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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bailey v. State, Dept. of Corrections, Board of Parole (1/22/2010) sp-6453

Bailey v. State, Dept. of Corrections, Board of Parole (1/22/2010) sp-6453, 224 P3d 111

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

WILLIAM BAILEY, )
) Supreme Court No. S- 13079
Appellant,)
) Superior Court No. 3KN-06- 698 CI
v. )
) O P I N I O N
)
STATE OF ALASKA, DEPARTMENT) No. 6453 - January 22, 2010
OF CORRECTIONS, BOARD OF)
PAROLE, )
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Patrick J. McKay, Judge.

          Appearances:  Charles Winegarden, Kenai,  for
          Appellant.    Marilyn  J.   Kamm,   Assistant
          Attorney  General, and Richard  A.  Svobodny,
          Acting   Attorney   General,   Juneau,    for
          Appellee.

          Before:    Fabe,   Winfree,   and   Christen,
          Justices.   [Carpeneti,  Chief  Justice,  and
          Eastaugh, Justice, not participating]

          WINFREE, Justice.


I.   INTRODUCTION
          In  this  appeal  we review the revocation  of  William
Baileys  parole.   After  his conviction Bailey  was  ordered  to
actively  participate and successfully complete  substance  abuse
treatment  if  offered  during  his  incarceration.   At  Baileys
initial parole hearing, the parole board directed Bailey to apply
to  a  residential  substance abuse  treatment  program.   Bailey
applied  to  a treatment program, but was rejected after  raising
legitimate concerns about the programs restrictions on his  right
to   access  the  courts.   Bailey  successfully  grieved   those
restrictions, but did not then reapply to the treatment  program.
The  parole board revoked Baileys mandatory parole on the  ground
that  Bailey breached the court order to complete substance abuse
treatment  if  such  treatment was offered.  The  superior  court
affirmed the parole boards decision.
          We  conclude  Bailey lacked adequate  notice  that  his
failure  to  reapply to and successfully enroll  in  a  treatment
program  after  he  prevailed with his grievance  would  lead  to
revocation  of  his  parole.  We therefore reverse  the  superior
courts  affirmance of the parole boards decision and  remand  for
proceedings consistent with this opinion.
II.  FACTS AND PROCEEDINGS
          Bailey was convicted in 2001 of three counts of second-
degree theft.  In June 2002 Bailey was sentenced to ten years  in
prison,  with four years suspended and six years to  serve.   The
judgment  ordered Bailey to actively participate and successfully
complete   substance  abuse  treatment  if  offered  during   his
incarceration.
          In  October  2002  Bailey was transferred  to  Wildwood
Correctional Center (Wildwood).  There Bailey signed  a  Prisoner
Notice  of Court-Ordered Treatment indicating he understood  that
if  he  refused  to  participate in a substance  abuse  treatment
program  offered to him, his mandatory parole could  be  revoked.
Less  than  a month later Bailey was transferred to Spring  Creek
Correctional  Center (Spring Creek).  There  Bailey  submitted  a
Request  for Interview asking for a status check with regards  to
[his]  court  ordered treatment.  The Department  of  Corrections
(DOC)  responded  that  Bailey  had  not  previously  applied  to
Wildwoods  residential  treatment program  and  that  the  parole
officer  at Wildwood was not interested in reviewing [Bailey]  at
this time.
          In  February 2003 Bailey was transferred to a detention
center  in  Arizona.  Bailey later testified  before  the  parole
board  that  he applied for substance abuse treatment in  Arizona
but  was  placed on a waiting list.  In apparent anticipation  of
his  May 2004 transfer back to Spring Creek, Bailey completed  an
application  for  a  treatment  program  at  the  Salvation  Army
Clitheroe   Center   (Clitheroe)   in   March   2004.     Baileys
participation in Clitheroes inpatient program would have required
a  furlough, but Baileys furlough application was denied.  Bailey
was  advised  to  complete a community work  service  program  at
Hiland  Mountain Correctional Center (HMCC), after  which  Bailey
would  be  allowed  to  reapply  for  a  furlough.   Bailey   was
transferred  to  HMCC in July 2004, but was transferred  back  to
Spring Creek in November 2004.
          In  January  2005 Bailey again applied for a  furlough,
but he was advised to complete the Wildwood residential treatment
program   before  his  application  for  a  furlough   would   be
considered.
          In  April  2005  parole officer C. S. Pianko  issued  a
Parole  Violation Report, charging that Bailey had  violated  the
terms  of  his  judgment of conviction by fail[ing]  to  actively
participate  and successfully complete substance abuse  treatment
offered  to  him while incarcerated.  Pianko wrote that  Prisoner
Bailey  has  been  given  numerous  opportunities  to  engage  in
substance   abuse   treatment   while   incarcerated,   including
opportunities  to apply to the Wildwood program in December  2004
and  in  January 2005.  Pianko recommended that Baileys statutory
good time be revoked.
          The  parole board held Baileys initial hearing on  June
22,  2005.   When  the  parole board asked  Pianko  for  evidence
supporting the violation charge, Pianko answered:
          Actually in good faith, I cannot present  any
          substantial supporting evidence . .  .  .  He
          has  never  verbally said that he  would  not
          (indiscernible) in substance abuse  treatment
          and . . . he has never physically or verbally
          refused  to deny [sic] or actually verbalized
          or  documented the fact that he does not want
          to  [indiscernible] type of  substance  abuse
          treatment.
          
