Opinion
Court of Appeals No. A-10997 Trial Court No. 3AN-10-11697 CI No. 5970
09-04-2013
SIDNEY R. HERTZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Contract Public Defender, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Jane B. Martinez, Contract Public Defender, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Allard, Judge, Coats, Senior Judge, and Andrews, Senior Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
In October 2010, Sidney R. Hertz filed an application for post-conviction relief challenging the Parole Board's authority to impose special parole conditions in his case because the current parole statutes were enacted after Hertz was convicted. The superior court denied Hertz's application based on this Court's prior decisions, Braham v. Beirne and James v. State, which held that the Parole Board had the statutory authority to impose special parole conditions on defendants in this circumstance.
675 P.2d 1297 (Alaska App. 1984).
244 P.3d 542 (Alaska App. 2011).
On appeal, Hertz argues that our prior decisions were wrongly decided and should be overruled. We conclude that Hertz has failed to meet his heavy burden of showing compelling reasons for reconsidering our prior precedent. We therefore affirm the superior court's judgment.
Factual background and prior proceedings
In 1984, Hertz was convicted of second-degree murder and was sentenced to 40 years to serve with a 20-year restriction on discretionary parole. Because Hertz's sentence did not include any suspended time, he was not sentenced to a probationary term and no probation conditions were imposed.
In October 2010, Hertz was released on mandatory parole. The Parole Board placed Hertz on parole supervision with various special parole conditions, including a requirement that he obtain a substance abuse evaluation and follow any treatment recommendations.
Hertz filed an application for post-conviction relief. Hertz argued that the parole conditions imposed in his case violated the prohibition against ex post facto laws because the parole statute authorizing the conditions, AS 33.16.150, was not enacted until after he was convicted and sentenced. Hertz also argued that his parole conditions violated double jeopardy because the sentencing court had not imposed probation or probation conditions.
Hertz also filed a civil action against the Department of Corrections probation officers who denied his application for furlough release in 2009, raising constitutional arguments similar to the arguments he raises in this case. The superior court dismissed the action for failure to state a prima facie case based on its ruling in this post-conviction relief case, and the Alaska Supreme Court affirmed. See Hertz v. Macomber, 297 P.3d 150 (Alaska 2013).
Superior Court Judge Mark Rindner denied Hertz's application for relief. Judge Rindner concluded that Hertz's case was directly controlled by this Court's prior decisions in Braham, Hill v. State, and James. This appeal followed.
22 P.3d 24 (Alaska App. 2001).
Should this Court overturn its precedent recognizing the Parole Board's authority to impose special parole conditions on defendants who were convicted prior to 1985?
Under the doctrine of stare decisis, "a party raising a claim controlled by an existing decision bears a heavy threshold burden of showing compelling reasons for reconsidering the prior ruling." An appellate court will overrule its prior decision only when it is "clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent."
Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004).
Id. (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003)).
Hertz fails to meet this threshold burden here. His arguments on appeal have previously been considered and rejected by this Court in other cases, most recently in Hill and James, and Hertz provides no compelling reason to conclude that the holdings in these cases do not control his case.
Understanding Hertz's arguments on appeal requires some background on the history of the parole statutes. Prior to 1985, the parole system was governed by the 1960 Parole Administrative Act, codified as former AS 33.15. In 1979, in Morton v. Hammond, an evenly split Alaska Supreme Court addressed an apparent inconsistency within the parole statutes regarding when the Parole Board had supervisory authority over prisoners released on mandatory parole and when the Parole Board could impose special conditions on these parolees. Former AS 33.20.040(a) provided that a prisoner released on parole remained under Parole Board custody "until the expiration of the maximum term or terms for which the prisoner was sentenced less 180 days." However, former AS 33.15.190 provided that a prisoner released on parole remained under Parole Board custody "until the expiration of the maximum term or terms to which he was sentenced, less good time allowances provided by law." Morton argued that the latter statute should control and that he was therefore not subject to the Parole Board's authority because he had been released on mandatory parole after serving his maximum term minus his good time allotments, even though he still had more than 180 days left to serve.
