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Fox v. State (2/1/2019) ap-2633

Fox v. State (2/1/2019) ap-2633

                                                          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  



WILSON WILLIAM FOX,  

                                                                           Court of Appeals No. A-12640  

                                       Appellant,                         Trial Court No. 4BE-13-273 CI  



                              v.  

                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                       Appellee.                           No. 2633 - February 1, 2019  



                    Appeal fr               

                                 om the Superior Court, Fourth Judicial District, Bethel,  

                                            

                    Charles W. Ray Jr, Judge.  



                                          

                    Appearances: Megan M. Rowe, Denali Law Group, P.C., under  

                                                          

                    contract with the Office of Public Advocacy, Anchorage, for the  

                                                                                        

                    Appellant.  John K. Bodick, Assistant Attorney General, Office  

                                        

                    of   Criminal   Appeals,   Anchorage,   and   Jahna   Lindemuth,  

                    Attorney General, Juneau, for the Appellee.  



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

                                                            

                    Superior Court Judge. *  

                                                      



                    Judge ALLARD.  



                    Wilson   William   Fox   appeals  the   superior   court's   dismissal   of   his  



application for post-conviction relief.                  Fox argues that the superior court erred when it     



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



Constitution and Administrative Rule 24(d).  


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

upheld the Alaska Parole Board's decision to deny him 18 days of credit against his                                                          



                1  

sentence.                                                                                                                    

                   For the reasons explained here, we affirm the superior court's ruling.  



                                                            

           Background facts and prior proceedings  



                                                                                                                                             

                       In 1983, Wilson William Fox was convicted of second-degree murder and  



                                                                                                                                                    

sentenced to 60 years with 30 years suspended (30 years to serve) and 5 years' probation.  



                                                                                                                                         

In 2007, Fox was released on mandatory parole. Approximately a year later, Fox tested  



                                                                                                                                    

positive for marijuana on two separate occasions.  The two positive drug tests occurred  



                                                                                                                                             

less than a month apart.  The second time that Fox tested positive for marijuana, his  



                                                                                                                                                

parole  officer  gave  Fox  the  choice  of  either  (1)  residing  at  the  Tundra  Center,  a  



                                                                                                                                       

community  residential  center  (CRC),  or  (2)  having  the  parole  officer  file  a  parole  



                                                                                                                                    

violation report - in which case Fox would be arrested and he would face possible  



                                                                   

revocation of his parole and additional incarceration.  



                                                                                                                                     

                      Fox chose to live temporarily at the Tundra Center, although he actively  



                                                                                                                                          

sought approval from his probation officer for alternative housing. After about 18 days,  



                                                                                                                            

Fox was allowed to leave the Tundra Center to stay at his grandmother's house.  



                                                                                                                                        

                      Approximately two years later, in 2010, Fox wrote to the parole board  



                                                                                                                                             

requesting that he receive credit against his sentence for the 18 days he spent at the  



                                                                                                 

Tundra Center.  The parole board did not respond to this request.  



                                                                                                                                                    

                       In 2013, Fox's parole was revoked based on his consumption of alcohol.  



                                                                                                                                       

At the final parole hearing, the parole board granted Fox a discretionary parole release  



                                                                                                                                    

subject to his successful completion of a residential substance abuse treatment program  



                                                                                                                                

while he was incarcerated.  The parole board ultimately granted Fox credit against his  



      1    Fox also raises another claim on appeal related to the parole board's authority to set                                         



a precondition for release on discretionary parole. Shortly                                 after this appeal was initially filed,  

Fox was released from incarceration, rendering this claim moot.  



                                                                     - 2 -                                                               2633
  


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

sentence for time he spent at various facilities, (including a different stint at the Tundra                                                                             



Center), but the board denied Fox credit for the 18 days at issue here.                                                                   



                            Fox filed an application for post-conviction relief in the superior court,                                                                      



arguing,  inter alia                    , that he was entitled to these extra 18 days of credit under                                                                   State v.   



                   2  

                                                                                                                                                                        

Shetters.             The State argued that Fox was not entitled to this credit under Shetters because  



                                                                                                                                                                               

Fox had voluntarily agreed to stay at the Tundra Center, and he had not been placed there  



                                                            3  

                                                                                                                                                                           

by order of the parole board.                                   An evidentiary hearing was held, and both parties moved  



                                                                                               

for summary disposition on Fox's claim for credit.  



                                                                                                                                                                           

                             The  superior  court  subsequently  issued  an  order  affirming  the  parole  



                                                                                                                                                                                    

board's denial of Fox's request for credit.  In reaching this decision, the court relied on  



                                                                                    4  

                                                                                                                                                                                 

our prior decision in State v. Fortuny.                                                  In Fortuny, we held that a defendant is not  



                                                                                                                                                                  

entitled to Nygren  credit for the time the defendant spent voluntarily at a residential  



                                                                                                                                                                           5  

                                                                                                                                                                                

treatment  program without  a  court  order  placing  the  defendant  in  treatment.                                                                                             We  



reasoned that, without a court order requiring him to be there, the defendant could not  



                                                                                                                                                                                    

be considered to be subject to conditions approximating incarceration for purposes of  



       2      State v. Shetters, 246 P.3d 332, 337-38 (Alaska App. 2010) (holding that a parolee is   



entitled to day-for-day plus good time credit for the time spent at a CRC if the parolee has     

been ordered to reside at the CRC by the parole board).  



       3      The State also argued that Fox's application was untimely and that Fox was required  

                                                                                                                                     

to file a grievance followed by an application for post-conviction relief after the parole board  

                                                                                                                                               

did not respond to his initial request for credit.   The superior court did not address this  

                                                                                                       

timeliness question in its ruling, and we need not address it in this decision.  



