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Michael Jerome Mosquito v. State of Alaska (1/7/2022) ap-2717

Michael Jerome Mosquito v. State of Alaska (1/7/2022) ap-2717

                                                                                    NOTICE
  

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                 formal errors to the attention of the Clerk of the Appellate Courts:  



                                                      303 K Street, Anchorage, Alaska  99501
  

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                          IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MICHAEL JEROME MOSQUITO,  

                                                                                                            Court of Appeals No. A-13179  

                                                         Appellant,                                     Trial Court No. 3AN-17-06446 CI  



                                           v.  

                                                                                                                             O P I N I O N  

STATE OF ALASKA,  



                                                         Appellee.                                            No. 2717 - January  7, 2022  



                            Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                                         

                            Anchorage, Erin B. Marston, Judge.  



                            Appearances:                    Rachel  Cella,  Assistant  Public  Defender,  and  

                                                                                           

                             Samantha                Cherot,            Public   Defender,                       Anchorage,                 for       the  

                            Appellant.   Matthias R. Cicotte, Assistant Attorney General,  

                                                                                                                                           

                            Department  of  Law,  Anchorage,  and  Kevin  G.  Clarkson,  

                                                              

                            Attorney General, Juneau, for the Appellee.  



                            Before:              Allard,  Chief  Judge,  and  Wollenberg  and  Terrell,  

                                                                               

                                                                 

                            Judges.  



                            Judge TERRELL.  



                                                                                                                              1  

                            In 2016, the legislature enacted AS 33.16.270.                                                       Under the original version               



of the statute, a parolee's period of supervision was reduced by 30 days for each 30-day                                                                                  



       1      SLA 2016, ch. 36, § 151.  


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

                                                                                                                              2  

period during which the parolee complied with the conditions of parole.                                                           The legislature   



provided that AS 33.16.270 "appl[ies] to parole granted before, on, or after [January 1,                                                                 



              3  

2017]."                                                                                                                                                  

                  This language makes clear that a parolee is entitled to a 30-day reduction to  



                                                                                                                                                    

their period of supervision (an "earned compliance credit") if they complied with their  



                                                                                                                                                   

conditions  of  parole  for  a  30-day  period  after  January  1,  2017,  even  if  they  were  



                                                                                  

originally placed on parole before that date.  



                                                                                                                                                         

                        But Mosquito argues that parolees must also receive credit for periods of  



                                                                                                                                                      

parole compliance that occurred prior to January 1, 2017. In other words, he argues that  



                                                                                                                                                   

AS 33.16.270 applies retroactively not only, as the statute explicitly provides, to terms  



                                                                                                                                                     

of  parole  granted  before  the  effective  date,  but  also  to periods  of  compliance  that  



                                                                                  

occurred prior to the statute's effective date.  



                                                                                                                                                         

                        The question presented by this appeal is whether AS 33.16.270 applies to  



                                                                                                                                                

periods of compliance on parole supervision prior to its effective date, or only to periods  



                                                                                                                                              

of compliance on or after the effective date.  For the reasons explained in this opinion,  



                                                                                                                                          

we conclude that a parolee is only entitled to earned-compliance credits for periods of  



                                                                                                                          

compliance on or after AS 33.16.270's effective date of January 1, 2017.  



                                                                                                                

             Why  we  decide  this  case  under  the  public-interest  exception  to  the  

                               

            mootness doctrine  



                                                                                                                                                 

                        The parties agree that this appeal is moot because Mosquito has now served  



                                                                                                                                                    

all of the incarceration and parole time associated with the criminal conviction at issue  



      2     See former AS 33.16.270(1) (2018). The statute has since been amended to lower the   



award  to  10  days  of   reduction  of   the  parole  supervision  period  for  every   30  days   of  

compliance with parole conditions.  See FSSLA 2019, ch. 4, § 116.  



