Opinion
Court of Appeals No. A-9999.
October 20, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Morgan Christen, Judge. Trial Court No. 3AN-05-13722 Civ.
Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marilyn J. Kamm, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
This case involves a somewhat unusual situation. In August 1997, Lewis Jordan Jr. was sentenced to a composite term of 8½ years' imprisonment for burglary and theft. In late June 2003, Jordan's good time credit equaled the amount of time remaining in his sentence, and he should have been released on mandatory parole under the supervision of the Parole Board. Jordan was, in fact, released from prison at that time — but through a procedural mix-up, Jordan's release was attributed to his bail release in a pending misdemeanor prosecution. The Department of Corrections failed to tell Jordan that he was being released on mandatory parole. Indeed, it appears that the Department of Corrections failed to realize that Jordan was — or, at least, should have been — released on parole status.
See AS 33.20.040(a).
Shortly after his release from prison in June 2003, Jordan was charged with a series of unlawful acts. At the end of June, he was arrested for driving with a suspended license and for providing false information to the police. In late August, and again in late September, Jordan was charged with being outside the presence of the third-party custodian who was supervising his bail release from these June charges. Also at the end of September, Jordan was charged with possession of a controlled substance (marijuana).
In August 2004, the Department of Corrections belatedly realized that Jordan should have been on parole supervision starting from the time he was released from prison in June 2003. On August 27th, the Department asked the Parole Board to issue a warrant for Jordan's arrest, charging him with violating his parole by engaging in the conduct described in the preceding paragraph.
In September 2005, the Parole Board found that Jordan had engaged in all of the described misconduct except driving with a suspended license. Based on these findings, the Parole Board revoked Jordan's parole and took away his good time credit, thus sending him back to prison.
Following the Parole Board's action, Jordan filed a petition for post-conviction relief in the superior court, claiming that it was fundamentally unfair for the Parole Board to revoke his parole. Jordan argued that even though he should have been placed on mandatory parole when he was released from prison in June 2003, the Department never notified him that he was being released as a parolee, and the Department never informed him that he would be required to conform his conduct to any conditions of parole. Jordan contended that it was fundamentally unfair — a denial of due process of law — to revoke his parole for conduct that he committed before anyone notified him that he was on parole, and before anyone informed him of the conditions of conduct governing his parole.
Superior Court Judge Morgan Christen held an evidentiary hearing on Jordan's claims. Following this hearing, Judge Christen concluded that even though the Department of Corrections never formally notified Jordan that he was released on mandatory parole, and even though the Department never established a program of parole supervision for Jordan, Jordan actually knew that he had been released as a parolee. Judge Christen also found that, even though the Parole Board never set any conditions of conduct to govern Jordan's parole, Jordan knew that he was required to obey all federal and state laws — and that, accordingly, it was not unfair for the Parole Board to revoke Jordan's parole based on his new violations of law.
In this appeal, Jordan takes issue with the superior court's finding that he knew he was released on parole. Jordan argues at length, based on the evidence presented during the post-conviction relief litigation, that the superior court's finding is clearly erroneous — that he did not know that he had been released on parole.
We need not decide whether the superior court's finding is clearly erroneous — because, ultimately, the superior court's finding is moot.
Under Alaska law, a person's probation or parole can be anticipatorily revoked for misconduct they commit before they are officially placed on probation or parole. See Wozniak v. State, 584 P.2d 1147, 1148 (Alaska 1978); Webb v. Alaska Department of Corrections, 963 P.2d 1074, 1076 (Alaska App. 1998); Enriquez v. State, 781 P.2d 578, 579-580 (Alaska App. 1989); Betzner v. State, 768 P.2d 1150, 1154 (Alaska App. 1989); Benboe v. State, 738 P.2d 356, 359-360 (Alaska App. 1987); Gant v. State, 654 P.2d 1325, 1326-27 (Alaska App. 1982).
Thus, even if Jordan misunderstood the reason for his release from prison in June 2003, and even if Jordan did not know that he had been — or, at least, should have been — released as a parolee, this would not affect the Parole Board's authority to revoke Jordan's parole based on the misconduct he committed in the months following his release. Indeed, even if this Court were to conclude that, as a matter of law, Jordan's status as a parolee did not commence until August 2004 (when the Department of Corrections realized its mistake), this would not alter the Parole Board's authority to anticipatorily revoke Jordan's parole based on his acts of misconduct in June through September 2003.
We acknowledge that it might well have been fundamentally unfair for the Parole Board to revoke Jordan's parole based on his failing to live up to unannounced special requirements of conduct — even if those requirements were the sort that are routinely or typically imposed by the Parole Board on all parolees.
But Jordan's parole was not revoked for his failure to abide by any unannounced conditions of conduct. Rather, Jordan's parole was revoked because he committed new violations of the law. And under Alaska law, a person's probation or parole can be revoked for the commission of a new crime, even if the person's specific conditions of probation or parole do not explicitly forbid that conduct. See Wozniak, 584 P.2d at 1148; Marunich v. State, 151 P.3d 510, 515 (Alaska App. 2006); Benboe, 738 P.2d at 359-360; Gant, 654 P.2d at 1326-27.
For these reasons, we conclude that the superior court correctly denied Jordan's petition for post-conviction relief. The judgement of the superior court is AFFIRMED.