Pianko  asked  to withdraw the request to revoke Baileys  parole,
but the parole board proceeded with the hearing.
          At  the  hearing Bailey raised concerns about Wildwood.
He  explained that he is disabled1 and had doubts about Wildwoods
compliance  with  the  Americans with  Disabilities  Act  (ADA).2
Bailey   claimed   that  due  to  his  disability   (degenerative
arthritis),  he would be unable to go downstairs to  do  his  own
laundry  or  to  access  the law library  and  church  facilities
located on an upstairs floor.
          The  parole board continued the revocation hearing  for
six  months.   Bailey  was  ordered  to  apply  to  the  Wildwood
residential  treatment program in the interim.  The parole  board
chairman  elaborated to Bailey:  [W]e want to see what the  reply
is,  if youre in the program at that time, thats fine.  If  youre
not,  then well review why you did not get into the . . . program
and  well  take  that  issue up in December.   The  parole  board
addressed  Baileys concerns about Wildwood by saying that  Bailey
could  also  if  he  wishe[d] apply to  a  residential  treatment
program  in Arizona, although neither the likelihood of arranging
a  transfer  back  to Arizona nor Baileys prior  experience  with
waiting lists for treatment in Arizona was discussed.  The parole
board hearing ended immediately thereafter.  A written Notice  of
Board  Action  reiterated that Bailey was ordered  to  apply  for
substance  abuse  treatment while incarcerated and  that  Baileys
case would be continued until December 2005.
          Bailey  was  given  an  application  for  the  Wildwood
program  within  a week of the parole board hearing.   A  July  5
letter  from the parole board administrator informed Bailey  that
the   Wildwood  program  is  able  to  accommodate  inmates  with
disabilities since everything related to the . . . program is  on
the  first  floor and [t]here is no requirement for  the  use  of
stairs.   No  mention  was made of access  to  laundry,  the  law
library, or church facilities.  The letter noted that it  is  the
          Boards expectation that [Bailey] will be actively participating
in   an   institutional  substance  abuse  program.   The  letter
concluded   with   notice   of   Baileys   right   to   ask   for
reconsideration.
          In a July 11 letter Bailey requested reconsideration of
the  parole  boards June 22 order, repeating his  concerns  about
Wildwoods  ADA compliance and explaining that being  able  to  do
laundry, access the law library, and attend church services  were
essential components of his rehabilitation.  Bailey asked  to  be
paroled to Clitheroe or for substance abuse treatment to be  made
a condition of his mandatory release.
          The  parole  board denied reconsideration.  The  parole
board administrator wrote to Bailey that the program, housing and
dining units are all on the ground floor of Wildwood, and [t]here
is nothing prohibiting you from participating in that program and
the  Parole  Board wants you to apply to and participate  in  the
program if accepted.
          Bailey  applied to enter the Wildwood program,  and  on
September  13  he  had  a  telephone interview  as  part  of  the
application  process.   Bailey  was  informed  that  the  program
required  a  thirty-day  blackout period  for  new  participants.
Bailey  later alleged he was told that inmates could not  receive
any  mail during the blackout period and that access to  the  law
library would be based on merit, and claimed that he had objected
to those restrictions during the interview.
          The  day after Baileys interview, Wildwood declined  to
accept  Bailey  into its program.  Wildwoods  e-mail  to  Baileys
parole officer stated that Bailey had made it clear . . . that he
