Opinion
Court of Appeals No. A-9753.
July 30, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-03-1627 Cr.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellant/Cross-Appellee. Roy V. Williams, Eagle River, for the Appellee/Cross-Appellant.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
The State of Alaska appeals the superior court's decision to grant Kevin L. Stafford credit towards his 2-year term to serve for the time Stafford was on bail release with a condition that included electronic monitoring. Stafford appeals his sentence on the ground that it is excessive.
Our holding in Matthew v. State controls the issue of whether Stafford's conditions of release amounted to custody under AS 12.55.025(c), and under Matthew, Stafford is not entitled to credit. Therefore, we reverse the superior court's order granting credit for the time Stafford was electronically monitored.
152 P.3d 469 (Alaska App. 2007).
Because we have no jurisdiction to decide Stafford's excessive sentence claim, we refer that issue to the supreme court for discretionary review. Background facts and proceedings
The State charged Stafford with two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor for sexually abusing his fourteen-year-old niece, L.M.S., on August 17, 2003. When Stafford obtained bail release, one of his conditions of release included a requirement of electronic monitoring. Ultimately, Stafford reached a charge bargain with the State. On May 31, 2005, Stafford pled no contest to one count of second-degree sexual abuse of a minor. There was no agreement on sentencing.
AS 11.41.434(a).
AS 11.41.436(a).
Before sentencing, Stafford requested credit against any imposed imprisonment for the time he spent on electronic monitoring. Stafford claimed he was entitled to this credit because the Department of Corrections had statutory authority to release prisoners on electronic monitoring to serve a sentence in home confinement.
Superior Court Judge Eric Smith sentenced Stafford to 6 years with 4 years suspended, a net 2-year term to serve. Judge Smith initially denied Stafford's request for credit for the time he was on electronic monitoring. Judge Smith also pointed out that Nygren v. State held that persons who had been ordered into residential substance abuse treatment could receive Nygren credit. He reasoned that be c a use Stafford w as not in court-ordered treatment, Nygren credit was unavailable. Stafford appealed the trial court's decision to deny him credit for time spent on electronic monitoring.
658 P.2d 141 (Alaska App. 1983).
After Stafford filed his appeal, Judge Smith approved Nygren credit for a defendant whose bail conditions included electronic monitoring. Based on Judge Smith's decision in the other case, Stafford asked Judge Smith to reconsider the ruling in his case.
On June 28, 2006, Judge Smith asked this Court to return jurisdiction to the superior court and we granted the request. The State filed a supplemental brief in the superior court opposing Nygren credit. Judge Smith granted Stafford's motion, ruling that Stafford's bail condition requiring electronic monitoring was equivalent to the DOC electronic monitoring program.
The State appeals Judge Smith's decision to award Stafford Nygren credit. Stafford cross-appeals, arguing that his 2-year term to serve is excessive.
Stafford's bail release on electronic monitoring does not entitle him to credit against his sentence
We review the issue of whether a defendant's conditions of release amount to custody under AS 12.55.025(c) de novo. Under AS 12.55.025(c), a person is to receive "credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed." In Nygren, this Court held that defendants who are released on bail are entitled to credit against their sentence under AS 12.55.025(c) if the defendants' bail conditions subject them "to restrictions approximating those experienced by one who is incarcerated." This Court explained the types of restrictions that characterize places of incarceration:
Matthew, 152 P.3d at 472.
AS 12.55.025(c).
Nygren, 658 P.2d at 146.
[I]ncarcerative facilities share a number of common characteristics: their residents are invariably sent there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to twenty-four hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission.
Id.
We indicated that this list was not exhaustive, but that it was sufficient to serve as a reference for determining whether restrictions approximated those experienced by a person who is incarcerated.
Id.
In Matthew, this Court addressed the same issue raised in Stafford's appeal: Is a defendant who is granted bail release with a condition that requires electronic monitoring entitled to credit, under AS 12.55.025(c), against his sentence of imprisonment for time spent on electronic monitoring? Matthew was permitted to be at his home, at his work site, and to travel between his home and work site. He was ordered not to consume alcohol while on release and to wear an electronic monitoring device. This Court held that Matthew's conditions of release did not subject Matthew to "restrictions approximating those experienced by one who is incarcerated." While Matthew was on electronic monitoring, he was not subjected to "the kind of institutional rules and routines" or the structured, regimented life style that is "the central feature" of incarceration and residential treatment centers.
Matthew, 152 P.3d at 470.
Id.
Id.
Id. at 472 (citing Nygren, 658 P.2d at 146).
Id.
We re-affirmed Matthew in Ackerman v. State. Ackerman's conditions of release paralleled Matthew's. Ackerman was required to wear an electronic monitoring device that confirmed his location and tested whether he consumed alcohol. Ackerman was restricted to his home, his work site, and transit between the two locations.
179 P.3d 951 (Alaska App. 2008).
Id. at 952.
Id.
Id.
Stafford's conditions of release do not materially differ from Matthew's or Ackerman's. Stafford was restricted to his home, his work site, and transit in between, and he was ordered not to consume alcohol. The electronic monitoring service reported on Stafford's compliance with these requirements.
In some aspects, Stafford's contract with the electronic monitoring company was less restrictive than Matthew and Ackerman. Not only w as Stafford permitted to travel to his work site, but he could also travel to medical, dental, and legal appointments. Initially, the monitoring program allowed Stafford to be away from the home-based electronic monitoring from 8:30 a.m. until 6:30 p.m. for work, but the monitoring company extended the time to 9:30 p.m. The monitoring personnel also allowed Stafford to be away from home for "personal errands." Under Matthew, Stafford's bail release conditions are not so restrictive as to be the equivalent of incarceration.
Stafford urges us to overturn our decision in Matthew. But a litigant who asks an appellate court to overrule a decision must demonstrate convincing reasons why the decision was originally erroneous or is no longer sound. Stafford has not shown this. We re-affirm our rulings in Matthew and in Ackerman that the restrictions of electronic monitoring under the release conditions in those cases are not the equivalent of incarceration for purposes of AS 12.55.025(c).
See Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997) (citing State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986)).
We do not have jurisdiction to decide Stafford's excessive sentence claim
Stafford argues that his 2-year term to serve is excessive. Because Stafford's time to serve does not exceed 2 years, this Court does not have jurisdiction to decide this claim. Therefore, we refer Stafford's excessive sentence claim to the supreme court for discretionary review. Conclusion
See Alaska R. App. P. 215(a)(1); AS 12.55.120(a).
The superior court's order granting Stafford credit for time on electronic monitoring is REVERSED. We REFER Stafford's excessive sentence claim to the supreme court.