Opinion
Court of Appeals No. A-10397.
December 2, 2009.
Appeal from the District Court, Third Judicial District, Anchorage, Alex M. Swiderski, Judge, Trial Court Nos. 3AN-07-11918 Cr and 3AN-07-13538 Cr.
Steven E. Sumidan and James E. Gorton Jr., Gorton, Logue, Graper, Anchorage, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
James Kevin Hoge pleaded no contest (in the district court's "wellness court" program) to the charges of driving under the influence and violating the conditions of his release (by drinking alcohol) in case number 3AN-07-11918 Cr. Six days later, apparently in exchange for Hoge's no contest pleas to the two charges in case number 07-11918, the Municipality of Anchorage dismissed a separate case, case number 3AN-07-13538 Cr, that was pending against Hoge in the "normal" district court. In this latter case, Hoge was charged with violating the conditions of release in an earlier domestic violence assault case.
Anchorage Municipal Code §§ 9.28.020 and 8.30.110.A, respectively.
Eight months after Hoge entered his no contest pleas in case number 07-11918, he asked the district court to give him credit against his sentence for the 44 days he spent in custody in connection with the now-dismissed charge in case number 07-13538 (the charge of violating the conditions of his release in the domestic violence case). The district court denied Hoge's motion, and Hoge now appeals the district court's decision.
Under AS 12.55.025(c), "[a] defendant shall 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." The question here is whether the 44 days that Hoge spent in pre-trial custody in the dismissed case, 07-13538, qualify as a "detention . . . in connection with the offense for which [Hoge's] sentence was imposed" in case number 07-11918.
Hoge advances two reasons why the time he spent in custody in case number 07-13538 should be considered to be "in connection with" the offenses for which he was sentenced in case number 07-11918. First, Hoge points out that the two cases were resolved in a single plea bargain. And second, Hoge notes that his violation of the conditions of his release in case number 07-13538 was reported by the person who was serving as Hoge's third-party custodian in case number 07-11918.
Hoge relies primarily on this Court's decision in Walters v. State, 798 P.2d 357 (Alaska App. 1990). He interprets Walters to mean that if separate criminal cases are resolved in a single plea agreement, all of the charges in those cases become "connected" for purposes of calculating the defendant's credit for time served. This is incorrect.
In Walters, we adopted a rule that applies when a probationer or parolee is charged with committing a new crime and the government also files a petition to revoke the defendant's probation or parole based on the new crime. We held that, in such circumstances, if the new criminal charge is dismissed (or if the defendant goes to trial and is acquitted), but the defendant's probation or parole is revoked because of the new offense, the defendant will be entitled to credit against their probation or parole revocation sentence for any time that the defendant served in pre-trial detention in connection with the new offense. Id. at 358-59.
See also Raymond v. State, Alaska App. Memorandum Opinion No. 4913 (August 18, 2004), 2004 WL 1837708: a defendant who was jailed for violating the conditions of his bail, and who was charged with the separate offense of violating the conditions of his release, was entitled to credit for the time he spent in custody for the new offense ( i.e., violation of conditions of release) when that new offense was dismissed and the defendant was sentenced for the underlying crime that gave rise to the bail conditions.
Our decision in Walters does not stand for the broad principle that Hoge proposes: the contention that all of the offenses resolved in a single plea agreement become "connected" for purposes of calculating the defendant's credit for time served under AS 12.55.025(c). Indeed, Walters implicitly states that this is not the rule — because Walters involved a plea agreement, but we did not base our decision on this fact. Rather, we relied on the fact that the same underlying criminal conduct gave rise both to the new criminal charge against Walters and to the petition to revoke Walters's probation; w e concluded that considerations of fairness required us to construe the statute so that Walters would receive credit for time served regardless of which case the government chose to pursue. Walters, 798 P.2d at 358-59.
The situation is different in Hoge's case, because his two criminal cases were based on discrete unlawful conduct.
In case number 07-13538, Hoge was arrested for violating two of the conditions of his release in a domestic violence assault case: he consumed alcohol, and he contacted his wife. In case number 07-11918, Hoge was charged with driving under the influence, and he was also charged with the separate offense of violating the conditions of his release in two prior cases (by consuming alcohol).
It is true, as Hoge points out, that his act of drinking alcoholic beverages might have been charged, not only as a violation of the conditions of his release in the domestic violence case, but also as a violation of the conditions of his release in the DUI case (because, in that case too, Hoge was ordered not to drink alcoholic beverages). But that is not how the Municipality of Anchorage pursued the charge.
Moreover, there is absolutely no indication that the Municipality's charging decision was motivated by tactical maneuvering to deprive Hoge of potential credit for time served. Rather, after Hoge drank alcoholic beverages and improperly contacted his wife, it made sense for the Municipality to pursue this matter by charging Hoge with violating the conditions of his release in the domestic violence assault prosecution — because, in that prosecution, the Municipality could pursue both of the types of misconduct that Hoge had engaged in: drinking alcoholic beverages and contacting his wife.
For these reasons, we reject Hoge's argument that he should receive credit for time served under the rule established by this Court in Walters.
Hoge's remaining argument is that his offenses should be considered "connected" for purposes of AS 12.55.025(c) because Defendant Monitoring Services, his third-party custodian in case number 07-11918 (the DUI case) was the entity that reported Hoge for consuming alcoholic beverages — one of the two alleged violations of Hoge's conditions of release in case number 07-13538. In other words, Hoge contends that when a third-party custodian appointed in one case reports the defendant's violation of a condition of release in another case, the defendant's offenses in these two cases become "connected" for purposes of awarding credit for time served under AS 12.55.025(c).
Hoge cites no authority in support of this contention.
As we just explained, because of Hoge's consumption of alcohol, the Municipality could have charged Hoge with violating the conditions of his release in any (or none) of Hoge's open cases that included a "no alcohol" condition of release. Moreover, as we also explained, the Municipality had a good reason to pursue this matter in Hoge's domestic violence case because, in addition to drinking, Hoge had also contacted his wife in violation of his bail conditions.
We conclude that neither existing law nor considerations of fairness require us to stretch the language of AS 12.55.025(c) to encompass this situation.
Conclusion
The judgement of the district court is AFFIRMED.