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State v. Howard (9/18/2015) ap-2475

State v. Howard (9/18/2015) ap-2475


            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

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                                                                      Court of Appeals No. A-11430  

                                     Appellant,                       Trial Court No. 4AK-08-31 CR  


                                                                                  O P I N I O N  


                                     Appellee.                       No. 2475 - September 18, 2015  

                   Appeal fromthe Superior Court, Fourth Judicial District, Bethel,


                   Charles W. Ray Jr., Judge.


                   Appearances:  Michael  Sean  McLaughlin,  Assistant  Attorney

                   General,      Office      of   Special      Prosecutions        and     Appeals,


                   Anchorage, and Michael C. Geraghty, AttorneyGeneral, Juneau,


                   for the Appellant. Catherine Boruff, Assistant Public Defender,


                   and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the



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



                   Senior Superior Court Judge.   

                   Judge ALLARD, writing for the Court.

                   Chief   Judge   MANNHEIMER,   with   whom   Senior   Judge


                   ANDREWS joins, concurring.

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

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

                                                The State appeals an order by the superior court discharging Leonard J.                                                                                                                                                                                          

Howard from probation and granting him a 12-month credit against his sentence based                                                                                                                                                                                                                

on a legal theory that was never litigated by the parties.  On appeal, Howard concedes                                                                                                                                                                                                

that the superior court's ruling was flawed, and he agrees that he is not entitled to the 12-                                                                                                                                                                                                               

month credit.                                     

                                                Howard argues,however, that heis                                                                                            entitled to dischargefromhisprobation.                                                                                                          

He asserts that he is owed jail-time credit for time he spent in a halfway house and in                                                                                                                                                                                                                         

residential treatment while he was on parole and probation. Howard further asserts that                                                                                                                                                                                                                   

once this jail-time credit is properly applied to his remaining sentence, there will be no                                                                                                                                                                                                                     

more   time   to   serve   in   his   case.     He   therefore   urges  this Court                                                                                                                                                              to   affirm the                                    order  

discharging him from probation on this alternative ground.                                                                                                                              

                                                For the reasons explained here, we agree with the parties that the superior                                                                                                                                                               

court   erroneously   gave   Howard   a   12-month  credit   against   his   sentence.     We   also  

conclude that we cannot determine from the current record whether Howard is entitled                                                                                                                                                                                                         

to the jail-time credit he seeks.  Accordingly, we vacate the superior court's order and                                                                                                                                                                                             

remand   the   case   to   the   superior   court   for   further   proceedings   consistent   with   this  


                              Factual and procedural background  


                                                In  2008,  Leonard  Howard  pleaded  guilty  to  third-degree  assault.                                                                                                                                                                                       He  


received a sentence of 48 months' imprisonment with 45 months suspended (3 months  


to serve), and he was also sentenced to supervised probation for 5 years.  


                                                Over the next three years, Howard's probation was revoked four times. At  


Howard's first probation revocation hearing, the superior court imposed 3 months of  


Howard's suspended time (leaving 42 months still suspended on Howard's original  


                                                                                                                                                   - 2 -                                                                                                                                           2475

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

 sentence).   After serving this sentence (2 months of actual imprisonment, plus 1 month                                                                      


 of good-time credit),                                                                        

                                            Howard was released on probation.  


                           At  Howard's  second  probation  revocation  hearing,  the  superior  court  


 imposed 6 months to serve (leaving 36 months still suspended on Howard's original  


judgment). After serving this sentence (4 months of actual imprisonment, plus 2 months  


 of good-time credit), Howard was again released on probation.  


                           At Howard'sthirdprobationrevocationhearing,thesuperior court imposed  


24 months to serve (leaving 12 months still suspended on Howard's original judgment).  


 This 24-month sentence was sufficiently long enough to trigger the requirements of  



mandatory parole under AS 33.20.040(a).                                                  Thus, after serving two-thirds of the 24- 


month sentence for his third probation revocation (i.e., after serving 16 months), Howard  


was released on mandatory parole and required to serve a parole term equivalent to the  


 good time awarded on his 24-month sentence (i.e., he was required to serve 8 months  



                                                       In addition, because Howard was still on probation, and still  

under parole supervision). 


had 12 months of suspended time on his original sentence, he was not done with his  


probation obligations.  



