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Ackerman v. State (3/28/2008) ap-2154

Ackerman v. State (3/28/2008) ap-2154

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
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) Court of Appeals No. A-9676
Appellant, ) Trial Court No. 4FA-05-256 Cr
v. )
) O P I N I O N
Appellee. ) No. 2154 March 28, 2008
          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Randy  M.  Olsen,

          Appearances:  James H. Cannon, Fairbanks, for
          the Appellant.  Douglas H. Kossler, 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.

          Paul  A. Ackerman was charged with two crimes:   felony
driving  under the influence and failure to stop at the direction
of  a  police officer.  He was released on electronic  monitoring
pending  his trial.  After Ackerman was convicted, he  asked  the
superior  court to give him credit against his sentence  for  the
time he spent on electronic monitoring.  The superior court ruled
that  Ackerman  was not entitled to credit against his  sentence,
and Ackerman now appeals this ruling.
          Under  AS  12.55.025(c),  a defendant  is  entitled  to
credit  against their sentence for time spent in custody  pending
trial   [and]  sentencing  if  that  detention  was  imposed   in
connection with the offense for which the defendant is sentenced.
In  Nygren  v. State, 658 P.2d 141, 146 (Alaska App. 1983),  this
Court  held that a defendant who is released on bail (and who  is
therefore not in the custody of the Department of Corrections) is
nevertheless  entitled  to credit against  their  sentence  under
AS  12.55.025(c)  if the defendants bail conditions  subject  the
defendant to restrictions approximating those experienced by  one
who is incarcerated.
          In Matthew v. State, 152 P.3d 469 (Alaska App. 2007)  a
case  that  was  decided while Ackermans appeal was  pending   we
addressed  the  same question raised in Ackermans case:  whether,
under  AS 12.55.025(c) as interpreted in Nygren, a defendant  who
is granted pre-trial release on electronic monitoring is entitled
to  credit  against their sentence of imprisonment for  the  time
spent on electronic monitoring.
          The  defendant  in  Matthew was  required  to  wear  an
electronic monitoring device and he was restricted to  his  home,
his  work,  and transit in between.  Id. at 472.   We  held  that
these  constraints  on  the defendants  activities  were  not  so
onerous as to be the equivalent of incarceration for purposes  of
AS  12.55.025(c).  Id. at 472-73 (majority opinion)  and  at  474
(Mannheimer, J., concurring).
          Ackermans  conditions of release were  essentially  the
same as the ones discussed in Matthew.  Ackerman was required  to
wear  an  electronic monitoring device (a device  that  monitored
both his geographic position and his consumption of alcohol), and
he was restricted to his home in Fairbanks, his work at Clear Air
Force  Base  (including  the dining hall  at  the  base  and  the
dormitory  where  Ackerman would stay during his  multi-day  work
assignments),  and  transit in between.  Thus,  our  decision  in
Matthew  would  seemingly  govern  our  resolution  of  Ackermans
          Ackerman asks us to reconsider and reverse our decision
in Matthew.
          Under  the  doctrine of stare decisis, when a  litigant
challenges a controlling decision of this Court, it is not enough
...  to show that the [prior] decision was honestly debatable  at
the  time, and that it might have gone the other way.  Rather,  a
litigant  who  asks  an appellate court to overrule  an  existing
decision must demonstrate convincing reasons why the decision was
originally   erroneous   in  other  words,  was   never   legally
justifiable   or why the decision is no longer sound  because  of
changed conditions.  Erickson v. State, 950 P.2d 580, 587 (Alaska
App.  1997)  (quoting State v. Dunlop, 721 P.2d 604, 610  (Alaska
          Ackerman  argues  that  our  decision  in  Matthew  was
originally  erroneous.  In particular, he relies on  an  exchange
that   occurred  during  the  1998  House  Judiciary   Committees
discussion of House Bill 272.  This bill, which eventually became
SLA    1998,   ch.   116,   enacted   two   companion   statutes:
AS  33.30.061(c) and AS 33.30.065.  These statutes authorize  the
Commissioner   of   Corrections   to   release   prisoners   from
correctional  facilities  to  serve  their  sentence   at   their
residence  (or  at  some  other  specified  living  place)  under
electronic monitoring.  Ackerman contends that a portion  of  the
committees discussion shows that the legislature intended to give
Nygren  credit  to  defendants who are  released  on  bail  under
electronic monitoring.
          The minutes of the Judiciary Committee for February 18,
1998, contain the following colloquy between Representative Ethan
Berkowitz, Representative Joe Green (the Chair of the Committee),
and  Kevin Jardell, a legislative aide working for Representative
     Representative Berkowitz noted that this
[proposed   statutory  amendment]   addresses
[release  on electronic monitoring following]
conviction, but not bail.

