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George v. State (8/2/2013) ap-2397

George v. State (8/2/2013) ap-2397

                                                          NOTICE  



          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.   



                                      303 K Street, Anchorage, Alaska  99501
  

                                                  Fax:  (907) 264-0878
  

                               E-mail:  corrections @ appellate.courts.state.ak.us
  



                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DAVID P. GEORGE,                                            )  

                                                            )            Court of Appeals No. A-11050 

                                      Appellant,            )            Trial Court No. 1JU-10-570 CR  

                                                            ) 

                  v.                                        )  

                                                            )  

STATE OF ALASKA,                                            )  

                                                            )  

                                      Appellee.             )  

                                                            )  

DUWAINE E. PRICE,                                           )  

                                                            )            Court of Appeals No. A-10864 

                                      Appellant,            )            Trial Court No. 1JU-10-397 CR  

                                                            ) 

                  v.                                        )  

                                                            )                      O P I N I O N  

STATE OF ALASKA,                                            )  

                                                            )  

                                      Appellee.             )  

                                                            )             No. 2397 - August 2, 2013  



                    Appeals from the Superior Court, First Judicial District, Juneau,  

                                         

                    Larry D. Card, Judge, and Patricia A. Collins, Judge.  



                    Appearances:  Douglas O. Moody, Assistant Public Defender,  

                    and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                    Appellants,   John   K.   Bodick,   Assistant   Attorney   General,  

                    Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                    for the Appellee.  


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

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

                                                                                    *  

                                Supreme Court Justice.   



                                Judge ALLARD.  



                                David P. George and Duwaine E. Price separately appeal from the superior       



court's denial of good time credit for time they spent at a halfway house as a condition     



of probation. We consolidated these appeals to decide whether AS 33.20.010, the statute                                                                    



governing "good time credit," applies to time that a probationer spends at a halfway   



house under a condition of probation.                                                    For the reasons set out below, we find that it does                                        



not, and we affirm the judgments of the superior courts.  



                               Facts and procedural posture  



                                In April 2007, David George pleaded guilty to misconduct involving a  

                                                                                                                                                                                

controlled substance in the third degree.1 

                                                                                                He was sentenced to 3 years incarceration, with  



 18 months suspended and 3 years of probation.   



                               After George violated the conditions of his probation, the superior court  



                                                          

modified  his  probation  conditions  to  include  up  to  45  days  of  in-patient  residential  



                                    

treatment  and  up  to  6  months  placement  at  a  halfway  house.    George  completed  a  



                                                                                                                                                                      

residential treatment program at the Bill Brady Healing Center and was placed at Glacier  



Manor, a halfway house, before and after the treatment program.  



                                George subsequently violated the conditions of his probation a second time,  



and the superior court then modified his conditions to permit placement at a halfway  



house for up to one year. George was later placed at Glacier Manor for approximately  



                *       Sitting  by  assignment  made  pursuant  to  article  IV,  section   16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  



                1       AS 11.71.030(a)(1).  



                                                                                                     2                                                                                                   2397  


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

one month.   



                    After finding that George had violated the conditions of his probation a  



third  time,  the  court  revoked  George's  probation  and  imposed  the  remainder  of  his  

                                 



suspended time (approximately 15 months).  The court gave George day-for-day credit  

                                                                                                      



for the time spent as a condition of probation at the Bill Brady Healing Center and  

                                                                                        



Glacier Manor, but did not give him good time credit.  



                    George filed a post-conviction relief application requesting good time credit  



under AS 33.20.010(a) for the time spent at Glacier Manor.  The State filed a motion for  

                                                     

                                                                                               



summary disposition, arguing that George was not entitled to good time credit under this  

                                                                                                         



statute because he was a probationer residing at the halfway house as a condition of  

                                                                                             



probation, not a "prisoner" serving a term of imprisonment at a correctional facility.  

                       



After  holding  an  evidentiary  hearing,  the  superior  court  agreed  with  the  State's  



interpretation of the statute and denied the application for post-conviction relief.  

                    In August 2001, Duwaine Price pleaded guilty to driving while intoxicated,2  



                                                                              3  

and failure to stop at the direction of a peace officer.    He was sentenced to 300 days  



               

with 240 days suspended for the driving while intoxicated, and to 5 years with 2 years  



suspended for the failure to stop.  



