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State v. Shetters (12/23/2010) ap-2288

State v. Shetters (12/23/2010) ap-2288

        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 Courts: 

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                                                           Court of Appeals No. A-10378 
                               Appellant,                 Trial Court No. 3AN-05-5437 Cr 

                       v.                                          O   P  I  N  I  O  N 
                                                              O N    R E H E A R I N G 

                                                          No. 2288    -   December 23, 2010 

                Appeal     from   the  Superior    Court,  Third   Judicial   District, 
                Anchorage, Michael L. Wolverton, Judge. 

                Appearances:     John   K.   Bodick,   Assistant   Attorney   General, 
                Criminal   Division   Central   Office, Anchorage, and   Daniel   S. 
                Sullivan, Attorney General, Juneau, for the Appellant.         Tracey 
                Wollenberg, Assistant Public Defender, and   Quinlan Steiner, 
                Public Defender, Anchorage, for the Appellee. 

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

                MANNHEIMER, Judge. 

                The State of Alaska has petitioned us to reconsider two aspects of our 

decision in this case, State v. Shetters, __ P.3d __, 2010 WL 3929245 (Alaska App. 


----------------------- Page 2-----------------------

                 First, the State asks us to reconsider - and withdraw - the following 

italicized portion of the statement we made at the conclusion of our earlier opinion: 

                 [W]hen   the   Parole   Board       orders   a   mandatory   parolee   to 
                 reside at a correctional restitution center, a halfway house, or 
                 any    other   non-prison     correctional     center,   the  mandatory 
                 parolee   is   entitled   to  both   (1)   credit   for   time   served   and 
                 (2)  good   time   credit   corresponding   to   the   period   of   their 
                 enforced residence at the correctional center if the Board later 
                 revokes their parole and orders them to serve some or all of 
                 their remaining sentence. 

Shetters, 2010 WL 3929245 at *7. 

                 The State argues that the only issue presented in this appeal is whether 

parolees in Shetters's situation should receive good time credit - and that we should not 

have reached any conclusion as to whether such parolees are entitled to credit for time 

served.  The State contends that we erred in deciding this issue because "[this issue] was 

not raised or argued in the trial court" nor was it "raised or briefed on appeal". 

                 The State suggests that we may have been confused concerning the status 

of the "credit for time served" issue -  i.e., confused as to whether this issue was in 

dispute - because the Parole Board did grant Shetters credit against his sentence for the 

time   he   served   at   the   halfway   house.    The   State   argues   that   we    should    not   have 

interpreted the Parole Board's action as an acknowledgement that all similarly situated 

parolees are entitled to credit against their sentences for the time they spend in halfway 

houses or other non-prison correctional centers after the Parole Board orders them to 

reside there. Instead, the State contends that Shetters received credit for time served only 

because the Parole Board, in its discretion, chose to give Shetters this credit against his 


                                                   - 2 -                                               2288

----------------------- Page 3-----------------------

                 The State's argument rests on two basic assertions.   First, the State asserts 

that parolees who are ordered by the Parole Board to reside at non-prison correctional 

centers might be entitled to good time credit for the time they spend in the correctional 

center, but these same parolees would not be entitled to credit for time served.  Second, 

the State asserts that the Parole Board may, in its discretion, choose either to award or 

withhold credit for time served when the Board orders a parolee to reside at a non-prison 

correctional center. 

                 We reject both of these assertions. 

                 The   good   time credit statute, AS 33.20.010(a), states that a prisoner is 

entitled to a deduction of one-third from their sentence of imprisonment "if the prisoner 

follows the rules of the correctional facility in which the prisoner is confined."                  As we 

held in  Valencia v. State, 91 P.3d 983, 984 (Alaska App. 2004), this statute means that 

a person is entitled to good time credit only when they are serving their sentence. 

                 As our decision in  Valencia illustrates, there are times when a person is 

confined to a jail-like facility and is entitled to credit for time served, but not entitled to 

good time credit.      But the converse is not true; there are no situations where a person 

might be entitled to good time credit but not credit for time served. 

                 Thus,   the   whole   debate   in   Shetters's   case   -   the   debate   as   to   whether 

Shetters   was   entitled   to   good   time   credit   for   the   time   he   spent   at   the   correctional 

restitution center - was premised on the fact that Shetters was entitled to credit against 

his sentence for the days he spent at the correctonal restitution center. 

