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State v. Lundy (7/18/2008) ap-2176

State v. Lundy (7/18/2008) ap-2176

     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

             303 K Street, Anchorage, Alaska  99501
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CORRECTIONS, ) Court of Appeals Nos. A-9493,
) A-9494, and A-9836
Appellant, )
) Trial Court Nos. 1JU-05-149 CR,
v. ) 1JU-04-135 CR, and 1JU-04-992 CR
) [No. 2176 - July 18, 2008]
Appellees. )
Appeal    from     the
          Superior   Court,  First  Judicial  District,
          Juneau, Larry R. Weeks, Judge.

          Appearances:   Dean   J.   Guaneli,   Special
          Assistant Attorney General, Marilyn J.  Kamm,
          Assistant    Attorney    General,    Criminal
          Division   Central  Office,  and   Talis   J.
          Colberg,  Attorney General, Juneau,  for  the
          Appellant.   Daniel Lowery, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender, Anchorage, for  Appellee Lundy.  No
          appearance for Appellee Callahan.   Brian  T.
          Duffy,  Assistant Public Advocate, and Joshua
          Fink,   Public   Advocate,   Anchorage,   for
          Appellee  Chase.  Jason Brandeis,  Anchorage,
          for  Amicus  Curiae American Civil  Liberties
          Union of Alaska Foundation.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
          The three defendants  Richard E. Lundy Jr., Richard  J.
Callahan,  and Donald J. Chase  were each convicted  of  offenses
related  to the sexual abuse of a minor and sentenced to  prison.
As  part  of  the  sentencing order in each case,  and  over  the
objections   of  the  State,  the  superior  court  ordered   the
Department  of  Corrections to provide  meaningful  sex  offender
treatment to each defendant while he is incarcerated.            The State objected
to this provision of the sentencing orders because the Department of Corrections has
decided to stop offering sex offender treatment to offenders while they are
incarcerated.  The Department concluded that in-prison treatment was not effective,
and that the Departments efforts should instead concentrate on after-prison treatment
consisting of an extensive evaluation of sex offenders shortly before they are
released from prison, followed by close supervision of these offenders during their
parole and probation.
          The  superior court overruled the States objections  to
the  disputed  sentencing provision because the  court  concluded
that  the Departments decision to abandon in-prison treatment  of
sex  offenders violated the three defendants right  to  treatment
under  the  Alaska  Constitution.   The  State  now  appeals  the
superior courts decision on two grounds.
          First,  the State argues that the superior court lacked
subject  matter  jurisdiction to adjudicate  this  issue  in  the
context of a criminal sentencing.  Relying on prior decisions  of
the  Alaska Supreme Court, the State argues that the legality  of
the  Departments treatment decision must be litigated in a  civil
          Second,  the  State argues that, even if  the  superior
court had the authority to decide the treatment issue as part  of
a  criminal  sentencing, the superior court  was  wrong  when  it
concluded  that the Departments decision violated the  defendants
right to rehabilitation.
          We  agree with the State that the superior court lacked
subject matter jurisdiction to decide this issue as part  of  its
sentencing  order in a criminal case.  Accordingly, we  need  not
reach the issue of whether the Departments decision violated  the
defendants constitutional right to rehabilitation.

          Why  we  conclude the superior court did  not
          have  authority to decide this issue  in  the
          context of a criminal sentencing