                    In August 2005, the State petitioned to revoke Price's probation, alleging  

                                                                                         



various violations of his conditions.  Because the superior court did not believe that it  

                                                       



could order Price into a halfway house as a condition of bail release, the parties agreed  



that, pending adjudication, Price would be released on bail and would "voluntarily"  



check into a halfway house.  Price resided at Glacier Manor for approximately three  



months.    The  superior  court  later  issued  an  order  modifying  Price's  conditions  of  



          2     AS 28.35.030(a).  



          3     AS 28.35.182(b).  



                                                               3                                                           2397  


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

probation adding a provision for placement at a halfway house, and Price continued to  



reside at Glacier Manor for approximately three weeks pursuant to the new condition.  



                    In the spring of 2006, Price violated his probation again and was ordered  

                                             



to serve 2 years of his suspended time.  Price was given day-for-day credit for all of the  

                                  



time he spent at Glacier Manor while on probation but he was not given any good time  

                                                                                   



credit.  



                    Price later filed a post-conviction relief application requesting good time  

                                                                                                                   



credit for the time he spent at Glacier Manor.  The superior court denied Price good time  

                                                                                        



credit for time spent at Glacier Manor while on bail release, finding that Price voluntarily  

                                                                 



resided at the halfway house during that time. Additionally, the superior court found that  

                                                                                         



Price was not entitled to good time credit for time spent at Glacier Manor while on  

                                                                        



probation, because Price was not a prisoner serving a term of imprisonment.  



                    These appeals followed.  



                    Is a probationer entitled to good time credit under AS 33.20.010 for time  

                    spent at a halfway house as a condition of probation?  

  

                    On appeal, Price and George argue that because parolees are entitled to  

good time credit for time spent at a halfway house,4 probationers should similarly be  



entitled to good time credit.  



                                                           

                    Whether a probationer is entitled to good time credit under AS 33.20.010  



                                                                                                   5  

is a question of statutory interpretation, which we review de novo.   



                                                                                                  

                    Alaska Statute 33.20.010 provides that a prisoner "is entitled to a deduction  



                                                                                                                

of  one-third  of the term  of imprisonment ... if the prisoner follows the rules  of  the  



          4      See Shetters v. State , 246 P.3d 338 (Alaska App. 2010).  



          5      Alto v. State , 64 P.3d 141, 142 (Alaska App. 2003).   



                                                                4                                                            2397  


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

correctional facility in which the prisoner is confined."                         "By its terms ... AS 33.20.010  

applies only to prisoners who are serving sentences in correctional facilities."                                6  

                                                                                                                   In State  



                                                                                                 

v. Shetters, we noted that "even though probationers are entitled to day-for-day credit  



against  their  sentences  for  the  time  they  spent  in  jail-like  residential  facilities  as  a  



condition of probation, they are not entitled to a corresponding good time credit under  

                                                                                                      

AS 33.20.010."7  

                           We distinguished parolees from probationers because probation is "an  



                                                               

act of grace and clemency," intended as a more lenient alternative to imposition of the  

statutory  penalty  for  the  defendant's  crime.8  

                                                                        In  contrast,  mandatory  parole  is  an  

established variation on imprisonment.9                                                

                                                             Thus, we found that a prisoner released on  



mandatory  parole  is  still  technically  a  prisoner  serving  his  or  her  sentence  of  

imprisonment and is therefore covered by the good time statute.10  

                                                                                                   



                    The   distinction   we           recognized   in   Shetters   between                 parolees   and  



probationers is bolstered by the statutory definitions of "parolee" and "probation."  A  



"parolee" is a "prisoner" who remains subject to the custody and jurisdiction of the  



                                         11  

Department of Corrections.                   In contrast, "probation" is "a procedure under which a  

                                                                                                          



defendant  ...  is  released  by  the  superior  court  subject  to  conditions  imposed  by  the  



          6      Valencia v. State, 91 P.3d 983, 984 (Alaska App. 2004).  



          7     246  P.3d at 334, on reh'g 246 P.3d 338 (Alaska App. 2010) (citing  Valencia, 91  



P.3d at 983-84; AS 12.55.086(c); and State v. Bourdon, 193 P.3d 1209, 1213-14 (Alaska  

App. 2008) (Mannheimer, J., concurring)).  



          8     Shetters,  246 P.3d at 336 (quoting State v. Staael, 807 P.2d 513, 517 (Alaska App.  



1991)).  



          9     Id . (citing Staael, 807 P.2d at 517-18).  



          10    Id . at 336-37.  



          11    AS 33.16.900(9); AS 33.16.020(a).  



                                                              5                                                        2397
  


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

           12  

court."         



