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Triplett v. State (12/19/2008) ap-2200

Triplett v. State (12/19/2008) ap-2200

     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-9968
Appellant, ) Trial Court No. 3PA-01-2366 CR
v. )
) O P I N I O N
Appellee. ) No. 2200 December 19, 2008
Appeal from the
          Superior Court, Third Judicial District,
          Palmer, Eric A. Aarseth, Judge.

          Appearances:  Daniel Lowery, Assistant Public
          Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for the Appellant.  John
          K. Bodick, Assistant Attorney General, and
          Talis J. Colberg, Attorney General, Juneau,
          for the Appellee.

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

          BOLGER, Judge.

          The   parole  board  released  James  S.  Triplett   to
residential treatment as a condition of his discretionary  parole
while  he  was serving the initial portion of his sentence  of  4
years  imprisonment  with 2 years suspended  for  felony  driving
while intoxicated.  He now argues that under this courts decision
in  Nygren v. State,1 he is entitled to credit for the time spent
in  residential treatment against the suspended sentence that the
          superior court imposed when it later revoked his probation.  But
our  decision  in  Nygren  is  based on  AS  12.55.025(c),  which
guarantees  credit for time served pending trial, sentencing,  or
appeal.   Tripletts  residential treatment on parole,  therefore,
does not qualify for credit under this statute.

          Facts and proceedings

          On  August  16, 2002, Superior Court Judge  Beverly  W.
Cutler  sentenced  Triplett to 4 years imprisonment with 2  years
suspended  for felony driving while intoxicated.2  The conditions
of Tripletts probation required him to complete a substance abuse
program  at  the  direction of his probation  officer,  including
residential treatment of up to one year.
          Triplett  reported  to prison to serve  the  initial  2
years  of  his sentence.  Then the parole board granted  Triplett
discretionary  parole  release  to  the  Salvation   Army   Adult
Rehabilitation  Program.   Triplett completed  168  days  in  the
program.   Triplett  was  also subject to  probation  supervision
while he was in residential treatment.
          Triplett continued on probation after he completed  his
parole.  He committed probation violations in May 2005 and  March
2006,  which  resulted in short jail sentences.   Then,  in  July
2006,   Triplett  violated  his  probation  again  by   consuming
alcoholic beverages.  On September 15, 2006, Superior Court Judge
Eric  A.  Aarseth  revoked Tripletts probation  and  imposed  the
balance of his suspended sentence.
          After  his  probation  was revoked,  Triplett  filed  a
motion  requesting  Nygren  credit  for  the  time  he  spent  in
residential  treatment.   Judge  Aarseth  eventually  ruled  that
Nygren  did not apply in Tripletts case because the parole board,
and not the superior court, had ordered Triplett into residential
treatment.  Triplett now appeals to this court.

          Triplett  is not entitled to receive credit  under
          Nygren  for  time that was not served pending  his
          trial, sentencing, or appeal

          Alaska Statute 12.55.025(c) requires a sentencing judge
to  give  a  defendant credit for time spent in  custody  pending
trial, sentencing, or appeal.  The interpretation of this statute
is a legal issue that we review de novo.3
          In  Lock  v. State,4 the Alaska Supreme Court concluded
that,  for  purposes  of  this statute,  time  spent  in  custody
includes time spent in residential treatment as a condition of an
order  suspending the imposition of sentence.5  Then, in  Nygren,
this  court held that a defendant is similarly entitled to credit
for  time spent in residential treatment while released on  bail,
as   long   as   the  defendant  is  subjected  to   restrictions
approximating those experienced by one who is incarcerated.6
          Both Lock and Nygren are based on AS 12.55.025(c),  and
neither decision altered the statutory requirement that the  time
in  custody  be  spent  pending  trial,  sentencing,  or  appeal.
Indeed, the Lock court specifically recognized that a probationer

could  not claim that the time he spent on probation was  pending
sentencing unless the probation was ordered as a condition  of  a
suspended imposition of sentence:
          [I]n  Paul  [v. State, 560 P.2d. 754  (Alaska
          1977)],  the  trial  court,  pursuant  to  AS
          12.55.080,  actually  imposed  sentence   but
          suspended the execution of a portion thereof.
          Thus,  Paul could not claim that the time  he
          spent  on  probation  was  pending  .   .   .
          sentencing within AS 11.05.040.[7] [In  Locks
          case]   the   imposition  of   sentence   was
          suspended  pursuant to AS  12.55.085(a),  but
          could   be  pronounced  upon  revocation   of
          probation at any time after the suspension of
          the  sentence within the longest  period  for
          which   the   defendant   might   have   been
          sentenced.   The time Lock spent on probation
          in   Family   House  and  Akeela  House   was
          therefore  literally pending . . . sentencing
          within the language of AS 11.05.040.[8]
          This court also noted this distinction when we followed
Lock  in  the   Nygren case:  [I]n Paul the court had  imposed  a
sentence and then suspended it, so that Paul could not claim that
the time he spent on probation was pending . . . sentencing under
former AS  So both Lock and Nygren recognized that  a
probationer  does not receive credit for time spent on  probation
after a court imposes sentence.
          Triplett  argues  that a decision on this  basis  would
reverse  a  substantial  and  long-established  body  of   Alaska
sentencing jurisprudence.  But for this proposition he cites Lock
and  Nygren, cases which, as just discussed, recognized that time
served  on  probation  is  not  pending  sentencing  unless   the
imposition  of  sentence  has  been  suspended.   He  also  cites
Matthew v. State,10 a case where we recently reserved decision on
this very question.11  These citations do not demonstrate a long-
established jurisprudence.  On the contrary, the limited case law
on this issue recognizes that credit for residential treatment is
limited to time served pending trial, sentencing, or appeal.
          It is important to note that this case does not involve
the  application of AS 12.55.027, a new statute that  applies  to
sentences  imposed  on  or after July 1, 2007.12    Triplett  was
sentenced  before  this  new statute  became  effective,  and  we
express no opinion on the meaning or application of this statute.
            Triplett  did  not  spend  his  time  in  residential
treatment while pending trial, sentencing, or appeal, so  he  did
not  qualify  for credit under AS 12.55.025(c) for  the  time  he
served   in   treatment.   Judge  Aarseth,  therefore,  correctly
concluded  that Triplett was not entitled to credit  against  the
sentence the judge imposed when he revoked Tripletts probation.


          We  therefore  AFFIRM the superior court order  denying
          Triplett credit for the time he served in residential treatment.

     1   658 P.2d 141 (Alaska App. 1983).

     2  Former AS 28.35.030(a)(1), (n) (2000).

     3  See Hammock v. State, 52 P.3d 746, 751 (Alaska App.

     4  609 P.2d 539 (Alaska 1980).

     5  Id. at 545.

     6  658 P.2d at 146.

     7  Former AS 11.05.040 was essentially reenacted as AS
12.55.025(c).  See Nygren, 658 P.2d at 142 n.1.

     8  Lock, 609 P.2d at 543 (first emphasis added) (footnotes
and internal citations omitted).

     9  Nygren, 658 P.2d at 145.

     10   152 P.3d 469 (Alaska App. 2007).

     11  Id. at 472.

     12  See ch. 24,  36(a), SLA 2007.

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