                           Under Alaska law, probation runs concurrently with parole.                                                               Thus, when  


Howard was released from prison after serving his sentence for his third probation  


revocation, he was under the concurrent jurisdiction of both the Parole Board and the  


 superior court.  This meant that if Howard violated the terms of his parole, he would be  

       1      See AS 33.20.010; AS 33.20.030.  

       2      AS 33.20.040(a) provides that when a prisoner serving two or more years of active                                                                 

 imprisonment is released because of good-time credit, the prisoner must be released on   

mandatory parole for a term equal to their good time.   




       4      AS 33.20.040(c).  

                                                                                 - 3 -                                                                          2475

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

subject to parole revocation by the Parole Board, and the Board could potentially revoke                                                                                                                                                               

the 8 months of good-time credit that he was serving on parole and send him back to                                                                                                                                                                                  

prison   to   serve   those   8   months.     In   contrast,   if   Howard   violated   the   terms   of   his  

probation, he would be subject to probation revocation by the superior court, and the                                                                                                                                                                             

court could potentially impose some or all of the remaining 12 months of suspended jail                                                                                                                                                                           

time from his original sentence.                                      

                                         Although Howard                                          faced different consequences for violating hisparoleand                                                                                                        

probation, the same person served as his parole and probation officer, and that person                                                                                                                                                                

was simultaneously tasked with overseeing Howard's compliance with both his parole                                                                                                                                                                      

and probation conditions.                                                      5  


                                         According to the pleadings Howard filed in the superior court, Howard was  


scheduled  to  be  released  from  incarceration  for  his  third  probation  revocation  on  


February 1, 2011, but he was not actually released from custody on that day.  Instead,  


Howard claims that his parole/probation officer directed him to reside at the Tundra  


Center, a halfway house in Bethel.  Howard apparently remained at this halfway house  


for 132 days, until a treatment bed opened up at the Phillips Ayagnirvik Treatment  


Center, a residential substance abuse treatment program in Bethel.  Howard spent 32  


days in this residential treatment program and was released on July 15, 2011.  That fall,  


Howard was discharged from parole, having successfully completed his parole without  


any violations or revocations.   (We do not know the exact date when Howard was  


discharged from parole, because his parole discharge report is not part of the record.)  

           5         See AS 33.05.040(5) (when a probation officer performs duties with respect to persons                             

on  parole,  the  probation  officer  is  deemed  a  parole  officer);  AS   33.16.190  (a  person  

appointed as a probation officer or as a parole officer may discharge the duties of either                                                                                                                                                                


                                                                                                                              - 4 -                                                                                                                       2475

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                                                                             Although Howard was discharged from parole, he was still on probation,                                                                                                                                                                                                                                                                                                      

 and he still had 12 months of suspended time on his original sentence that the superior                                                                                                                                                                                                                                                                                                                                                                             

 court could impose if Howard violated the terms of his probation.                                                                                                                                                                                                                                                               

                                                                              In early 2012, Howard again violated the terms of his probation, and the                                                                                                                                                                                                                                                                                                                                             

 State filed a fourth petition to revoke probation.                                                                                                                                                                                                                                    Superior Court Judge                                                                                                              pro tem                                          Natalie  

Finn presided over Howard's fourth probation revocation hearing. At the hearing, Judge                                                                                                                                                                                                                                                                                                                                                                                              

Finn revoked Howard's probation and imposed 6 months of Howard's remaining 12                                                                                                                                                                                                                                                                                                                                                                                                                        

months of suspended jail time.                                                                                                                                                      However, Judge Finn also found that, given Howard's                                                                                                                                                                                                                    

repeated   failures at probation                                                                                                                                                   and   his ongoing substance abuse issues,                                                                                                                                                                                                                it would                                                 be  

pointless for Howard to continue on probation.                                                                                                                                                                                                                                   Judge Finn therefore ordered that once                                                                                                                                                                  

Howard served the 6-month sentence imposed for his fourth probation violation, his                                                                                                                                                                                                                                                                                                                                                                                                                 

probation   would   terminate   and   he   would   be   unconditionally   discharged   from   his  


                                                                              Instead of immediately serving this final 6-month sentence, Howard asked                                                                                                                                                                                                                                                                                                                              

that his remand date be postponed so that he could litigate whether he might be entitled                                                                                                                                                                                                                                                                                                                                                                                 

to   jail-time   credit   against   this  sentence   based   on   the   time   he   spent   after   his   third  

probation revocation at the halfway house and the residential treatment center.                                                                                                                                                                                                                                                                                                                                                                                               Judge  