      3     SLA 2016, ch. 36, §§ 185(p)(10) & 190.  



                                                                          - 2 -                                                                     2717
  


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

in this case.  But Mosquito asks us to decide his appeal on its merits under the public-                                                                                                       



interest exception to the mootness doctrine.                                                               



                                Courts look at three main factors in deciding whether to apply the public-                                                                                     



interest exception to the mootness doctrine: "(1) whether the disputed issues are capable                                                                                                     



of repetition, (2) whether the mootness doctrine, if applied, may cause review of the                                                                                                                    



issues   to   be   repeatedly   circumvented,   and   (3)   whether   the   issues   presented   are   so  



                                                                                                                                                                                             4  

important to the public interest as to justify overriding the mootness doctrine."                                                                                                                



                                                                                                                                                                                                        

                                With respect to the first two factors, this issue has already come before this  



                                                                                                                                                                                            

Court in multiple cases, and each time we have found the issue to be moot and declined  



                                                                                                                                                                                                        

to reach the merits. We therefore think it clear that the issue is capable of repetition, and  



                                                                                                                                                                                                           

that routine application of the mootness doctrine has caused review of the issue to be  



                                                             5  

                                                                  

                           

repeatedly circumvented. 



                                                                                                                                                                  

                                We also conclude that the retroactivity of the parole earned-compliance  



                                                                                                                                                                                              

credits provision is important to the public interest. There are a large number of persons  



                                                                                                                                                                                                      

on parole, and if they are awarded credit against their parole supervision period for time  



                                                                                                                                                                                                      

spent in compliance with parole conditions prior to AS 33.16.270's effective date, then  



                                                                                                                                                               

many of them would receive sufficient credits to terminate parole supervision.  



                                                                                                                                                                                          

                                Accordingly,weconcludethatthepublic-interestexceptionto themootness  



                                                                                                                                                                           

doctrine is satisfied and that review on the merits is appropriate in this case.  



        4       Fairbanks Fire Fighters Ass'n, Local 1324 v. Fairbanks, 48 P.3d 1165, 1168 (Alaska  



2002) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska  

 1995)).  



        5       See, e.g.           , Morris v. State , Court of Appeals File No. A-13011 (Order dated Jan. 14,   



2020).  



                                                                                                  -  3 -                                                                                              2717
  


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

              Why we conclude that the parole earned-compliance credits statute only                                                                     

              applies to time spent on parole after the statute's effective date                                                    



                           This   case   presents   a   question   of   statutory   interpretation.     "When   we  



interpret a statute, our task is 'to ascertain the legislature's intent and then to construe the                                                                          



                                                                                 6  

statute so as to implement that intent.'"                                                                                         

                                                                                      We interpret statutes "according to reason,  



practicality, and common sense, considering the meaning of the statute's language, its  



                                                                           7  

                                                                                                                                                       

legislative history, and its purpose."                                          We use "a sliding scale approach to statutory  



                                                                                                                                                                         

interpretation, in which 'the plainer the statutory language is, the more convincing the  



                                                                                                                                           8  

                                                                                                                                                  

evidence   of   contrary   legislative   purpose   or   intent   must   be.'"                                                                       Additionally,  



                                                                                                                                                                                 

AS 01.10.090 states that "[n]o statute is retrospective unless expressly declared therein."  



                                                                                                                                                                 

                           AlaskaStatute33.16.270,asoriginallyenacted,allowedaparoleeto receive  



                                                                                                                                                    

a 30-day reduction in their period of parole supervision for each 30-day period during  



                                                                                                                                                                           

which they complied with their conditions of parole.  The statute was enacted as part of  



                                                                                                                                                                       

Senate Bill 91, a large-scale revision of Alaska's criminal statutes.  Senate Bill 91 also  



                                                                                                                                                   

enacted  a  virtually  identical  earned-compliance  credits  statute  for  probationers,  



                                   9  

         

AS 33.05.020(h). 