          In  Rust v. State,1  the Alaska Supreme Court held that
prisoners  in  the custody of the Department of Corrections  have
the  right to receive treatment for their serious medical needs.2
The  supreme court declared that this right stems from the parens
patriae obligation of the state government to adequately care for
those  in  its custody, as well as the prohibition against  cruel
and  unusual  punishment  found in the Eighth  Amendment  to  the
United States Constitution.3
          Three  months later, in Abraham v. State,4 the  supreme
          court extended Rust by holding that article 1, section 12 of the
Alaska  Constitution guarantees prisoners the  right  to  receive
rehabilitative  treatment.5    (In Abraham,  the  issue  was  the
defendants right to receive treatment for his alcoholism.)
          In  the  present appeal, the superior court  relied  on
this constitutional right to receive rehabilitative treatment  as
its  authority for issuing the sentencing orders at issue in this
appeal   the  sentencing orders that directed the  Department  of
Corrections  to provide in-prison sex offender treatment  to  the
three defendants.
          But  the  superior  courts action  contravenes  another
aspect of the Alaska Supreme Courts decision in Rust.
          After  the supreme court issued its initial opinion  in
Rust,  the State petitioned for rehearing.  In its petition,  the
State  asked  the court to clarify the procedures to be  followed
when  a  prisoner  wishes  to  assert  that  the  Department   of
Corrections  is  denying his constitutional right  to  treatment.
The supreme court responded with a separate opinion on rehearing:
Rust v. State (II).6
          In  Rust II, the supreme court declared that issues  of
prisoner  treatment should not be litigated under Alaska Criminal
Rule  35(a),  the rule that governs motions for correction  of  a
sentence.7   Instead, the supreme court directed that all  future
proceedings  in Rusts case [should] be conducted as if  Rust  had
instituted an independent civil action [against the Department of
Corrections] seeking treatment.8
          In an accompanying footnote, the supreme court declared
that it would await a more appropriate occasion to decide whether
such  claims  could be pursued in a proceeding  instituted  under
[former]  Criminal  Rule  35(b)  that is,  in  a  post-conviction
relief  proceeding.9   But as this court explained  in  Hertz  v.
State,10   subsequent  cases in this  area  have  clarified  that
litigation  dealing with a defendants conditions of  imprisonment
is  civil in nature, and that appeals in such litigation must  go
to the supreme court, not this court.11
          Our  decision in Hertz is an implicit rejection of  the
supreme  courts earlier suggestion in Rust that claims  involving
the  right to treatment might potentially be raised in a petition
for  post-conviction  relief.  Under this  courts  jurisdictional
statute, AS 22.07.020(a), appeals in post-conviction relief cases
come  to this court, not the supreme court  a result that is  the
opposite  of the rule we recognized in Hertz.  Thus, we conclude,
or rather confirm, that the proper method for litigating right-to-
treatment claims is the procedure adopted by the supreme court in
Rust II:  an independent civil action against the Department.
          In  the  present case, when the State objected  to  the
superior courts contemplated sentencing order, the superior court
acknowledged  that  Rust  appeared  to  require  separate   civil
litigation.   However, the court concluded that  compliance  with
Rust   would   be  unduly  cumbersome  and  time-consuming.    In
particular,  the  superior  court feared  that,  by  the  time  a
prisoner   was  able  to  establish  a  need  for  rehabilitative
treatment   in  a  civil  lawsuit,  the  prisoners  sentence   of
imprisonment   might well be over  and, thus, the prisoner  would
never  receive  the  rehabilitative treatment guaranteed  by  the
          Alaska Constitution.
          This  consideration might be a reasonable objection  to
the  supreme courts holding in Rust II  but it does not give  the
superior  court  the  authority  to  ignore  the  supreme  courts
holding. Moreover, in terms of practical reality, there  is  much
to  commend  the  supreme courts resolution  of  this  procedural
          For  example, in the present case, the underlying legal
question does not hinge on the particular treatment needs of  the
three defendants whose names appear in the caption.  Rather,  the
question  is  whether the Department of Corrections can  properly
decide  to  cease providing in-prison sex offender treatment  for
any and all defendants.  This is the kind of issue that should be
litigated  as  a class action, rather than being litigated  on  a
case-by-case  basis at the sentencing hearings of individual  sex
offenders  so that both the Department and the prisoners  receive
one consistent judicial answer to the question posed.
          In  addition, the superior courts decision  to  resolve
this  issue  in  separate, individual sentencing proceedings  has
another  disadvantage:   the superior  courts  directive  to  the
Department  will  end when these three specific defendants  leave
prison  or,  for some other reason, are no longer  interested  in
enforcing the courts decision.
          In  the  present  case, one of the  defendants   Donald
Chase   has already announced that he has no intention of seeking
enforcement  of the superior courts order.  In fact,  Chase  does
not   wish  to  receive  sex  offender  treatment  while  he   is
incarcerated.  (In other words, although Chase is an appellee  in
this case, he is in fact aligned with the State on this issue.)
          And  this  court  was  informed,  shortly  before  oral
argument  in  this case, that another of the defendants   Richard
Lundy   has  finished serving his sentence and has been released.
Thus, the superior courts order is moot in his case.
          This  leaves  only  one  defendant   Richard  Callahan.
According to what this court was told at oral argument,  Callahan
wishes to enforce the superior courts order  but only if it means
that he can stay at Lemon Creek (i.e., the prison in Juneau).  If
the  Department  were  to  establish  a  sex  offender  treatment
facility  at another prison, and if the Department were  then  to
transfer  Callahan  to  that  other prison  to  comply  with  the
superior courts order, Callahan would apparently waive his  right
to treatment and fight the transfer.
          All  of  this merely highlights the underlying  problem
with  the superior courts approach.  Even if all three defendants
wanted  to  enforce  the  superior  courts  order,  these   three
defendants  would  eventually complete  their  sentences  and  be
released.  There would then be no one with standing to insist  on
enforcement  of  the  superior courts  order.   If,  indeed,  the
superior   court   is   correct  that  sex   offenders   have   a
constitutional right to treatment while they are in  prison,  the
way  to  enforce that right is to have an ongoing civil  judgment
against the Department.
          For  these reasons, we agree with the State that, under
Alaska  law,  the underlying issue presented in  this  case   the
issue  of  whether  defendants have  a  constitutional  right  to
receive sex offender treatment while in prison  must be litigated
in a civil lawsuit brought against the Department of Corrections.
The superior court had no authority to litigate this issue in the
three defendants sentencing proceedings.
          Because  the  superior  court  had  no  subject  matter
jurisdiction to decide this issue, the superior courts  directive
to  the  Department  of  Corrections is  void.12   The  contested
provision  must  be  deleted from the three  defendants  criminal

