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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
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303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHELLE L. GATES, | ) |
| ) Court of Appeals No. A-10032 | |
| Appellant, | ) Trial Court No. 4FA-04-121 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2152 March 21, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Robert B. Downes,
Judge.
Appearances: Tracey Wollenberg, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This case involves a defendant who is seeking credit
against her sentence for time that she spent in two residential
treatment programs while on bail release prior to her sentencing.
In Nygren v. State, 658 P.2d 141, 145-46 (Alaska App.
1983), this Court held that a defendant is entitled to credit
against their sentence for time spent in a treatment program
while on pre-sentencing bail release if that program imposes
substantial restriction[s] on [the defendants] freedom of
movement and behavior that approximat[e] those experienced by one
who is incarcerated.1
The defendant in the present case, Michelle Gates,
participated in two residential treatment programs at the order
of the superior court before sentencing, but she failed to
complete either program. The precise question raised in this
appeal is whether Gatess failure to complete the programs bars
her from obtaining Nygren credit for the time she spent in the
programs.
This question turns on the proper interpretation of AS
12.55.027, a statute recently enacted by the Alaska Legislature
to govern the awarding of Nygren credit.2
Subsection (a) of AS 12.55.027 declares that a court
can grant a defendant credit toward their sentence for time spent
in a treatment program, but only as provided in the statute.
Subsection (c) of the statute sets out the test for whether the
treatment program imposes such substantial restrictions on a
persons liberty [as to be] equivalent to incarceration.
The portion of the statute at issue in this appeal is
subsection (b). This subsection states that, if a defendant has
been ordered by a court to reside in a treatment facility as a
condition of bail or probation, the court may grant one day of
credit toward the defendants sentence of imprisonment for each
full day the defendant resided in the treatment facility and
observed the rules of the treatment program and the facility if
... the defendant ... has complied with the requirements of the
[treatment] plan. AS 12.55.027(b)(3)(A).
The superior court denied Gatess request for Nygren
credit because the court interpreted the foregoing subsection as
forbidding the court from granting credit to a defendant who does
not complete the treatment program. The superior court relied on
the fact that subsection (b)(3)(A) requires a defendant to prove
that they complied with the requirements of the [treatment] plan.
The court reasoned that if a defendant is discharged from a
treatment program, the defendant must necessarily have failed to
comply with the requirements of the plan.
This is a reasonable interpretation of the wording of
subsection (b). However, the State now concedes, based on an
examination of the legislative history of AS 12.55.027, that this
is not what the legislature intended. The State agrees with
Gates that AS 12.55.027 does not require that a defendant
complete a court-ordered residential treatment program in order
to obtain credit [against their sentence of imprisonment] for
time spent in that program. Joint Motion for Summary Disposition
of [this] Criminal Appeal, page 2 (emphasis in the original).
Even though Gates and the State now agree on this
interpretation of the statute, Alaska law obliges this Court to
independently assess any confession of error by the State in a
criminal appeal.3 We have therefore examined the legislative
history of this statute as reflected in the minutes of the
various committee meetings at which the draft legislation (House
Bill 90, 25th Legislature) was considered. In certain instances
(described below), we have even listened to the audio recordings
of committee proceedings.
Our review of this legislative history convinces us
that the States concession of error is correct. In particular,
we agree with the assertion in Gatess opening brief that the
minutes of the House Finance Committee from April 24, 2007
contain an erroneous description of the statements made to the
Committee by Assistant Attorney General Anne Carpeneti.
According to the Finance Committee minutes, Ms.
Carpeneti told the Committee that the proposed statute would
require the director of the treatment program to inform[] the
court that the [defendant] completed the requirements of the
program.4 (Emphasis added) But the audio record shows that this
is not what Carpeneti said to the Committee. Rather, Carpeneti
stated that the proposed statute would require the director of
the program to certify that the defendant actually spent these
days in this treatment program and participated in the program.5
(We note that Carpeneti said essentially the same thing
to the House Judiciary Committee two weeks earlier, on April 10,
2007.)6
Based on the wording of the statute (taken as a whole),
and based on the content of the legislative committee proceedings
at which the proposed law was discussed, we agree with the
parties that AS 12.55.027 awards credit to a defendant for each
day of successful participation in a court-ordered treatment
program that meets the requirements of subsection (c) of the
statute, even though the defendant may ultimately be discharged
from the program for misbehavior or non-compliance.
Accordingly, we REVERSE the decision of the superior
court on this issue of statutory interpretation, and we REMAND
Gatess case to the superior court for further consideration of
her request for Nygren credit. We do not retain jurisdiction of
this case.
_______________________________
1 The first portion of this Nygren quotation is from Lock v.
State, 609 P.2d 539, 545 (Alaska 1980).
2 This statute was enacted by SLA 2007, ch. 24, 20, and it
took effect July 1, 2007.
3 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
4 House Finance Committee minutes of April 24, 2007, available
at:
http://www.legis.state.ak.us/basis/get_single_minute.asp?ch=
H&beg_line=00085&end_line=00534&session=25&comm=Fin&date=200
70424&time=1343.
5 Audio file of the proceedings of the House Finance Committee
on April 24, 2007 @ 1:55:30 1:56:16. This audio file is
available at:
http://www.legis.state.ak.us/basis/get_audio.asp?session=25&ch
amber=H&comm=FIN&date1=4/24/2007&start=1343&bill=HB90
(At this web page, click on the link labeled 13:54:35.)
6 Audio file of the proceedings of the House Judiciary
Committee on April 10, 2007 @ 1:35:30 1:35:56. This audio file
is available at:
http://www.legis.state.ak.us/basis/get_audio.asp?session=25&ch
amber=H&comm=JUD&date1=4/10/2007&start=1302&bill=HB90
(At this web page, click on the link labeled 13:33:11.)
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