Opinion
Court of Appeals No. A-9414.
March 26, 2008.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge, Trial Court No. 1KE-05-02 CI.
Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marilyn J. Kamm, Assistant Attorney General, Criminal Division Central Office, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
James A. Charles Jr. appeals the superior court's dismissal of his application for post-conviction relief. Charles contended that the Alaska Board of Parole revoked his mandatory parole without justification. We affirm the superior court because there was a rational basis for the parole board's decision that was supported by substantial evidence.
Background facts and proceedings
In 1994, a jury convicted Charles of first-degree sexual assault, second-degree sexual abuse of a minor, and second-degree sexual assault. Superior Court Judge Thomas M. Jahnke imposed a composite 25-year term with 5 years suspended. This court affirmed Charles's convictions and sentence on direct appeal.
AS 11.41.410(a)(1); AS 11.41.436(a)(1); and AS 11.41.420(a)(3)(B), respectively.
See Charles v. State, Alaska App. Memorandum Opinion and Judgment No. 3587 (April 2, 1997), 1997 WL 33832396.
During sentencing, Judge Jahnke ordered Charles to "take advantage" of all sex offender treatment while incarcerated and on probation. Charles entered sex offender treatment at Meadow Creek Correctional Center early in 2003, but he was discharged on April 29, 2003, before completing the program. The discharge summary included the treatment team's observation that Charles "had not been engaged in treatment or shown the least bit of commitment or desire to change himself. He was not amenable to treatment at this time."
The Alaska Board of Parole held an anticipatory mandatory parole revocation hearing based on "the allegation that [Charles] violated the order of the court requiring [him] to submit to sex offender evaluations and treatment while in jail." Based on Charles's removal from the program, the board revoked Charles's good time credit towards mandatory parole.
Charles filed an application for post-conviction relief. Charles alleged that "the revocation of more than six years of good time was illegal as he did not violate his parole as alleged." Superior Court Judge Trevor N. Stephens dismissed Charles's application. Judge Stephens found that there was no dispute that substantial evidence supported the board's finding that Charles was discharged from the sex offender program for not completing the program. He concluded that Charles's discharge was a reasonable basis for the board's decision to revoke his good time credit. Charles appeals.
Discussion
The judgment entered by Judge Jahnke following Charles's conviction provided:
IT IS FURTHER ORDERED THAT defendant submit to sex offender evaluations and treatment while in jail . . .
[and] [t]ake advantage of all sexual offender treatment offered in jail and on probation. Submit to all evaluations to determine sexual offender treatment needs in jail and on probation.
On appeal, Charles argues that the parole board's finding that Charles failed to "participate in and complete" sex offender treatment does not accurately reflect what Judge Jahnke actually ordered at sentencing. He argues that Judge Jahnke only required that Charles "take advantage of" and "participate in" such treatment. Charles contends that these phrases have a different meaning than "participate in and complete" and, therefore, the parole board could not have found a violation of the court's order.
Judge Stephens viewed the issue facing the parole board as whether Charles failed to "take advantage" of the sex offender treatment program. Judge Stephens relied on Alexander v. State.
38 P.3d 543 (Alaska App. 2001).
In Alexander, the defendant was convicted of first-degree sexual assault and second-degree sexual abuse of a minor. Alexander's sentencing judge, Judge Jahnke, ordered Alexander to "take advantage of sex offender . . . programs that are available in the facility unless an evaluator in the facility indicates that it's not necessary." Alexander entered the pre-treatment sex offender program at the Lemon Creek Correctional Center but was removed from the program on the ground that he was not in compliance with the program's requirements. Based on Alexander's discharge from the program, the parole board revoked his good time for failing to comply with Judge Jahnke's sentencing order requiring Alexander to take advantage of sex offender treatment programs while incarcerated.
Id. at 544.
Id.
Alexander filed an application for post-conviction relief, challenging the parole board's decision. Alexander recognized that a sentencing court could order him to "participate in or comply with" the treatment plan of a rehabilitative program under AS 12.55.015(a)(10). But he argued that Judge Jahnke's order requiring him to "take advantage of" sex offender programs while incarcerated had a different meaning than "participate in or comply with" a treatment plan. The superior court (Judge Stephens) ruled that "take advantage of" meant that Alexander had to "enroll in and fully participate" in the treatment program and dismissed Alexander's application. This court affirmed the superior court, stating: "Despite the parole board's reference to Alexander's failure to complete the treatment program, Judge Stephens found that the parole board's decision was that Alexander had failed to meaningfully participate in the program. We agree."
Id.
Id. at 544 — 45.
Id. at 545.
Id.
Charles argues that the parole board's determination that Charles failed to "participate in and complete" sex offender treatment does not accurately reflect what Judge Jahnke ordered at sentencing — that Charles must "take advantage of" and "participate in" such treatment. But as we ruled in Alexander, "take advantage of" means that Charles was obligated to participate in offered sex offender treatment, and Judge Stephens ruled that there was substantial evidence in the record before the parole board to support the board's decision.
Charles maintains that "take advantage of" sex offender treatment was equivalent to meaning that a defendant's efforts only have to be "meaningful," not that he had to complete the treatment. But in Alexander, this court agreed with Judge Stephens's ruling that "take advantage of" meant that Alexander had to "enroll in and fully participate" in the treatment program. The record here contains substantial evidence that Charles failed to fully participate in the treatment program. Therefore, Judge Stephens properly up held the parole board's decision because there was no dispute of material fact that Charles had not taken advantage of the sex offender program.
Charles also argues that revocation of his good time violates due process. Charles concedes he was on notice that he had to participate in sex offender treatment, but he argues that he was not on notice that he had to complete treatment or complete treatment by any specific time before release. Charles also contends that due process was violated when the parole board revoked his good time "while he still maintained the option of re-entering the program."
As the State points out, Charles did not raise these due process claims below. Therefore, the claims are not preserved.
The superior court rejected a due process claim that Charles raised in the superior court. Charles claimed that his right to due process was violated because he could not reenter a treatment program after he was discharged because the Department of Corrections terminated all in-custody sex offender treatment. Judge Stephens rejected this claim, ruling that the parole board relied on Charles's discharge from the program based on his conduct, not on the later unavailability of a treatment program. Charles has not convinced us that the parole board's reliance on Charles's discharge based on his conduct while in the treatment program violates due process.
Conclusion
The judgment of the superior court is AFFIRMED.