          Why  we  uphold  the  superior  courts  order
          directing  the  Department of Corrections  to
          allow  Donald  Chase to receive  supplemental
          sex  offender  treatment from  Chases  chosen
          therapist after he is released on probation

          There  is  one other issue presented in this case.   At
the  sentencing of Donald Chase, the superior court  ordered  the
Department  of Corrections to allow Chase to pursue  private  sex
offender treatment (at his own expense) with Dr. Roger Abernathy.
The  State  challenges this order because Dr.  Abernathy  is  not
among the Department of Corrections authorized therapy providers.
The State argues that the Departments own efforts to meaningfully
treat  sex offenders who are on probation will be compromised  if
sentencing courts allow defendants to choose their own  treatment
          It is possible that Dr. Abernathys treatment regime may
not match the Departments expectations or wishes.  But the Alaska
statutes  provide  a  sentencing court with  broad  authority  to
fashion    conditions    of    probation.13     In    particular,
AS  12.55.100(a)(5) grants a sentencing court  the  authority  to
order  a  probationer  to  participate  in  or  comply  with  the
treatment  plan  of  an  inpatient or  outpatient  rehabilitation
program  specified  by ... the court ... [if that  treatment]  is
related   to   the  defendants  offense  or  to  the   defendants
          Here,  the superior courts treatment order is obviously
directed  to Chases offense and his rehabilitation.  We therefore
conclude  that  superior court had the authority to  impose  this
condition of probation, even over the Departments objections.
          We acknowledge that, even though the superior court has
broad  authority  over the conditions of a defendants  probation,
another  governmental  body  the Board of  Parole   controls  the
conditions  of  a  defendants parole.  It is  possible  that  the
contested  condition of Chases probation might present a  problem
at  some  point in the future if Chase is released on  concurrent
probation and parole.14  In that event, either the State or Chase
can ask the superior court to revisit this issue.

          We   VACATE  the  provisions  of  the  three   criminal
judgments  that direct the Department of Corrections  to  provide
sex  offender  treatment  to the defendants  while  they  are  in
prison.  We AFFIRM the condition of probation in Chases case that
allows him to pursue sex offender treatment with Dr. Abernathy at
          his own expense.
     1 582 P.2d 134 (Alaska 1978).

     2 Id. at 143.

     3 Id. at 139-42.

     4 585 P.2d 526 (Alaska 1978).

5   Id.   at  531-33.   Article  I,  section  12  of  the  Alaska
Constitution states:  Criminal administration shall be based upon
... the need for protecting the public, community condemnation of
the  offender, the rights of victims of crimes, restitution  from
the offender, and the principle of reformation.

     6 584 P.2d 38 (Alaska 1978).

     7 Id. at 39.  See also LaBarbera v. State, 598 P.2d 947, 949
(Alaska  1979) (holding that right-to-treatment claims could  not
be raised in a motion for modification of a criminal sentence).

     8 Rust II, 584 P.2d at 39.

     9 Id. at 39 n.3.

     10   81 P.3d 1011 (Alaska App. 2004).

     11   Id. at 1014.

12     See  State  v.  Combs,  64  P.3d  135,  138  (Alaska  App.
2003);  State  v.  Superior Court, 40 P.3d 1239, 1241-43  (Alaska
App. 2002).

     13   See, e.g., AS 12.55.015(a) and AS 12.55.080.

     14    See  AS 33.20.040(c) (providing for concurrent release
on probation and parole).

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