                 This brings us to our second point:  We reject the State's position that when 

the Parole Board orders a parolee to reside at a non-prison correctional center, the Parole 

Board has the discretion either to award the parolee credit for time served or to withhold 

this credit from the parolee.  We hold instead that an award of credit for time served does 

not rest within the discretion of the Parole Board, any more than it rests within   the 

                                                   - 3 -                                               2288

----------------------- Page 4-----------------------

discretion of a sentencing court.  A parolee's entitlement to credit for time served hinges 

on the reasons for, and the conditions of, the parolee's confinement.  For any identified 

set of circumstances, all parolees in that situation either will or will not be entitled to 

credit for time served. 

                 The    basic   idea   behind   "credit   for  time   served"    is  to  make    sure   that 

defendants who receive the same sentence of imprisonment spend the same total amount 

of time in jail.     Under AS 12.55.025(c), defendants who remain incarcerated before 

judgement   is   entered   against them   receive   credit   against   their   sentence   for   this   pre­ 

judgement incarceration - so that they serve no more jail time than defendants who 

ultimately receive the same sentence but who were able to secure bail release pending 

trial and sentencing. 

                 Because   this   is   the   rationale   behind   giving   defendants   credit   for   time 

served,   a   sentencing   judge   has   no   discretion   regarding   whether   to   grant   or   deny   a 

defendant credit for the time they spent incarcerated before sentencing.  Credit for time 

served is not a discretionary reduction of the defendant's post-judgement time to serve. 

Instead, the defendant is either entitled to this credit or not, under the terms of the statute. 

Herrin v. State, 93 P.3d 477, 478 (Alaska App. 2004). 

                 In Lock v. State, 609 P.2d 539 (Alaska 1980), and in Nygren v. State, 658 

P.2d 141 (Alaska App. 1983), the Alaska Supreme Court and this Court expanded the 

situations in which a defendant is entitled to credit for time   served.                  We held that a 

defendant should receive credit for time served at a non-prison facility if the restrictions 

on freedom imposed by that facility are substantially equivalent to the restrictions of 

normal   incarceration.      Lock,   609   P.2d   at   545-46; Nygren,   658   P.2d   at   146.    But   in 

deciding whether credit for time served should be awarded under Lock and Nygren, the 

same principle applies:        All defendants in the same situation either are entitled to the 

credit or not; the award of this credit is not discretionary. 

                                                   - 4 -                                              2288

----------------------- Page 5-----------------------

               This principle also applies when the Parole Board initiates proceedings to 

revoke a person's mandatory parole.      Under AS 33.16.240(f), "[t]ime spent in custody 

pending revocation proceedings shall be credited toward the [parolee's] unexpired term 

of imprisonment".  If the Parole Board orders a parolee to reside at a facility pending the 

Board's final decision on the petition to revoke parole, the parolee either will or will not 

be entitled to credit against their sentence for the time served at that facility, depending 

on whether the parolee's residence at that facility qualifies as "custody" for purposes of 

the statute.  But among parolees who are similarly situated, the Parole Board has no 

discretion to grant this credit to some and deny it to others. 

               (As an ancillary argument, the State suggests that if credit for time served 

is granted to parolees who are ordered to reside in a non-prison correctional center by the 

Parole Board, this might conceivably conflict with the rules codified in AS 12.55.027 

governing credit for time served in treatment programs.       The State does not assert that 

any such conflict exists in Shetters's case, and we therefore express no opinion on the 

issue of whether such a conflict might conceivably exist in other situations.) 

               The State makes one final request in its petition for rehearing:     The State 

asks us to decide whether parolees in Shetters's situation should be required to pursue 

their claims for good time credit by filing a petition for post-conviction relief, rather than 

by filing a motion for relief in their underlying criminal case. 

               In the superior court, Shetters filed his request for good time credit as a 

motion in his underlying criminal case. In its response, the State argued that this was the 

wrong procedural vehicle, and that Shetters should be directed to pursue his claim in a 

separate petition for post-conviction relief. 