did  not want to come to the [Wildwood] program and he would  not
participate in a 30-day blackout period.  The e-mail  also  noted
it  does  not  appear that treatment at [Wildwood]  is  [Baileys]
number one priority.  He even stated . . . he was be[ing] coerced
and forced into the program.  This is a voluntary program and  we
would  not force someone to stay here if they did not want to  be
here.
          On  September  22  Bailey filed a  grievance  regarding
Wildwoods  denial  of  his  application  to  enter  the  program,
asserting  his  understanding  that  Wildwoods  blackout   period
involved  no  receipt  of any incoming mail  of  [any  sort]  and
limited  access  to  the  law library . .  .  based  upon  merit.
Arguing that he needed to receive mail and have access to the law
library, Bailey maintained that those restrictions, as well as  a
statement by the interviewer that they didnt want people  in  the
program  that  had  [ongoing] legal matters that  might  distract
[from]  their programming objectives, violated his constitutional
right to access the courts.  He also repeated his allegation that
Wildwood did not comply with ADA requirements.
          DOC  responded on September 30:  Law Library access and
legal  call  access  are both allowed  .  .  .  .   There  is  no
restriction  specific  to the black-out period.   A  digital  Law
Library  terminal is in the Therapeutic Community  unit.   Appeal
denied  because all access is already available.  Bailey appealed
to  DOCs  Commissioner, who responded on November 14  reiterating
that legal mail is not restricted during the blackout period  and
that  law  library access and legal call access are  unrestricted
during  this period.  The letter concluded that Baileys grievance
issues have been addressed and clarified so that the restrictions
initially  described do not exist and that [t]herefore,  [Baileys
grievance for] relief . . . is granted.
          In  January 2006 Bailey sent a letter to the  executive
director  of  the  parole board, explaining  his  disability  and
referencing  a  1993  report  stating  that  Wildwood  could  not
accommodate   mobility-impaired  prisoners.    Bailey   requested
placement  at Clitheroe to receive his substance abuse treatment.
No response from the parole board is evident from the record.
          In  June  2006,  after  a delay  requested  by  Baileys
attorney,  the parole board held the hearing continued  from  the
previous June.  The parole board began by stating it had  ordered
Bailey  to  do  substance abuse treatment via  the  [program]  at
Wildwood, then added [t]he board . . . instructed prisoner Bailey
to  apply  for  substance abuse treatment, [and  to]  make  every
effort to comply with his court order.  (Emphasis added.)
          Bailey described his attempts to secure substance abuse
treatment dating back to 2002.  When the parole board accused him
of  treatment  shopping,  Bailey responded  that  was  an  unfair
assessment  made without looking at all the treatment avenues  he
had pursued.  Bailey again raised his concern about Wildwoods ADA
compliance.  The parole board responded by saying,
          [T]he board recognizes that ADA is the law of
          the  land.   [But]  we had no  idea  what  is
          acceptable or not with ADA. . . . We do  know
          that  weve  been  told that  the  program  at
          Wildwood  is  accessible to disabled  people.
          The  hearing must be heard on parole  matters
          only  and  we  are  not here  (indiscernible)
          . . . and you have full right to take them to
          a court of law in the state of Alaska  but we
          are  not here to take the parole boards  time
          today to discuss [that].
          
