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Fungchenpen v. State (4/18/2008) ap-2160

Fungchenpen v. State (4/18/2008) ap-2160

     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

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) Court of Appeals No. A-9892
Appellant, ) Trial Court No. 3AN-06-7473 Cr
v. )
) O P I N I O N
Appellee. ) No. 2160 April 18, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Patrick J.  McKay,

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  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.

          Sonny   Fungchenpen  was  convicted  of   second-degree
assault  for  attacking and wounding a man in a bar with  a  beer
bottle.   In this appeal, Fungchenpen argues that he is  entitled
to  credit against his sentence for the 200 days he spent on bail
release before his sentencing.
          As  a condition of release, Fungchenpen was required to
submit  to electronic monitoring.  Fungchenpen was also  required
to  be in the immediate presence of a third-party custodian  (his
wife) for twenty-four hours a day, except when he was at work (or
when   he   was  traveling  to  and  from  work).   In  addition,
Fungchenpen  was ordered not to consume alcohol, not  to  possess
firearms,  and  to have no personal contact with the  victim  and
witnesses in this case.  [Exc. 1-7]
          Based on this Courts decision in Matthew v. State,  152
P.3d   469   (Alaska  App.  2007),  the  superior  court   denied
Fungchenpens   request   for   credit   against   his   sentence.
Fungchenpen now appeals the superior courts decision.
          Fungchenpen first argues that our decision  in  Matthew
should  not  control his case; he asserts that his conditions  of
release  were substantially more restrictive than the  conditions
of  release  that  we addressed in Matthew.  In the  alternative,
Fungchenpen asks us to reconsider and overrule Matthew.
          We  do  not view Fungchenpens conditions of release  as
materially  different  from the conditions  of  release  that  we
addressed  in  Matthew and in our subsequent  decisions  on  this
issue  Ackerman v. State, Alaska App. Opinion No. 2154 (March 28,
2008);  McNeil v. State, Alaska App. Memorandum Opinion No.  5216
(May  9, 2007), 2007 WL 1378151; and Finkel v. State, Alaska App.
Memorandum  Opinion  No. 5186 (March 7, 2007),  2007  WL  706637.
Accordingly,  we  conclude that our decision in  Matthew  governs
Fungchenpens case.
          In  Ackerman, we considered various arguments as to why
we  should  overrule Matthew, and we rejected them.   Fungchenpen
raises  one  additional  argument that  we  have  not  previously
          Fungchenpen notes that, after we announced our decision
in  Matthew (February 2, 2007), the Alaska Legislature enacted  a
law  that  expressly prohibits defendants from  receiving  credit
against  their  sentences for time spent  on  pre-trial  or  pre-
sentencing    release   under   electronic    monitoring.     See
AS 12.55.027(d) (enacted by SLA 2007, ch. 24,  20, effective July
1, 20071 ), which reads:  A court may not grant credit against  a
sentence of imprisonment for time spent in a private residence or
under electronic monitoring.  Based on the legislatures enactment
of  this  statute,  Fungchenpen argues that the legislature  must
have  thought that the law was otherwise before the enactment  of
the statute.
          We  do  not  agree.   The  legislative  history  of  AS
12.55.027(d)  suggests  that  the  legislatures  purpose  was  to
confirm  its  understanding of pre-existing law in  the  face  of
several  superior court decisions (decisions issued  before  this
Court  decided  Matthew) that granted defendants  credit  against
their sentences for time spent on electronic monitoring.
          Of  particular relevance are the minutes of  the  House
Judiciary Committee for the afternoon of April 10, 2007, when the
Committee considered House Bill 90 (25th Legislature)   the  bill
that  was  eventually enacted as SLA 2007, ch.  24.   During  the
Committees  discussion of this bill, Assistant  Attorney  General
Anne  Carpeneti  answered a question from Representative  Lindsey
Holmes   regarding  Section  6,  the  provision   on   electronic
               Representative  Holmes referred  to  ...
          proposed   AS  12.55.027(d),  [the  provision
          dealing  with] credit against a  sentence  of
          imprisonment   for  time  spent   ...   under
          electronic   monitoring.   ...    She   asked
          whether  anyone  is  currently  being   given
          credit   for  time  served  under  electronic

     Ms.  Carpeneti said that that issue  was
recently  litigated in the  Alaska  Court  of
Appeals case [of] Matthew v. State; the court
ruled  that  a persons time under  electronic
monitoring  should  not  qualify  for  credit
against  a  sentence  of  imprisonment.   She
[understood] that there have been some  cases
in  which  credit has been awarded  for  time
spent   in   a   private   residence.     The
[Department  of Law] wanted to  clarify  that
point,  and so brought forth the language  in
proposed subsection (d).

Minutes of the House Judiciary Committee  for
April 10, 2007 @ 1:33 p.m.2
          In    sum,   we   have   considered
Fungchenpens arguments as to why Matthew  was
wrongly  decided,  and we  reject  them.   We
again  confirm  the decision  we  reached  in
          The  decision of the superior court

  1  For the effective date of this provision, see SLA 2007,  ch.
24,  39.

2Available at:

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