                                                                                 

                     In addition, while a sentencing court can designate a particular treatment  



program or facility as a condition of probation, only the Department of Corrections can  

specify  where  a  prisoner  serves  a  term  of  imprisonment.13  

                                                                                                      Therefore,  when  the  



                                                                                               

Department  of  Corrections  places  a  parolee  at  a  halfway  house,  the  Department  of  



                                                                                           

Corrections is exercising its authority to determine where the defendant should serve his  

or  her  term  of  imprisonment.14  

                                                      The  superior  court  does  not  have  that  authority;  its  



designation of a halfway house is predicated on its authority to impose conditions of  



                         

probation  that  are  "reasonably  related  to  the  rehabilitation  of  the  offender  and  the  



                                                                                                     15  

protection of the public and ... not unduly restrictive of liberty."                                     



                                                                                                                   

                     Price  and  George  argue  that  it  is  illogical  to  grant  good  time  credit  to  



                     

parolees but not to probationers who reside at the same halfway house.  They assert that  



                                                                        

focusing on the mechanism for placement at a facility, rather than on the nature of the  



facility itself, produces arbitrary and unfair results.    



                                                                                              

                     However, the results of this distinction are not arbitrary when viewed from  



a policy perspective.  The legislative purpose of the good time statute is to provide  



                                                                                      16  

                                                                                           

prisoners with an incentive to remain on good behavior.                                  Defendants on probation  have  



                                                    

a  different  incentive  for  good  behavior  -  if  they  violate  the  conditions  of  their  



           12    AS 33.05.080(2).
  



           13    AS 33.30.061(a); Bourdon , 193 P.3d at 1213 (Mannheimer, J., concurring);                                       State
  



v. Combs, 64 P.3d 135, 137 (Alaska App. 2003).  



           14    See Bourdon, 193 P.3d at 1211, cited with approval in Shetters, 246 P.3d at 335.   



           15    See  Dawson v. State , 894 P.2d 672, 680 (Alaska App. 1995) (citing Roman v.  



State, 570 P.2d 1235, 1240 (Alaska 1977)).  



           16    Valencia, 91 P.3d at 984 (citing               Briggs v. Donnelly , 828 P.2d 1207, 1209 (Alaska     



App. 1992)).  



                                                                   6                                                             2397
  


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

probation, the court can revoke their probation and require them to serve the remainder  



                          17  

of their sentence.    For these reasons, we previously found that "the Alaska Legislature  



validly  restricted  good  time  credit  to  prisoners  who  are  serving  their  sentences  in  

prison." 18  We acknowledge that this distinction leads to different treatment for parolees  



and probationers who are placed as a condition of probation at a halfway house, but this  

                           



is the policy the Alaska Legislature has adopted.  



                    Price is not entitled to good time credit regardless of  whether he stayed at  

                                       

                    Glacier Manor voluntarily or as a condition of his probation.  

  

                    Price also argues that the superior court erred in finding that he stayed at  

                                                                                                                      



Glacier Manor voluntarily during his bail release, rather than staying there as a condition  

                                                               



of probation.  Because only prisoners are entitled to good time credit, Price would not  



                                         

be  entitled  to  good  time  credit  regardless  of  whether  he  stayed  at  Glacier  Manor  



                                                                

voluntarily or as a condition of probation. We therefore do not decide whether Price was  



at Glacier Manor voluntarily or as a condition of his probation.  We note that Price was  



granted day-for-day credit for this time.  



                    Price's claim is not barred by the statute of limitations.  



                                                      

                    The State argues that Price's claim for good time credit is barred by the  



                                19  

                                                                                                   

statute of limitations.             The State did not raise this claim below.  Post-conviction relief  



          17    AS 33.05.070(b).  



          18     Valencia, 91 P.3d at 984.  



          19    AS 12.72.020(a)(4) ("A claim may not be brought under AS 12.72.010 or the  



Alaska  Rules  of  Criminal  Procedure  ...  if  one  year  or  more  has  elapsed  from  the  final  

administrative decision of the Board of Parole or the Department of Corrections that is being  

                                                                                                                        

collaterally attacked.").  



                                                                7                                                          2397
  


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

actions are generally governed by the rules of civil procedure, which require parties to   

plead the statute of limitations in their answer.20  Because the State did not raise this issue  



until appeal, it is waived.21  



  



                    Conclusion  



                   Because  Price  and  George  resided  at  Glacier  Manor  as  a  condition  of  



                                                                                                      

probation, and not as prisoners serving a term of imprisonment, the judgments of the  



superior court are AFFIRMED.  



          20    Nelson v. State , 273 P.3d 608, 611 (Alaska 2012); Alaska R. Civ. P. 8(c).  



          21    See Barrett v. Byrnes, 556 P.2d 1254, 1255 (Alaska 1976).  



                                                              8                                                           2397  

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