       4      State v. Fortuny, 42 P.3d 1147 (Alaska App. 2002).  



       5      Fortuny, 42 P.3d at 1149-50; see also State v. Judson, 45 P.3d 329, 332 (Alaska App.  

                                                                                                                            

2002); Anchorage v. Bussell , 702 P.2d 667, 668-69 (Alaska App. 1985); Nygren v. State, 658  

P.2d 141 (Alaska App. 1983).  



                                                                                       -  3 -                                                                                 2633
  


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

obtaining  Nygren  credit because the defendant was free to leave the treatment program                                           

at any time.       6  



                                                                                                                                        

                      In its ruling in the present case, the superior court acknowledged that there  



                                                                                                                                         

is a difference between a treatment program and a CRC because a defendant cannot stay  



                                                                                                                                            

at a CRC without some affirmative action by the court, the parole board, or a parole or  



                                                                                                                                          

probation officer. But the court concluded that the underlying reasoning of Fortuny still  



                                                                                                                                    

applied - that a defendant who voluntarily chose to reside at the CRC was not subject  



                                                                                                                                  

to conditions approximating incarceration for purposes of obtaining Nygren or Shetters  



                                                                                                                                                 

credit.  The court therefore ruled that Fox was not entitled to Shetters credit for the 18  



                                                                                                                                           

days he voluntarily spent at the CRC because "Mr. Fox did have options, even if he  



                                                                                                                                       

perceived them to be less desirable" than staying at the CRC for a short period of time.  



                                           

                      This appeal followed.  



                                                                       

            Why we affirm the superior court's ruling  



                                                                                                                                          

                      On appeal, Fox argues that the superior court erred when it concluded that  



                                                                                                                                    

he was at the CRC voluntarily. Fox points out that a defendant cannot just check himself  



                                                                                                                               

into  a  CRC  in  the  same  manner  he  can  check  himself  into  a  residential  treatment  



                                                                                                                            

program. Instead, a defendant must be affirmatively placed at a CRC by the Department  



                                                                                                                                     

of Corrections, the parole board, the court, or through arrangements made by his parole  



                                                                                                                                          

(or  probation)  officer.                  Fox  therefore  contends  that,  by  definition,  there  are  no  



                                                                                                                            

"voluntary" placements at a CRC, even if the defendant willingly agrees to temporarily  



            

reside there.  



                                                                                                                                

                      For its part, the State contends that because there was no parole condition  



                                                                                                                              

or parole board order requiring Fox to reside at the Tundra Center, Fox must necessarily  



      6    Fortuny, 42 P.3d at 1149-50 (citing Bussell, 702 P.2d at 668-69).  



                                                                    - 4 -                                                              2633
  


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

have   been   there   voluntarily.     The   State   also   suggests   that   parole   officers   lack   the  



authority to unilaterally place a person at a CRC, and therefore all such placements are                                                                                                



voluntary.  



                             Even assuming that parole officers do not have the authority to unilaterally                                                             



order a parolee to reside at a CRC (a question we need not decide here), we reject the                                                                                                  



State's    contention  that    this    automatically    means    the    parolee    was    at    the    CRC   



"voluntarily."   What matters is how the parolee's consent was obtained - in particular,                                                                                



whether it was obtained through a coercive claim of authority, even if that authority did                                                                                               



                                      7  

not actually exist.                                                                                                                                                        

                                          Indeed, we can perceive many reasons for trial judges to be skeptical  



                                                                                                                                                                                            

of the "voluntariness" of such placements, given the potentially coercive nature of a  



                                    

parole officer's "request."  



                                                                                                                                                                                   

                             At  the  same  time,  we  disagree  with  Fox's  contention  that  all  such  



                                                                                                                                                                                        

placements are inherently involuntary and the equivalent of incarceration.  Here, the  



                                                                                                                                                                                      

court held an evidentiary hearing and determined that Fox's placement at the CRC was  



                                                                                                                                                                                   

voluntary.  This finding is supported by the record, which shows that Fox was made  



                                                                                                                                                                                   

aware that he was not being ordered to the CRC, and that Fox understood that he could  



                                                                                                                                                                                      

refuse to be placed there.  There is also nothing in the record to suggest that Fox was  



                                                                                                                                                                           

prohibited from leaving the CRC if he wished, or that he would have faced any penalties  



                                                                                                                                                                                       

for doing so - other than being subject to the original petition to revoke probation that  



                                                                                                                                                                                      

he was able to avoid by choosing to temporarily reside at the CRC.  The record also  



       7       Cf. Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) ("Consent [is not] freely  



and  voluntarily  given  ...  [when  it  is]  no  more  than  acquiescence  to  a  claim  of  lawful  

                                                                                                                                                                                

authority."); 4 Wayne R. LaFave, Search and Seizure,  8.2(a), at 71 (5th ed. 2012) ("One  

factor very likely to produce a finding of no consent ... is an express or implied false claim  

                                                                                        

by the police that they can immediately proceed to make the search in any event.").  

                                                                                     



                                                                                          -  5 -                                                                                   2633
  


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

shows that Fox's stay was short, and that it was marked by Fox's ultimately successful  

                                                                                                                   



efforts to get approval for alternative housing.  

                                                                       



                    Given these circumstances, we conclude that the superior court did not err  

                                                                                                                              



when it upheld the parole board's decision to deny Fox credit against his sentence for the  

                                                                                                                              



18 days that Fox spent at the Tundra Center.  

                                                        



          Conclusion  



                    The judgment of the superior court is AFFIRMED.  

                                                                             



                                                             -  6 -                                                       2633
  

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