Finn granted this request.                                                                                                                            Howard therefore remained out of custody while the parties                                                                                                                                                                                                                                                              

litigated the issue of jail-time credit.                                                                                                                                    

                                                                              BythetimeHoward's attorney                                                                                                                                                    filed themotion for jail-timecredit,Superior                                                                                                                                                             

 Court Judge Charles W. Ray Jr. had been appointed as a superior court judge in Bethel.                                                                                                                                                                                                                                                                                                                                                                                                                                    

Howard's motion was therefore assigned to Judge Ray.                                                                                                                                                                                                                                                  

                                                                              In his motion for jail-time credit, Howard argued that he had been placed                                                                                                                                                                                                                                                                                                                        

 at the Tundra Center halfway house under the authority of the Parole Board, and that he                                                                                                                                                                                                                                                                                                                                                                                                                

was therefore entitled to "                                                                                                                 Shetters" credit (                                                                                i.e., day-for-day credit plus good-time credit)                                                                                                                                                                                  

                                                                                                                                                                                                                                             - 5 -                                                                                                                                                                                                                                 2475

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


for the time he spent at the halfway house.                                                Howard calculated that he was owed a credit                                      

of 198 days for the 132 days that he spent at the halfway house.                                                           

                            Howard   further   argued   that   he   was   entitled   to   "Nygren"   credit   under  

AS   12.55.027   for  the   32   days   that   he   spent   in   residential   treatment   at   the   Phillips  



Ayagnirvik Treatment Center.                                        Adding this residential treatment center time to the 198  


days of halfway house time, Howard calculated that he was entitled to 230 days of jail- 


time credit against his current 6-month sentence - which would mean that he had  


already fulfilled his remaining 6-month sentence and was entitled to an unconditional  



                            While  the  parties  were  litigating  this  jail-time  credit  issue,  Howard  


apparently again violated the terms of his probation.  The State then filed a fifth petition  


to revoke probation.  


                            Howard movedto dismiss this fifthpetitiontorevokeprobation,contending  


that he was no longer on probation.  The State disagreed, pointing out that under the  


terms of Judge Finn's order, Howard remained on probation until he completed the 6- 


month sentence - which the State argued he had not yet done.  

       6      See State v. Shetters                     , 246 P.3d 332 (Alaska App. 2010) (holding that a parolee who  

is released on mandatory parole is still technically a prisoner, and thus entitled to good-time       

credit if placed in a halfway house or other correctional facility under the authority of the                                                                                      

Parole Board).  



              A defendant's eligibility for credit against his or her sentence for time spent in a  


residential treatment facility is governed by AS 12.55.027.  This credit is still informally  


known as "Nygren" credit because Nygren v. State, 658 P.2d 141 (Alaska App. 1983) is the  


court decision that first acknowledged a defendant's right to sentencing credit for time spent  

in treatment under jail-like conditions.  

                                                                                       - 6 -                                                                                 2475

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                                             The court order that is challenged in this appeal                                                                                                                                                                          

                                                                       The superior court now had to decide two motions: Howard's requests for                                                                                                                                                                                                                                                                                                            

Shetters   and   Nygren   credit   against   his   6-month   sentence,   and  Howard's   motion   to  

 dismiss the fifth petition to revoke his probation.                                                                                                                                                       

                                                                       The judge's initial response was to                                                                                                                                                                  order   Howard   to   submit his time-                                                                                                                          

 accounting records from the Department of Corrections.                                                                                                                                                                                                                                                         The judge explained that he                                                                                                                 

was requesting these records to determine whether Howard had been placed at the                                                                                                                                                                                                                                                                                                                                                                        

halfway house as a condition of parole or as a condition of probation, so that he could                                                                                                                                                                                                                                                                                              

 determine what, if any, jail-time credit Howard was owed.                                                                                                                                                                                                                          

                                                                       Thejudgesubsequently                                                                                                        issued alengthy written decision                                                                                                                                          inwhich hefound                                                

that Howard was entitled to be unconditionally discharged - but under a theory that                                                                                                                                                                                                                                                                                                                                                                  

neither the State nor Howard had ever raised or argued.                                                                                                                                                                                                       

