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Gates v. State (3/21/2008) ap-2152

Gates v. State (3/21/2008) ap-2152

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     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-10032
Appellant, ) Trial Court No. 4FA-04-121 Cr
v. )
) O P I N I O N
Appellee. ) No. 2152 March 21, 2008
          Appeal  from the Superior Court, Fourth  Judi
          cial  District, Fairbanks, Robert B.  Downes,

          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
          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,
          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
  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:
(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:
(At this web page, click on the link labeled 13:33:11.)

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