       6     R.C. v. State, 435 P.3d 1022, 1026-27 (Alaska App. 2018) (quoting Williams v. State,  



2015 WL 4599554, at *3 (Alaska App. July 29, 2015) (unpublished)).  



       7      State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (quoting                                                           State, Div. of Workers'  



Comp.  v.  Titan  Enters.,  LLC,  338  P.3d  316,  320  (Alaska  2014)).    We  independently  

determine whether a statute is retroactive.                                          Eastwind, Inc. v. State, 951 P.2d 844, 847 n.8  

(Alaska 1997).  



       8     Adamson v. Anchorage , 333 P.3d 5, 11 (Alaska 2014) (quoting McDonnell v. State  

                                      

Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska 2013)).  



       9      SLA  2016,  ch.  36,  §  114.    Like  the  parole  earned-compliance  credits  statute,  



AS 33.05.020(h) was amended in 2019 to reduce the award of credits down to 10 days for  

                                                                                                                           

every 30 days spent in compliance with probation conditions.  FSSLA 2019, ch. 4, § 100.  



                                                                                   - 4 -                                                                              2717
  


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

                             These earned-compliance credits statutes result in a substantial reduction                                     



of   the   parole   or   probation   supervision   period   for   those   who   comply   with   their  



supervision conditions.                              They have their origin in the work of the Alaska Criminal                                                       



Justice Commission.                             The Commission issued a report in 2015, recommending that                                                                       



Alaska enact statutes "establishing an earned compliance policy that grants probationers                                                                       



and parolees one month credit towards their probation and/or parole termfor each month                                                                                      



                                                                                                                            10  

they are in compliance with the conditions of supervision."                                                                                                                     

                                                                                                                                 The report also noted that:  



                                                                                                                                                        

                            Historically,probationand parolesupervision was focused on  

                                                                                                                                          

                             surveillance and sanctioning in order to catch or interrupt  

                                                                                                                                                 

                            negative               behavior.                     However,                  research               shows             that  

                                                                                                                                           

                             encouraging positive behavior with incentives and rewards  

                                                                                                                                       

                             can have an even greater effect on motivating and sustaining  

                                                 

                            behavior change.  



                                                                                                                                    

                            While incarcerated offenders in Alaska have the opportunity  

                                                                                                                                                     

                            to        receive             good            time           and          furlough               incentives                 in  

                                                                                                                                       

                             acknowledgment                           of        positive              behavior               and          program  

                                                                                                                                                     

                            participation,  the  state  provides  no  similar  incentives  for  

                                                                                                                                         

                             offenders under supervision. Alaska has no earned discharge  

                                                                                                                                    

                            policy to allow supervisees to earn time off their supervision  



                                                                                        [11]  

                                                                    

                             sentence for good behavior. 



                                                                                                                                                                                   

                             Turning to the provision at issue in this appeal, the applicability clause for  



                                                                                                                                                                                     

AS 33.16.270 provides that the parole earned-compliance credits program "appl[ies] to  



                                                                                                                  12  

                                                                                                                                                                                 

parole granted before, on, or after [January 1, 2017]."                                                                This language makes clear that  



                                                                                                                                                                     

a parolee is entitled to a 30-day reduction in their period of supervision if they complied  



                                                                                                                                                                                

with their conditions of parole for a 30-day period after January 1, 2017, even if they  



       10     Alaska Criminal Justice Commission, Justice Reinvestment Report , at 24 (Dec. 2015).                                                                           



       11     Id. at 12.  



       12      SLA 2016, ch. 36, §§ 185(p)(10) & 190.  



                                                                                       -  5 -                                                                                  2717
  


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

were originally placed on parole prior to that date.                                                                                                                                                                              But it is ambiguous as to whether a                                                                                                                        



parolee receives credit for periods of compliance prior to January 1, 2017.                                                                                                                                                                                                                                       



                                                            On appeal, however, Mosquito argues that this language is not ambiguous.                                                                                                                                                                                                                                                                   



He   argues   that   the   plain  language   of   "before,   on,   or   after"   makes   it   clear   that   the  



legislature intended the statute to apply retroactively, and that the State bears a "heavy                                                                                                                                                                                                                                                                   



burden" to show that the statute is only prospective.                                                                                                                            