                                                                       In that decision, the judge explained that he remained uncertain about                                                                                                                                                                                                                                                                                             

whether Howard was at the halfway house under the authority of the Parole Board or                                                                                                                                                                                                                                                                                                                                                                            

under the authority of the superior court (or perhaps both).                                                                                                                                                                                                                                                                      But in investigating this                                                                                          

 question, the judge discovered what he believed to be a "legal error" in Howard's case                                                                                                                                                                                                                                                                                                                                                           

-  namely, that "Howard ha[d] been ordered to [serve] a term of imprisonment greater                                                                                                                                                                                                                                                                                                                                                 

than the term permissible under his sentence."                                                                                                                                                                                                          

                                                                       The purported error identified by the judge arose as part of Howard's                                                                                                                                                                                                                                                                       

second  probation revocation.                                                                                                                              As part of the disposition for that revocation, the superior                                                                                                                                                                                                       

 court imposed a new condition of probation that authorized Howard's probation officer                                                                                                                                                                                                                                                                                                                                                

to place Howard at a halfway house for up to 12 months, at the probation officer's                                                                                                                                                                                                                                                                                                                                         



                                                                       Judge Ray concluded that this new condition of probation constituted an  


 illegal increase in Howard's sentence because it potentially subjected Howard to an  


 additional  12  months  in  custody  beyond  the  term of  imprisonment  imposed  in  his  

                                                                                                                                                                                                                         - 7 -                                                                                                                                                                                                             2475

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


 original sentence.                                          The judge then declared that "in the interest of justice," Howard's                                                                                                                   

 sentence for his second probation revocation needed to be increased to account for these                                                                                                                                                                          

  12 additional months of potential custody.                                                                                              

                                           The judge therefore ruled that Howard's sentence for his second probation                                                                                                                                 

 revocation was really 18 months to serve, not the 6 months to serve recorded in the                                                                                                                                                                                     

judgment.     This   meant,   in   the   judge's   view,   that   Howard   only   had   24   months   of  

 suspended   time   remaining   on   his   original   sentence   following   his  second   probation  

 revocation, not 36 months as previously calculated. Thus, according to the judge, when                                                                                                                                                                           

 the superior court imposed 24 months to serve at Howard's                                                                                                                                   third  probation revocation,   

 there was actually no more suspended time remaining on Howard's original sentence,                                                                                                                                                                   

 and his probation was already effectively over.                                                                                                      9  


                                           Therefore, under the judge's view of Howard's case, after Howard served  


 the 24-month sentence for his third probation revocation, Howard should have been  


 placed on parole supervision to serve his 8 months of good-time parole, but he should  


 not have been placed on concurrent probation because he was no longer on probation.  


 And, when Howard successfully completed his parole term, he should have been done  


 with all of his supervision in this case.  


                                           Because the judge concluded that Howard was not lawfully on probation  


 when the State filed its fourth and fifth petitions to revoke probation, the judge vacated  


 the judgment on the fourth probation revocation and dismissed the State's fifth petition.  

           8          See, e.g.,  Williams v. State, 924 P.2d 104, 108 (Alaska App. 1996) (holding that a                 

 condition of probation requiring the defendant to spend up to one year in a halfway house at                                                                                                                                                              

 the  discretion  of   the  probation  officer  was  lawfully imposed                                                                                                                              under  AS  12.55.100(a)(5)  

 because it was imposed as part of the original  sentence).  

           9          See  Kelly  v.  State,  842  P.2d  612,  613  (Alaska  App.  1992)  (declaring  that  a  


 probationary period is "meaningless" unless a portion of the sentence is suspended).  

                                                                                                                                  - 8 -                                                                                                                           2475

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 The judge also ordered that Howard be unconditionally discharged from any further                                                                                                                                                                                                                                                                                                                                                                                                         

 obligations in this case.                                                                                    

                                                                                The State appeals.                                         

                                                    Why we reverse the superior court's decision                                                                                                                                                                              

                                                                                 On appeal, Howard                                                                                                          and   the   State   both   agree that the superior                                                                                                                                                                                                                           court's  

reasoning was erroneous and that Howard is not entitled to discharge from his sentence                                                                                                                                                                                                                                                                                                                                                                                            

 for the reasons stated in the judge's order.                                                                                                                                                                                                                      We agree with the parties that the judge's                                                                                                                                                                           

reasoning was flawed.                                                                   