               Superior Court Judge Michael L. Wolverton ultimately agreed with the 

State: he declared, "I will make the ruling that this should be filed as a PCR [i.e., a post­ 

                                             - 5 -                                        2288

----------------------- Page 6-----------------------

conviction relief action]."      But no sooner had Judge Wolverton announced this ruling 

than the State's attorney asked the judge not to implement his ruling. 

                The State's attorney pointed out that, if the proceeding was reclassified as 

a post-conviction relief action, the superior court would have no authority to release 
Shetters on bail while the action was pending. 1          This being so, and because Shetters was 

seeking only seven days of good time credit, Shetters would certainly serve the entire 

contested seven days before the parties filed their initial post-conviction relief pleadings. 

                To the State's attorney's credit, he forthrightly told Judge Wolverton that 

the State's primary interest was not to force Shetters to serve the contested seven days, 

but rather to obtain a speedy resolution of the legal question presented - the question 

of whether parolees in Shetters's position are entitled to good time credit. 

                Because the material facts of Shetters's case were not disputed, and because 

the issue to be resolved was purely one of law, the State's attorney indicated that he was 

willing to waive the procedural requirements that govern post-conviction relief litigation. 

The State's attorney urged Judge Wolverton to overlook any procedural irregularities 

and to simply rule on Shetters's good time credit claim - so that, if Judge Wolverton 

ruled in Shetters's favor, the State could immediately begin the appeal process. 

                Judge Wolverton then ruled in Shetters's favor on the underlying issue of 

Shetters's entitlement to good time credit, and the State filed this appeal. 

                One   of   the   issues   that   the   State   briefed   on  appeal   (and  that   Shetters 

responded to) was the procedural issue of whether Shetters should have pursued his 

claim in a post-conviction relief action rather than by a motion filed in the underlying 

criminal case.  We did not address this procedural question in our earlier decision in this 

    1   See AS 12.30.040(c):      "A person ... who has filed an application for post-conviction 

relief may not be released [on bail] until the court [grants relief and] enters an order vacating 
all [of the person's] convictions." 

                                                  - 6 -                                               2288 

----------------------- Page 7-----------------------

case, and the State asks us to resolve the issue now.   But given the procedural history of 

this litigation, this issue is moot. 

                 As we just explained, Judge Wolverton ruled in the State's favor on this 

procedural   issue:     the   judge   was   going   to   force   Shetters   to   start   over   and   file   new 

pleadings that complied with the procedural requirements of a post-conviction relief 

action.   But as soon as Judge Wolverton made this ruling, the State asked him not to 

implement   his   ruling;   rather,   the   State's   attorney   encouraged   the   superior   court   to 

overlook the procedural irregularity and (in effect) "cut to the chase" - that is, issue a 

final ruling on Shetters's underlying good time credit claim.                  By   doing   so, the State 

effectively conceded that it would suffer no prejudice if Shetters failed to conform to the 

procedural requirements that govern post-conviction relief actions. In other words, these 

procedural requirements had no importance to the litigation of Shetters's case - and, 

thus, the question of whether the State might otherwise have been entitled to insist on 

those procedural requirements is moot. 

                 This Court has the authority to decide a moot issue if the issue is one of 

substantial public importance and if the issue is likely to repeatedly evade review if the 

normal   mootness        doctrine    is  applied.   Here,   the    issue  may    be   one   of  substantial 

importance, but there is no reason to believe that application of the mootness doctrine 

will repeatedly defeat appellate review of this issue in future cases. 

                 For this reason, we decline to decide whether a petition for post-conviction 

relief is the only procedural vehicle available to parolees in Shetters's situation who wish 

to pursue a claim for good time credit. 

                                                   - 7 -                                               2288

----------------------- Page 8-----------------------


               For the reasons explained here, we reject the arguments raised by the State 

in its petition for rehearing, and we re-affirm the conclusion we reached in our earlier 

decision:  mandatory parolees who are remanded to custody in a correctional restitution 

center, a halfway house, or other non-prison correctional center by order of the Parole 

Board     are  entitled  to  both   (1)  credit  for  time   served   and  (2)  good    time   credit 

corresponding to the period of their confinement if the Board later revokes their parole 

and orders them to serve some or all of their remaining sentence.   The judgement of the 

superior court is AFFIRMED. 

                                               - 8 -                                           2288
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