                                                            The problem with this argument is that a statute can be retroactive in one                                                                                                                                                                                                                                           



 sense but not in another. Here, the legislature specified that the parole statute "appl[ies]                                                                                                                                                                                                                                                         



to parole granted before, on, or after" the effective date.                                                                                                                                                                                                       This makes it clear that the                                                                                     



legislature intended the statute to apply retroactively in the sense that it applies to people                                                                                                                                                                                                                                                                      



who were                                     granted parole  before the effective date.                                                                                                                                                 But the question presented in this                                                                                                       



appeal is different:                                                                 whether the legislature intended the statute to apply retroactively in                                                                                                                                                                                                                              



the sense that it applies to                                                                                      periods of compliance                                                                                that occurred before the effective date.                                                                                                                                        



As to this question, the plain language of the statute is silent.                                                                                                                                                                                                            We must therefore turn to                                                                                   



the legislative history and the purpose of the statute.                                                                                                                                                  



                                                            In early drafts of Senate Bill 91, both the probation and parole earned-                                                                                                                                                                                                                           



compliance credits statutes applied to individuals placed on probation or parole "on or                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                         13  

after" the effective date of the statute.                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                    But this language meant that existing parolees  



                                                                                                                                                                                                                                                                                                                                                                               

and probationers would not be covered by the earned-compliance credits program. The  



                                                                                                                                                                                                                                                                                                                                                              

drafters reworked the applicability clauses to avoid this result.  Specifically, Senator  



                                                                                                                                                                                                                                                                                                                                                                

Anna MacKinnon introduced an amended applicability clause for the probation earned- 



                13            Sponsor Substitute for Senate Bill (S.S.S.B.) 91, § 139(h)(8), (j)(20), 29th Leg., 2d                                                                                                                                                                                                                                                                    



 Sess.  (Feb.  3,  2016);  Committee  Substitute  for  Sponsor  Substitute  for  Senate  Bill  

(C.S.S.S.S.B.) 91, § 143(h)(8), (j)(12), 29th Leg., 2d Sess. (S. St. Aff. Comm., Mar. 9, 2016);  

                                                                                                                                                                                                                                                                                                                                                           

C.S.S.S.S.B.  91, § 163(j)(6), (l)(26), 29th Leg., 2d Sess. (S. Judiciary Comm., Mar. 25,  

2016).  



                                                                                                                                                                                       -  6 -                                                                                                                                                                                  2717
  


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

compliance credits provision, AS 33.05.020(h), which said that it applies "to sentences                                                               



imposed before, on, or after the effective date . . . for time served on probation on or after                                                                  



                                                                    14  

the effective date" of the provision.                                                                                                                     

                                                                         An aide to Senate Bill 91's chief sponsor, Senator  



                                                                                                                                                          

John Coghill, explained that Senator MacKinnon's amendment meant that both earned- 



                                                                                                                                                      

compliance credits provisions would "apply to those individuals who were on probation  



                                                                                       15  

                                                                                                                                                                  

or parole at the time of passage of the bill."                                               The senate subsequently approved the  



                                                                                                                                                           

passageofthis amendment with regard to theprobation earned-compliancecreditstatute.  



                                                                                                                                                        

                          As  Mosquito  notes,  however,  the  legislature  never  amended  Senator  



                                                                                                                                                          

MacKinnon's applicability clause for probation earned-compliance credits to include  



                                                                                                                                                            

parole earned-compliance credits, and never adopted an identical applicability clause  



                                                                                                                                                                 

specific  to  parole  earned-compliance  credits.                                               Instead,  the  legislature  changed  the  



                                                                                                                                                          

applicability clause for the parole earned-compliance credits program so that it applied  



                                                                                                                                                            

to individuals placed on parole "before, on, or after" the effective date. Mosquito argues  



                                                                                                                                                                  

that this history demonstrates an intent to break with the original plan that the parole and  



                                                                                                                                                           

probation earned-compliance credits provisions have the same temporal reach.  