          On  July  5  the  parole board revoked Baileys  parole,
finding   that   he  had  failed  to  actively  participate   and
successfully  complete substance abuse treatment offered  to  him
while  incarcerated.  The parole board further denied Bailey  any
consideration for parole through the remainder of his sentence.
          Bailey appealed to the superior court in January  2007.
In  his  opening  brief he argued that:  (1)  he  was  not  given
constructive notice that failure to be accepted into the Wildwood
program  would  be  sufficient grounds for revoking  his  parole;
(2)  he complied with the parole boards June 2005 order to  apply
to  a  treatment  program; and (3) because  Wildwood  denied  his
application, no substance abuse treatment was ever offered to him
within the meaning of the original judgment.  In his reply brief,
Bailey  clarified that his constructive notice argument was  that
of  a  due  process  violation, his objections  to  the  Wildwood
program  were  in  defense of his rights under the  ADA  and  his
constitutional right to access the courts, and the parole  boards
failure to give proper consideration to Baileys concerns violated
those rights.
          In  April 2008 the superior court concluded that Bailey
did  not demonstrate a good faith effort to comply with the court
order,  and  that  the parole boards decision to  revoke  Baileys
parole   was  a  reasonable  exercise  of  the  boards  authority
supported by more than substantial evidence.  The superior  court
did  not  directly address Baileys constitutional or ADA  claims.
Bailey appeals from that decision.
          In  May  2008  Bailey  prevailed in  a  separate  post-
conviction relief action, establishing that he should  have  been
ordered   to   serve  his  sentences  concurrently  rather   than
consecutively.   In  light of that decision,  Bailey  asserts  on
appeal  to us that he was ineligible for the Wildwood program  at
the  time  of  his parole board hearing because he did  not  have
enough  time  remaining on his sentence to complete the  program,
and that the parole boards decision must therefore be reversed as
a matter of law.
III. STANDARD OF REVIEW
          We  independently review the record from a parole board
decision after the superior court, functioning as an intermediate
appellate  court,  has  considered a  request  for  relief.3   We
evaluate  whether factual determinations of the parole board  are
supported  by  substantial  evidence.4   When  the  parole  board
exercises  its discretionary authority we review its  action  for
reasonableness to insure that its determinations are supported by
evidence  in  the  record as a whole and there  is  no  abuse  of
discretion.5   But  claims  that  conditions  of  parole  violate
constitutional rights are questions of law to which we apply  our
independent  judgment.6  As with all questions of  law,  we  will
adopt  the  rule that is most persuasive in light  of  precedent,
reason, and policy.7
IV.  DISCUSSION
          Bailey  argues  in part that revocation of  his  parole
violated   his  rights  under  the  United  States   and   Alaska
Constitutions.   According  to  Bailey  his  due  process  rights
include  sufficient constructive notice that his  failure  to  be
enrolled  in  the  Wildwood . . . program  would  result  in  the
immediate revocation of his mandatory parole . . . .  He does not
deny  he  received  notice that he must apply  to  a  residential
treatment program.  He contends that [t]here was no indication by
the  Board at the hearing that if [Bailey] were not accepted into
the  program, he would automatically lo[s]e his right to a parole
and  that  the  Board did not order [him] to reapply  if  he  was
denied entrance to the program.  Because the constitutionality of
a  parole  condition  is a threshold matter,8  we  consider  this
argument first.
          Even  though  parolees  enjoy  fewer  rights  than  the
general  population,   under both the United  States  and  Alaska
Constitutions,  a  parolee may not be  deprived  of  his  limited
liberty  without  due  process of  law.9   Due  process  includes
reasonable notice,10 which in this context requires notice of what
conditions an individual must satisfy to avoid revocation of  his
parole.
          We  find  the  reasoning of the  court  of  appeals  in
          Hamrick v. State11  particularly informative here.  In that case a
probation condition required Hamrick to successfully complete  an
approved sexual offender treatment program.12  Hamricks probation
was  revoked  after  DOC misplaced his first  application  for  a
treatment program and he delayed too long in submitting another.13
The  court of appeals held that DOC has the duty to make it clear
to  the  prisoner  that  . . . he will be  in  violation  of  his
conditions   of   probation  if  he  fails  to  fulfill   certain
expectations.14  It concluded Hamrick was not fully aware that his
conduct violated a condition and would lead to revocation of  his
probation,  and so it could not have been a willful  violation.15
Because Hamrick lacked notice, the court of appeals reversed  the
superior courts order revoking his probation.16
          Here  we conclude Bailey lacked sufficient notice  that