                                                                                Even assuming that the halfway-house probation condition was illegal (a                                                                                                                                                                                                                                                                                                                                                                  

 question we do not reach here), there is no legal basis for the court's decision to give                                                                                                                                                                                                                                                                                                                                                                                                                 

Howard 12 months of jail-time credit based on the                                                                                                                                                                                                                                                               possibility  that Howard might have  

 served that amount of time at a halfway house under the purportedly illegal probation                                                                                                                                                                                                                                                                                                                                                                                     

 condition, when in fact Howard was not placed at a halfway house under that condition.                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 The remedy for an illegal probation condition must be tailored to the prejudice, if any,                                                                                                                                                                                                                                                                                                                                                                                                                  

 suffered by the imposition of the condition.                                                                                                                                                         

                                                                                Here, Howard has shown no prejudice.                                                                                                                                                                                                         As the State points out, although                                                                                                                  

the purportedly illegal probation condition was imposed as part of Howard's second                                                                                                                                                                                                                                                                                                                                                                                                        

probation   revocation,   it   did   not   remain   in   effect   for   long.     At   the   proceedings   for  

Howard's third probation revocation, the court re-imposed only the terms and conditions                                                                                                                                                                                                                                                                                                                                                                                 

 of Howard's                                                               original  judgment, which did not include the halfway-house condition. The    

halfway-house probation condition was therefore no longer in effect at the time Howard                                                                                                                                                                                                                                                                                                                                                                                               

was purportedly directed to stay at the halfway house in February 2011.                                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                     - 9 -                                                                                                                                                                                                                                         2475

----------------------- Page 10-----------------------

                     Why we conclude that a remand is necessary to determine if there is any                                                                                      

                    merit to Howard's claims for jail-time credit                                                

                                Although Howard                             agrees that thesuperiorcourt'sreasoningwaserroneous,                                                      

he   nevertheless   contends   that  the   end   result   of   the   court's   decision   -   i.e.,   his  

unconditional discharge in this case - was correct.                                                                                   Howard asserts that once the                                    

Shetters  and  Nygren  credit he is owed is properly credited against his remaining 6-month                                                                                                

sentence,   he   will   have   served   all   his   time   and   will   be   entitled   to   an   unconditional  

discharge.     Howard  urges   this   Court   to   uphold   the   superior   court's   ruling   on   this  

alternative basis.   

                                We   agree with Howard that if he was placed at the halfway house in                                                                                                     

February 2011 under the authority of the Parole Board, he would be entitled to day-for-                                                                                                    

day credit plus good-time credit for the 132 days he spent there under our decision in                                                                                                                    


State v. Shetters                     .                                                                                                                                                               

                                             And if Howard had violated the terms of his parole and his parole had  


been revoked in this case, the Parole Board presumably would have granted him this  


credit against the 8 months of time that he otherwise owed the Board.  


                                But  Howard  successfully  completed  his  parole  without  any  parole  


revocations. There was therefore apparently no need to grant Howard whatever Shetters  


credit he may have otherwise accrued because there were no revocations against which  


to apply that credit.  Moreover, because Howard's parole was never revoked and he no  


longer  owes  the  Parole  Board  any  time,  the  question  of  whether  he  should  have  


nevertheless received Shetters  credit against the time he previously owed the Parole  


Board is now moot.  


                                In the alternative, Howard argues that he is entitled to day-for-day Nygren  


credit under AS 12.55.025(c) for the time he spent at the halfway house as a court- 


ordered condition of his probation. But as Judge Ray recognized, the current record does  

        10      State v. Shetters, 246 P.3d 332, 337 (Alaska App. 2010).  

                                                                                                - 10 -                                                                                           2475

----------------------- Page 11-----------------------

not establish whether Howard was ordered into the halfway house as a condition of                                                                                                                                             

probation, as a condition of his parole, or both, and the judge made no finding on this                                                                                                                                    

issue. It is therefore premature for us to decide, based on the speculative possibility that                                                                                                                               

Howard was ordered into the halfway house as a condition of his probation, whether he                                                                                                                                         

would be entitled to jail-time under AS 12.55.025(c) in that situation.                                                                                        

                                   Howard also argues that he is entitled to                                                               Nygren  credit under AS 12.55.027                              

for the time he spent in residential treatment because he was ordered to participate in that                                                                                                                               


treatment as a condition of his probation.                                                                                                                                                                       

                                                                                                                   But again, as we just explained, the current  


record does not reveal whether, or under what legalauthority,Howard'sprobation/parole  


officer ordered him to participate in treatment. Moreover, to obtain credit for time spent  


at a treatment facility under AS 12.55.027, a defendant must show that he is entitled to  


credit under that statute, which requires the defendant to show that he was placed at the  


facility under a court order (typically a bail order or a probation order) and that the  




conditions of confinement at the facility qualified for jail-time credit. 