                                                                                                                                                        

                          As  we  noted  earlier,  the  applicability  clause  for  the  parole  earned- 



                                                                                                                                                                    

compliance credits program is facially ambiguous as to whether the statute applies to  



                                                                                                                                                                      16  

                                                                                                                                                                          

time spent in compliance with parole conditions prior to the statute's effective date. 



       14    Minutes of the Senate Fin. Comm., Senate Bill 91, at 2:21:21 p.m. (Apr. 2, 2016).  



       15    Id. , Testimony of Jordan Schilling, Staff to Sen. John Coghill (emphasis added).  



       16    Notably, the applicability clause for the parole earned-compliance credits program   



included  two  other  statutes  that  clearly   regulated  conduct  occurring  after  the  statutes'  

effective date - (1) AS 33.16.180, regarding duties of DOC's commissioner with respect                  

to the newly created administrative parole scheme, and (2) AS 33.16.215, involving a new  

system of graduated sanctions for technical parole violations.                                                    This further suggests that the  

phrase "parole granted before, on, or after" the statutes' effective date was intended to  

                                                                                                                                               (continued...)  



                                                                               -  7 -                                                                          2717
  


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

And the provision governing the identical probation program shows that the legislature                                                                                                                                                                                                                                                



understood how to write an applicability clause that clearly applied to persons placed on                                                                                                                                                                                                                                                                               



probation before the effective date, but only for periods of compliance that occurred after                                                                                                                                                                                                                                                                    



the   effective   date.     Indeed,   the   existence   of   the   unambiguous   applicability   clause  



governing the probation program is the strongest evidence that the legislature must have                                                                                                                                                                                                                                                                      



intended   something   different   when   it   enacted   the   ambiguous   applicability   clause  



governing the parole program.                                                              



                                                         But   nothing   else   in   the   legislative   history   supports   that   conclusion.   



Mosquito  has   cited   to   no   evidence   that   the   drafters   discussed,   let   alone   approved,  



granting earned-compliance credits for past conduct, and our own independent review                                                                                                                                                                                                                                                                  



of the legislative history discloses no such discussion.                                                                                                                                                                                 Instead, the focus of discussion                                                            



was on whether the incentive program should apply only to individuals granted parole                                                                                                                                                                                                                                                                   



on or after the effective date, or whether it should also apply to individuals granted                                                                                                                                                                                                                                                          



parole before the effective date. Under these circumstances, the ambiguous applicability                                                                                                                                                                                                                                     



clausegoverningtheparoleearned-compliancecredits                                                                                                                                                                                    programappearsmoretheproduct                                                                                  



of inartful drafting than a specific intent to treat the probation and parole programs                                                                                                                                                                                                                                                  



differently.  



                                                          Subsequent   developments   support   this   conclusion.     In  Senate   Bill   55,  



passed only one year after Senate Bill 91, the legislature enacted a provision stating:                                                                                                                                                                                                                                                                                                



"Nothing in the provisions of AS 33.16.270 may be construed as applying to credit for                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                               17  

time served on parole before January 1, 2017."                                                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                            Such "clarifying legislation" is not  



                                                                                                                                                                                                                                                                                                                               

binding on the courts, but it is "a factor that the courts should consider when determining  



               16            (...continued)  



include a person on parole before the statutes' effective date, while applying only to time  

                                                                                                                                                                                                                                                                                                                                                     

 spent on parole after the effective date.  



               17            SLA 2017, ch. 13, § 30.  



                                                                                                                                                                               -  8 -                                                                                                                                                                           2717
  


----------------------- Page 9-----------------------

                                                                                                                                                                                                                                                                                                      18  

the meaning and effect of the pre-existing statute."                                                                                                                                                                                                                                                            Here, the legislature's clarification                                                                                                 



 supports the conclusion that the legislature did not intend for parolees to receive earned-                                                                                                                                                                                                                                                                                                                                                                                    



 compliance credits for time served on parole prior to January 1, 2017.                                                                                                                                                                                                                                                                                                                  