See James, 244 P.3d at 545 (detailing history of parole statutes in Alaska).
604 P.2d 1, 3-4 (Alaska 1979).
Former AS 33.20.040(a) (1982 & Supp. 1983-1984).
Former AS 33.15.190 (1982 & Supp. 1983-1984).
Morton, 604 P.2d at 3.
Justice Boochever, writing the lead opinion and joined by Justice Connor, found the two statutes "almost hopelessly in conflict." The lead opinion nevertheless affirmed Morton's parole revocation, holding that the conflict did not directly affect Morton's case because his parole had been revoked for violating Alaska law, not for violating conditions of parole imposed by the Parole Board.
Id.
Id. at 3-4.
Justice Rabinowitz authored a separate concurring opinion, joined by Justice Matthews. The concurrence agreed with the lead opinion's decision to affirm Morton's revocation, but disagreed with its analysis of the two statutes. The concurrence reasoned that AS 33.22.040(a) limited the benefit of "good time allowances provided by law" to a prisoner already paroled to a maximum of 180 days. Therefore prisoners released on mandatory parole remained under the jurisdiction of the Parole Board and subject to any conditions imposed by the Board until 180 days remained on their sentence.
Id. at 4 (Rabinowitz, J., concurring).
Id.
Id.
In 1984, in Braham v. Beirne, this Court adopted the reasoning in the Morton concurrence and directly held that the Parole Board retained custody of parolees released on mandatory parole, and therefore had the authority to impose special parole conditions on them. We explained that we found the concurrence's statutory interpretation "more persuasive" because it reconciled the two statutes in a manner that gave effect to both.
Id.
In 1985, the Alaska legislature repealed AS 33.15 and enacted AS 33.16, the chapter that currently governs the parole system. The new parole statutes expressly allow the Parole Board to impose special conditions on mandatory parolees. The legislature explained that its intent, in part, was to codify the Braham holding.
James, 244 P.3d at 545.
AS 33.16.150(b), (d).
James, 244 P.3d at 545.
Hertz's argument on appeal is essentially that Braham was wrongly decided and that this Court should have adopted the reasoning of the lead opinion in Morton rather than the concurrence. But we have upheld our holding in Braham against similar challenges, most recently in James v. State.
244 P.3d at 546; see also Hill, 22 P.3d at 30.
James, like Hertz, was sentenced prior to 1985 but was released on mandatory parole after the legislative revision of the parole statutes. James argued that the pre-1985 parole statutes did not authorize the Parole Board to impose special conditions on mandatory parolees and that application of the post-1985 statute in his case violated the prohibitions against ex post facto laws and double jeopardy. In rejecting James's arguments, we reaffirmed Braham's holding that the pre-1985 parole statutes authorized the imposition of special conditions of mandatory parole. We held that the Parole Board's authority to impose the conditions in James's case therefore derived from the former statutes, not from an ex post facto application of the new statutes. It followed that James's original sentence, which was imposed under the pre-1985 law, already contained the possibility of future special parole conditions, and that later imposition of those conditions did not violate the prohibition against double jeopardy because it did not "increase" his original sentence.
James, 244 P.3d at 544.
Id. at 545-46.
Id. at 545.
Id. at 545-46.
Id. at 546; see also Reyes v. State, 978 P.2d 635, 639 (Alaska App. 1999).
Hertz tries to distinguish his case from James on the ground that his sentence, unlike the sentence in James, was a flat-time sentence without any probation. Hertz argues that the Parole Board's decision to impose mandatory parole conditions contravenes the sentencing judge's decision to reject probationary conditions in his case. But it is the Parole Board, not the sentencing judge, that has the authority to impose parole conditions. Thus, even if Hertz's parole conditions were functionally similar to probation conditions, as he claims, that does not change the fact that when his sentence was originally imposed, the Parole Board's authority to impose parole conditions in the future already existed. Hertz's arguments that the Parole Board's conditions violate double jeopardy and the prohibition against ex post facto laws are without merit.
See James, 244 P.3d at 546.
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Conclusion
The superior court's judgment is AFFIRMED.