                                   Because the record does not show under what authority Howard was sent  


to the halfway house and the residential treatment facility, or whether his confinement  


at those facilities met the requirements for Nygren  credit under AS 12.55.025(c) and  


AS 12.55.027, we remand this case to the superior court for further proceedings on these  


questions.   On remand, Howard may renew whatever claims for jail-time credit he  


believes he may have.  

         11       See AS 12.55.027.  

         12       In 2014, the legislature amended AS 12.55.027(c) to broaden the types of programs   

that qualify for Nygren credit.  See ch. 83,  23, SLA 2014.  

                                                                                                          - 11 -                                                                                                      2475

----------------------- Page 12-----------------------

                                        Additional guidance on motions for                                                                                                                                            Shetters  credit  

                                                                 We   take this opportunity                                                                                                      to provide some additional guidance to                                                                                                                                                                   trial   

 courts that might face joint                                                                                                      Shetters/Nygren  motions like the one filed in this case.                                                                                                                                                                                        

                                                                 As we noted above, when a defendant files a motion for                                                                                                                                                                                                                                    Nygren   credit  

 under AS 12.55.025(c) or AS 12.55.027, the defendant must show that he is entitled to                                                                                                                                                                                                                                                                                                                                 

jail-time credit under those statutes.                                                                                                                                       If the court finds that the statutory conditions have                                                                                                                                                                        

 been met, the defendant is entitled to the requested credit. The court then issues an order                                                                                                                                                                                                                                                                                                           

 granting the credit and, when the Department of Corrections receives the court's order,                                                                                                                                                                                                                                                                                                            

 it will adjust the defendant's time accounting accordingly.                                                                                                                                                                

                                                                 The process for obtaining                                                                                                      Shetters  credit is different.                                                                                                       If a defendant has                                                        

 been placed at a halfway house under the authority of the Parole Board, the Department                                                                                                                                                                                                                                                                                 

 of Corrections will, in most cases, automatically grant the defendant the credit accrued                                                                                                                                                                                                                                                                                                 

 through that placement if and when the defendant's parole is revoked. The only time the                                                                                                                                                                                                                                                                                                                          

  superior court becomes involved in this process is if the defendant disagrees with the                                                                                                                                                                                                                                                                                                                         

 Department of Corrections' calculation of                                                                                                                                                                        Shetters   credit.    In that circumstance, the                                                                                                                                               

 defendant may seek judicial review of the Department's time accounting in the superior                                                                                                                                                                                                                                                                                                  


                                                                 Like other requests to correct a defendant's time accounting, a request for                                                                                                                                                                                                                                                                      

 Shetters  credit is most appropriately made as an application for post-conviction relief                                                                                                                                                                                                                                                                                                             

 rather than as a motion in the underlying criminal case.                                                                                                                                                                                                                   13  The post-conviction process  


 helps to ensure that the Department of Corrections will be given notice of the case and  


 that the State will be represented by an attorney who normally represents the Department  


 of Corrections (typically, an assistant attorney general).  Such attorneys will generally  

                  13             See  Alaska R. Crim. P. 35.1(a)(5) (post-conviction relief proceedings cover challenges                                                                                                                                                                                                                                                          

 to the lawfulness of a defendant's custodial restraint).  

                                                                                                                                                                                                   - 12 -                                                                                                                                                                                           2475

----------------------- Page 13-----------------------

be in a better position to respond to the defendant's time accounting arguments than the                                                                                                

assistant district attorney assigned to the defendant's criminal case.                                                                    

                             That said, in                Shetters, the defendant sought good-time credit for his time                                                               

at a halfway house through a motion in the underlying criminal case, not through an                                                                                                      



application for post-conviction relief.                                               And on appeal, we declined to hold that this was  


error as a matter of law, largely because we recognized that the post-conviction relief  


process  can  be  ill-suited  to  the  type  of  expeditious  litigation  that  time  accounting  



questions may require. 