failure  to  reapply to and successfully enroll in  the  Wildwood
program  after  he  prevailed in his grievance  would  result  in
revocation of his parole.  At the close of its meeting the parole
board  instructed Bailey to make an application  to  the  .  .  .
program.  (Emphasis added.)  The Board then told Bailey: If youre
not  accepted,  we will review that or if you are accepted,  well
review  this case again in December.  The Notice of Board  Action
and  the  Order  Revoking Parole, issued  the  same  day  as  the
hearing,  confirmed the parole boards mandate that  Bailey  apply
for  substance  abuse  treatment while  incarcerated.   (Emphasis
added.)   In  compliance  with the unambiguous  language  of  the
parole boards order Bailey applied to the Wildwood program.   His
application was rejected.  Yet the parole board later revoked his
parole  for  failure to participate in substance abuse  treatment
while incarcerated.  (Emphasis added.)
          The  parole  boards instructions provided  notice  that
Bailey  must  apply to a residential treatment  program  or  risk
parole  revocation.  But the parole board expressly  allowed  for
the possibility that Baileys application would be denied, and the
parole board did not warn of any possible consequences  including
revocation  of parole  if Baileys application was denied  and  he
did not reapply.  Although the parole boards July 2005 letter  to
Bailey  stated  it  is the Boards expectation that  you  will  be
actively  participating  in  an  institutional  substance   abuse
program,   we  agree  with  Bailey  that  [d]espite  the   Boards
expectations, there [was] no admonition that denial of acceptance
into a program would result in parole revocation.
          DOC  nevertheless argues Bailey had constructive notice
in  light  of the Notice of Court-Ordered Treatment,  the  Parole
Violation  Report, and the parole boards order that he apply  for
treatment.  Citing Williams v. State17 and Alexander v.  State,18
DOC  maintains that Baileys parole . . . was revoked  because  he
failed  to  re-apply to Wildwood after he was  informed  that  he
would  have legal mail access and access to the law library.   We
disagree.
          The  Notice  of  Court-Ordered  Treatment  warned  that
[f]ailure to participate in or comply with the treatment plan  of
a  court-ordered rehabilitation program, if the program  is  made
available  to  [Bailey] would lead to a petition  to  revoke  his
parole.   The  Parole Violation Report  filed by an  officer  who
          later requested to withdraw his petition to revoke Baileys parole
charged   that   Bailey  failed  to  actively   participate   and
successfully  complete substance abuse treatment offered  to  him
while  incarcerated.   Yet both the notice  and  the  report  are
premised upon the availability of a treatment program.  We  agree
with Bailey that [a] program cannot be said to be offered, and/or
made  available if one is denied acceptance into the program,  at
least if the denial is not willfully procured by the prisoner.
          Here  no  program  was  offered or  made  available  to
Bailey.    Bailey  signed  a  Prisoner  Notice  of  Court-Ordered
Treatment  in  October 2002.  Soon after transferring  to  Spring
Creek, Bailey inquired about his court-ordered treatment but  was
told  DOC personnel were not interested in reviewing [Bailey]  at
this  time.   Bailey  applied for treatment in  Arizona  but  was
placed  on  a  waiting list.  Bailey unsuccessfully attempted  to
enroll  in Clitheroe in 2004 and 2005.  Bailey complied with  the
parole boards June 2005 order to apply to a residential treatment
program,  but  his  application  was  rejected  after  he  raised
concerns  about the facilities.  Baileys concerns were  addressed
only  after he filed a grievance that was resolved in his  favor.
In light of these efforts, as well as Piankos testimony regarding
Baileys  willingness to seek treatment, we reject  DOCs  argument
that  the  Notice of Court-Ordered Treatment and Parole Violation
Report were sufficient to provide notice.
          We  also disagree with DOCs contention that Bailey  was
on  notice he had to take additional affirmative steps to  enroll
in the Wildwood program once he prevailed with his grievance.  It
would have been reasonable for Bailey to believe it was incumbent
upon  DOC  personnel  in  charge  of  the  Wildwood  program   to
reconsider his application after his successful grievance.  There
is  no  evidence from which to find that Bailey,  in  failing  to
reapply  after his successful grievance, was or should have  been
fully aware he was risking parole revocation.19
          We  therefore  conclude Bailey lacked  adequate  notice
that  failure  to  reapply to, and be enrolled in,  the  Wildwood
program  after his successful grievance would lead to  revocation
of   his  parole.   The  revocation  therefore  violated  Baileys
constitutionally guaranteed right to due process.20
V.   CONCLUSION
          We  REVERSE  the  decision of the  superior  court  and
REMAND for proceedings consistent with this opinion.
_______________________________
     1    In a decision that was effective as of 1998, Bailey was
found to be disabled under the Social Security Act.