     Mr. Jardell concurred and explained that
they  dont want to get too expansive in  this
[release  on electronic monitoring]  project.
They   want   to  allow  the  Department   of
Corrections to focus on a specific  group  of
prisoners  that have already been  convicted,
and to try to implement an effective program.
He  expressed hope that, if it is  successful
and can be done economically and efficiently,
it  could be expanded later to address  those
concerns [i.e., defendants released on bail].
He noted that Freds Bail Bonding in Anchorage
now  has  some private electronic  monitoring
for pre-trial or bail situations.

     Representative Berkowitz commented  that
Fred  does have a quasi-governmental sta[tus,
and  if  he]  can  get bail  with  electronic
monitoring,  that  person would  qualify  for
Nygren or jail term credit.

     Chairman Green said that may be.

     Mr.  Jardell stated his impression  that
Representative  Berkowitz  is  correct.    He
added, My understanding of Nygren is that, if
the   court  orders  you  to  any   type   of
incarceration, ... that incarceration can  be
counted  as  Nygren  credit.   ...   I  would
imagine [that whenever a defendant is]  under
any  kind of electronic monitoring, it  would
be [at the order of] the courts.

(Minutes  for Tape 98-19, Side  B,  log  nos.
0848 to 0935)
          Ackerman  argues that the  comments
of Rep. Berkowitz and Mr. Jardell support the
conclusion that the legislature intended,  or
at least foresaw, that defendants released on
bail   under   electronic  monitoring   would
receive  credit against their  sentences  (in
the event they were convicted).
          It  is true that Rep. Berkowitz and
Mr.   Jardell   expressed   the   view   that
defendants  released on bail under electronic
monitoring  would  be  entitled   to   Nygren
credit.   But  it  is also clear,  from  this
quoted  passage,  that  the  issues  of  bail
release and potential Nygren credit were  not
before  the  Committee.  When Rep.  Berkowitz
pointed  out  that  the  proposed  electronic
monitoring   legislation  did   not   include
defendants  on  bail  release,  Mr.   Jardell
answered  that the drafters of the  bill  had
consciously decided to limit the scope of the
law  to  prisoners who had been convicted  of
crimes   and  were  serving  their  sentence.
Thus, although Rep. Berkowitz and Mr. Jardell
expressed  views  on the  subject  of  Nygren
credit  for  defendants who were released  on
bail  with electronic monitoring, Mr. Jardell
clearly  stated that this subject was  beyond
the  scope of the proposed bill.  This  being
so,   the  question  of  Nygren  credit   was
seemingly   irrelevant   to   the   Judiciary
Committees decision  or the full legislatures
later   decision   regarding   the   proposed
electronic monitoring bill.
          Ackerman  also  argues  that   bail
release  under  electronic  monitoring  is  a
significantly  different  status  from   bail
release  without electronic  monitoring.   At
oral  argument,  Ackerman acknowledged  that,
absent  electronic monitoring, his conditions
of  release would not, by themselves, entitle
him  to  Nygren credit.  But Ackerman  argues
that  the  addition of electronic  monitoring
alters  the  equation so as to  yield  a  new
legal result.
          We    disagree.    The   fact    of
electronic monitoring did not alter or add to
the    restrictions   placed   on   Ackermans
whereabouts    or    activities.     Instead,
electronic monitoring was a way for the court
to  find out whether Ackerman was abiding  by
those restrictions.
          Ackerman   argues  that  defendants
feel  a different psychological pressure when
they   know  that  an  electronic  monitoring
device  is  keeping track of  their  physical
movements  and  their  alcohol  intake.   But
defendants have no protected right to violate
the  conditions of release if  they  can  get
away with it.
          In sum, we re-affirm our conclusion
in  Matthew  that the constraints imposed  by
electronic  monitoring are not the equivalent
of     incarceration    for    purposes    of
AS 12.55.025(c).
          But  even  if  the matter  remained
debatable,  this would not be sufficient  for
Ackerman  to  prevail in this appeal.   Under
the  doctrine of stare decisis,   it  is  not
enough for Ackerman to show that our decision
in  Matthew  was  honestly debatable  at  the
time,  or  that the decision might have  gone
the  other  way.   Rather,  it  is  Ackermans
burden   to  convincingly  demonstrate   that
Matthew was wrong from the beginning.  He has
not met this burden.
          Accordingly, we decline to overrule
Matthew.    And,  because  our  decision   in
Matthew  governs  Ackermans  claim  in   this
appeal,  the judgement of the superior  court

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