                             As a general matter, however, we encourage trial courts to review motions  


for Shetters credit, such as the one filed in Howard's case, to determine (1) whether it is  


actually a motion for Shetters credit, rather than a mislabeled request for Nygren credit  


under AS 12.55.025(c) or AS 12.55.027; and (2) whether it makes sense, given the  


circumstances of the case, to convert the motion into an application for post-conviction  


relief under Criminal Rule 35.1 and to litigate the claim in that manner (on an expedited  


basis, as appropriate).  




                             The judgment of the superior court is VACATED.  We remand this case  


to the superior court for further proceedings on Howard's still unresolved claims for jail- 


time credit.  We do not retain jurisdiction of this case.  

        14     Shetters, 246 P.3d at 341-42.  

        15     Id.   (concluding  that  an  application  for  post-conviction  relief   is  generally   the  

appropriate avenue to seek relief from Department of Corrections' time accounting errors but                   

declining to rule that this is the only avenue of relief for such errors).  

                                                                                         - 13 -                                                                                    2475

----------------------- Page 14-----------------------

Judge MANNHEIMER, with whom Judge ANDREWS joins, concurring.   

                         The present appeal is one of a recent series of appeals and petitions where                                                    

 a judge has issued a ruling based on a factual or legal theory that the parties did not raise,                                                          


 and that they did not litigate.                                                                                                                      

                                                           We wish to caution judges against this practice.  


                         Every judge has assuredly had the experience of taking an issue under  


 advisement and then perceiving that there is some facet of the case - an apparently  


 significant or even dispositive aspect of the case - that the parties have not addressed.  


                         As a society, we hope that judges will have the knowledge and the critical  


 faculties to be able to analyze an issue beyond the specific arguments that the attorneys  


have presented to the court.   And because a judge's role is to approach a case as a  


 dispassionate arbiter, and not as the advocate of any party, there are indeed times when  


 a judge will perceive some important aspect of the facts, or of the applicable law, that has  


 seemingly escaped the attention of the attorneys.  


                         But there are also times when the judge's "insight" is not an insight at all  


- times when the attorneys had good reason for not addressing the judge's concern,  


 either  because  they  knew  that  it  was  irrelevant  (given  the  facts),  or  because  they  


perceived that it was groundless (given the facts and the applicable law), or because they  


had a valid strategic reason for not litigating the issue that way.  

       1     In addition to the present case, see State v. Wasky, File No. A-11896, where the judge  


granted a defense suppression motion based on a new, unlitigated theory - raised by the  


judge  sua sponte - as to why the police interview with the defendant was improper; and  


State  v.  Nicolai,  File  No.  A-11526,  where  the  judge  raised,  sua  sponte,  an  erroneous  


 argument for the admissibilityof hearsayunder Evidence Rule 803(23), and then encouraged  


the defense attorney to formally seek admission of the hearsay under this erroneous theory.  


When the prosecutor in Nicolai  objected to the hearsay and pointed out that the declarant  


would be available to testify in person if the hearing were delayed for a week or two, the  


judge replied that his calendar was "stuffed", and that he "[didn't] really have time ... for any  

 [further] proceeding in [the] case."  

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                                                                    In these situations, it is usually a mistake for the court to issue a ruling that                                                                                                                                                                                                                                                                               

both raises the issue and decides it  sua sponte                                                                                                                                                                                           .  This kind of judicial decision-making,   

 done   without   the   benefit   of   adversarial   briefing   and   argument,   provides   "fertile  

 conditions for the creation of judicial error."                                                                                                                                                                                         State v. Angaiak                                                                            , 847 P.2d 1068, 1073                                                                  

 (Alaska App. 1993).                                                                                       

                                                                    The best way for a judge to distinguish between a true insight and an                                                                                                                                                                                                                                                                                                

illusory insight is to apprise the attorneys of the possible new approach to the issue, and                                                                                                                                                                                                                                                                                                                                          

then let the attorneys respond to the judge's proposed analysis.                                                                                                                                                                                                                                                                  

                                                                    It is true that our law allows a party to seek reconsideration of this type of                                                                                                                                                                                                                                                                                          

sua sponte                                             ruling.   But as I noted in my concurring opinion in                                                                                                                                                                                                                 State v. Waterman                                                                                :    