     2     Bailey alleged that he sustained an injury at Wildwood
in  2002.   In  2004 he sued DOC for failure to comply  with  ADA
requirements.

     3     See  Covington v. State, 938 P.2d 1085,  1088  (Alaska
App.  1997)  (independently  reviewing  record  of  parole  board
decision after superior court denied request for relief).

     4    Id. at 1090.

     5    Id. at 1090-91.

     6    Id. at 1089 (citing Dye v. State, 650 P.2d 418, 420 n.5
(Alaska App. 1982)).

     7    Lewis v. State, 139 P.3d 1266, 1269 (Alaska 2006).

     8    Covington, 938 P.2d at 1089.

     9     Paul v. State, 560 P.2d 754, 756 (Alaska 1977) (citing
Wortham v. State, 519 P.2d 797, 799 (Alaska 1974)).

     10     E.g.,  Smith  v. State, 872 P.2d 1218,  1224  (Alaska
1994);  see  also United States v. Dane, 570 F.2d 840,  843  (9th
Cir.  1977)  (It  is an essential component of due  process  that
individuals be given fair warning of those acts which may lead to
a  loss  of liberty. (citing Bouie v. City of Columbia, 378  U.S.
347 (1964))).

     11     64  P.3d  175  (Alaska  App. 2003)  (reversing  order
revoking   probation   because  prisoner  lacked   notice).    We
acknowledge  that there are prominent and significant differences
between probation and parole.  State v. Staael, 807 P.2d 513, 517
n.5  (Alaska App. 1991).  Nevertheless, we look to the  reasoning
in  Hamrick  because  the  due process issue  presented  here  is
treated  identically in the parole and probation  contexts.   See
Staael,  807  P.2d  at  517 n.5 ([D]ue process  requirements  for
revocation   of   probation  and  parole   are   constitutionally
indistinguishable. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782
n.3  (1973)));  Paul, 560 P.2d at 756 (echoing the United  States
Supreme   Courts   observation  that  there  is  no   perceptible
difference  relevant to the guarantee of due process between  the
revocation  of  parole and the revocation of  probation  (quoting
Gagnon, 411 U.S. at 782)).

     12    Hamrick, 64 P.3d at 176.

     13    Id. at 176-77.

     14    Id. at 178.

     15    Id. at 178-79.

     16    Id.

     17     924 P.2d 104 (Alaska App. 1996) (rejecting challenges
to requirement that defendant participate in and complete any sex
offender treatment program offered in prison).

     18    38 P.3d 543, 545 (Alaska App. 2001) (holding that order
to  take  advantage of available sex offender treatment  programs
conferred  adequate  notice  that parolee  must  make  meaningful
efforts to participate in the treatment program).

     19    See Hamrick, 64 P.3d at 178-79 (reversing revocation of
probation because the record did not establish that the  prisoner
was  fully  aware he needed to promptly reapply  to  a  treatment
program).

     20     The  parties briefs present other constitutional  and
statutory  claims,  including Baileys argument  that  the  parole
boards decision should be reversed as a matter of law because  of
the  recalculation of time he has left to serve.  We do not reach
these  issues  because  we conclude it was  a  violation  of  due
process to revoke Baileys parole.

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