 I   agree   with   the   majority   decision   that   Tanner's   electronic   monitoring  



program was insufficiently restrictive to qualify for                                                                                                                                                                                                        credit under AS 12.55.027(d).                                                                                                                               I  



write separately only to make clear that, in my view, our decision is limited to the facts                                                                                                                                                                                                                                                                                                                 



presented in this case and that a defendant whose                                                                                                                                                                                                        monitoring program includes very                                                                                                                   



limited   and   highly   circumscribed   passes   specifically   to   obtain   groceries   (or   other  



 essential items of daily living such as medication) should not necessarily suffer the same                                                                                                                                                                                                                                                                                                              



disqualification.  



                                                                 In its briefing, the State concedes that "[t]he legislature probably intended                                                                                                                                                                                                                                            



that defendants on electronic monitoring receive credit against their sentences when they                                                                                                                                                                                                                                                                                                                     



receive   passes   to   go   grocery   shopping."     The   State   bases   this   concession   on   the  



underlying purpose of AS 12.55.027(d), which is "to facilitat[e] independent living" and                                                                                                                                                                                                                                                                                                                         



help defendants get "back on track" by allowing them to "gain access to community-                                                                                                                                                                                                                                                                                     



based   treatment,   maintain   employment,   access   diverse   medical   treatment,   perform  

                                                                                                                                                                                                                                                                                                                                                               1                 The  State  

community   service   work,   and   begin   the   process   of   reintegration."                                                                                                                                                                                                                                                                                                                      



nevertheless argues that passes for grocery shopping are prohibited because they are not  

                                                                                                                                                                                                                                                                                                                                                                                                                   



 specifically enumerated in the statute.  

                                                                                                                                                 



                 1               Minutes   of   House   Judiciary Comm.,                                                                                                                                         House   Bill   15,   statement   of   Representative  



Tammie Wilson (Feb. 20, 2015 at 1:56:23 p.m.); Minutes of House Judiciary Comm., House                                                                                                                                                                                                                                                                                                                

Bill 15, statement of Representative Tammie Wilson (Mar. 18, 2015 at 1:08:07 p.m.) (goal                                                                                                                                                                                                                                                                                                                   

of electronic monitoring is to allow "defendants to keep their jobs, and receive treatment,                                                                                                                                                                                                                                                                                         

while awaiting trial to help them get back on track").                                                                                                                                                     



                                                                                                                                                                                                        - 7 -                                                                                                                                                                                                   2628
  


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

                                 But   our   underlying   goal   when   we   construe   a   statute   is   to   determine  



                                                                                                                                                     2  

legislative intent and,                                if possible,                  to implement that intent.                                                                                                     

                                                                                                                                                           We are also required to  

                                                                                                     3    Although AS 12.55.027(d) does not directly  

                                                                                                                                                                                                      

construe statutes to avoid absurd results. 



refer to grocery shopping, the statute does refer to passes for "attending a rehabilitative  

                                                                                                                                                                                       



activity or medical appointment."  Presumably a pass to attend a medical appointment  

                                                                                                                                                                                          



would also include a pass to obtain the medication prescribed at such an appointment.  

                                                                                                                                                                                                                          



And if a person is permitted to go to a pharmacy to obtain medication, it is not clear why  

                                                                                                                                                                                                              



the person should not be permitted to go to the grocery store to obtain the nutritional  

                                                                                                                                                                                               



sustenance required to perform all of the other rehabilitative activities contemplated by  

                                                                                                                                                                                                                  



the statute.  

          



                                  The majority opinion rejects the notion that grocery shoppingcan constitute  

                                                                                                                                                                                                 



a "rehabilitative activity" on the ground that a person does not "attend" such an event.  

                                                                                                                                                                                                                           



But I see no reason why a limited pass to go grocery shopping cannot be structured to  

                                                                                                                                                                                                                   



ensure  the  same  sort   of  accountability  and  oversight  present  in  other  types  of  

                                                                                                                                                                                                                 



rehabilitative activities.  

                                  



                                 However, here, the record indicates that Tanner was permitted essentially  

                                                                                                                                                                                               



four hours of unregulated passes a week under the terms of his electronic monitoring  

                                                                                                                                                                                             



contract.  Although the parties repeatedly referred to this free time as time set aside for  

                                                                                                                                                                                                                 



"grocery shopping," the reality is that there were very few restrictions on Tanner's use  

                                                                                                                                                                                                                



        2        Brown v. State                      , 404 P.3d 191, 193 (Alaska App. 2017);                                                           Y.J. v. State                , 130 P.3d 954,           



959 (Alaska App. 2006).                                      



        3       Miller   v.   State ,   382   P.3d 1192,                                            1197   (Alaska App.                             2016)   ("A court                         should not   



construe statutes in a way that leads to unfair or incongruous results, or in a manner which                                                                                                              

yields results that are inexplicably draconian or that have no discernible purpose.") (internal                                                                                                      

citations omitted);                           Williams v. State                        , 853 P.2d 537, 538 (Alaska App. 1993) ("[A] court is                                                                        

obliged to avoid construing statutes in a way that leads to patently absurd results or to defeat                                                                                                          

of the obvious legislative purpose behind the statute.") (internal citations omitted).                                                                                                              



                                                                                                       - 8 -                                                                                                  2628
  


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

of this time.                                                               Indeed, Tanner's personal log indicates that he spent a significant amount                                                                                                                                                                                                                                                                                                                                                        



of this time at a car repair shop with multiple visits on multiple days to this same shop,                                                                                                                                                                                                                                                                                                                                                                                                                                



apparently due to recurring mechanical problems with his car.                                                                                                                                                                                                                                                                                                            



                                                                                    Given the record before us, I agree with the majority that Tanner is not                                                                                                                                                                                                                                                                                                                                                                            



entitled to credit against his sentence under AS 12.55.027(d), but I also believe that our                                                                                                                                                                                                                                                                                                                                                                                                                                              



decision should be read narrowly and limited to the specific facts presented here.                                                                                                                                                                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                                 - 9 -                                                                                                                                                                                                                                                             2628
  

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