                                                                                                               Once   a   judge   has   publicly   announced   a   decision  

                                                                    (especially in writing), it is often psychologically difficult for                                                                                                                                                                                                                               

                                                                    the    judge    to    admit    that    he    or    she   might    have    acted  

                                                                    precipitously and might have reached the wrong conclusion.                                                                                                                                                                                                                                                        

                                                                    One would hope that a judge would always have the candor                                                                                                                                                                                                                    

                                                                    (at times, the courage) to concede that an earlier decision was                                                                                                                                                                                                                             

                                                                    wrong.     But   as   a   practical   matter,   a   lawyer   asking   for  

                                                                    reconsideration of a publicly announced decision faces an                                                                                                                                                                                                                                         

                                                                    uphill battle.                                                   For this reason, a lawyer's right to seek rehear-                                                                                                                                                         

                                                                    ing   or   reconsideration   of   an   announced   decision  is  not  a  

                                                                    ready substitute for the right to litigate the issue                                                                                                                                                                                                     before  the  

                                                                    court publicly announces its decision.                                                                                                           

  196 P.3d 1115, 1125 (Alaska App. 2008).                                                                                                                                           

                                                                    Leaving all of this aside, there is an additional reason why judges should   

 seek the input of the parties before issuing a decision based on a point that was not raised                                                                                                                                                                                                                                                                                                                            

 or litigated.                                               

                                                                    One of the basic principles underlying our legal system is the guarantee of                                                                                                                                                                                                                                                                                             

procedural fairness.                                                                                  Human beings are fallible, so we can not guarantee that the factual                                                                                                                                                                                                                                           

                                                                                                                                                                                                             - 1155 -                                                                                                                                                                                                    2475

----------------------- Page 16-----------------------

premises of every judicial decision are ultimately accurate, or that the legal reasoning                                                                                                                                                                                                                                                                                                                                           

behind every judicial decision is ultimately sound.                                                                                                                                                                                                                                                                But to achieve these goals to the                                                                                                                                                        

 greatest extent possible, our legal system focuses on trying to guarantee that the                                                                                                                                                                                                                                                                                                                                                                                              process  

 of reaching judicial decisions remains fair and open.                                                                                                                                                                                                                                                                    

                                                                                Generally   speaking,  this   means   that   courts   should   not   make   binding  

 decisions until everyone affected by that decision has received notice of what is at stake,                                                                                                                                                                                                                                                                                                                                                                                                  

has received notice of the factual and legal arguments raised by the opposing parties, and                                                                                                                                                                                                                                                                                                                                                                                                                 

has been given a fair chance to argue their side of the controversy to the court.                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                               In large measure, our judicial system is able to function because most                                                                                                                                                                                                                                                                                                                                            

people,   whether   they   win   or   lose   in   court,  come   away   from   the   judicial   process  

knowing   that   the   court   has   treated   them   with   respect,   that   the   court   has   carefully  

 considered their claims, and that the court has tried, to the best of its ability, to reach its                                                                                                                                                                                                                                                                                                                                                                                                                  

 decision by faithfully applying the law to the facts of the case.                                                                                                                                                                                                                                                                                                                 

                                                                                These values are potentially undermined when, after the parties have made                                                                                                                                                                                                                                                                                                                                       

their presentations to the                                                                                                                                 court, a judge issues a decision based on factual or legal                                                                                                                                                                                                                                                                           

 considerations that are different from those the parties raised.                                                                                                                                                                                                                                                                                                         The judge's independent                                                      

 analysis of the issue may in fact be correct.  But our legal system is damaged if one or                                                                                                                                                                                                                                                               

more of the parties come away thinking that their arguments were ignored, or that they                                                                                                                                                                                                                                                                                                                                                                                                                

were denied a fair opportunity to respond to the judge's analysis.                                                                                                                                                                                                                                                                                                                                  

                                                                               For thesereasons,weurgejudgesto notify the parties when they tentatively                                                                                                                                                                                                                                                                                                           

 conclude   that   an   issue   should   be   decided   on   a   factual   or   legal   basis   that   was   not  

previously raised or litigated.                                                                                                                                                   The judge should inform the parties of the factual and                                                                                                                                                                                                                                                                 

 legal details of the judge's proposed analysis, and the judge should then allow the parties                                                                                                                                                                                                                                                                                                                                                                                            

to brief or argue the issue before making a final ruling.                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                               - 1166 -                                                                                                                                                                                                                                      2475

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