                                                                               Policy concerns also weigh against Mosquito's proffered interpretation.                                                                                                                                                                                                                                                                                                                                                                         



 The earned-compliance credits program was designed to incentivize good behavior.                                                                                                                                                                                                                                                                                                                                                                                                                                              



Because parolees in the past cannot have been expected to change their behavior in                                                                                                                                                                                                                                                                                                                                                                                                                             



response to a program that did not yet exist, the policy                                                                                                                                                                                                                                                                                                   goal of incentivizing good                                                                                                       



behavior would not be served by granting earned-compliance credits for time served on                                                                                                                                                                                                                                                                                                                                                                                                                        



parole prior to January 1, 2017.                                                                                                                       



                                                                               Mosquito   contends   that   the   purpose   of   the   statute   was   to   reduce   the  



 caseloads of parole officers and to save the state money, and he asserts that his proposed                                                                                                                                                                                                                                                                                                                                                                           



interpretation would further those goals.  But we do not pursue the policy goals of the                                                                                                                                                                                                                                                                                                                                                                                                                   



 legislature by whatever means necessary; rather, we attempt to implement those goals                                                                                                                                                                                                                                                                                                                                                                                                       



through the framework designed and adopted by the legislature.                                                                                                                                                                                                                                                                                                                              



                                                                               Here, the legislature designed an earned-compliance credits program to                                                                                                                                                                                                                                                                                                                                                          



incentivize compliance with parole conditions.                                                                                                                                                                                                                                        Mosquito's interpretation would serve                                                                                                                                                                 



the overarching policy goals of that program by reducing caseloads and saving the state                                                                                                                                                                                                                                                                                                                                                                                                          



money, but it would do so through a mechanism of judicial invention rather than the                                                                                                                                                                                                                                                                                                                                                                                       



 forward-looking incentive system envisioned by the legislature.                                                                                                                                                                                                                                                                                                                          



                                                                               Furthermore, it would be difficult to award earned-compliance credits for                                                                                                                                                                                                                                                                                                                                                   



past compliance, because parole officers are unlikely to have kept records designed to                                                                                                                                                                                                                                                                                                                  



implement a programthat                                                                                                                               did not yet exist. Even                                                                                                             if some parole officers kept sufficiently  



 detailed records, it is highly unlikely that                                                                                                                                                                                                               all   of them did, which would mean that a                                                                                                                                                                                                              



parolee's entitlement to earned-compliance credits would turn on the idiosyncracies of                                                                                                                                                                                                                                                                                                                                                                                                                          



                     18                 Collins v. State, 494 P.3d 60, 67 (Alaska App. 2021).  



                                                                                                                                                                                                                                                 -  9 -                                                                                                                                                                                                                                             2717
  


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

their parole officer's record-keeping process, rather than their own good behavior.                                                                                                                                          We  

doubt the legislature intended to enact such an arbitrary program.                                                                                                              19  



                  Conclusion  



                                    For the reasons explained in this opinion, we hold that the parole earned- 

                                                                                                                                                                                                                    



compliance credits program only applies to time spent on parole after AS 33.16.270's  

                                                                                                                                                                                                        



effective date of January 1, 2017.  The superior court's grant of summary judgment to  



the State correctly rejected Mosquito's request for retroactive application of the parole  

                                                                                                                                                                                                                       



earned-compliance credits statute.  Accordingly, the decision of the superior court is  

                                                                                                                                                                                                                                   



AFFIRMED.  



         19       Mosquito argues that the rule of lenity,                                                                i.e., the rule that ambiguous penal statutes  



should be construed against the government, applies here.  But "this rule . . . comes into play  

only when, after employing normal methods of statutory construction, the legislature's intent                                                 

cannot be ascertained or remains ambiguous."  DeNardo v. State, 819 P.2d 903, 907 (Alaska   

App. 1991). Because                                   AS 33.16.270's applicabilityis not ambiguous after standard principles   

of statutory construction are applied, the rule of lenity does not apply.   



                                                                                                            -  10 -                                                                                                         2717
  

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