Opinion
Court of Appeals No. A-9815.
June 18, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-05-1864 CI.
Byran B. Perotti, pro se, Eloy, Arizona, for Appellant. Marilyn J. Kamm, Assistant Attorney General, Criminal Division Central Office, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Byran B. Perotti was sentenced to 114 years of imprisonment, which he began serving on January 8, 1989. Perotti's convictions and sentences are as follows: murder in the first degree, 99 years; attempted escape in the first degree, 3 ½ years; assault in the third degree, 1 ½ years; and escape in the second degree, 10 years.
Perotti v. State, 843 P.2d 649, 649 (Alaska App. 1992).
Perotti v. State, 818 P.2d 700, 701 (Alaska App. 1991).
Id.
Perotti v. State, Alaska App. Memorandum Opinion and Judgment No. 3259 at 2 (Oct. 11, 1995), 1995 WL 17221323 at *1.
By statute, a prisoner is entitled to receive credit for "good time" on his sentence. This good time is awarded to the prisoner when he begins his sentence. Prisoners can lose credit for good time if they violate the rules of the institution. Alaska statutes also provide that a prisoner is eligible for discretionary parole only after the prisoner has served a portion of his period of confinement. For instance, in the case of Perotti's sentence of 99 years for murder in the first degree, the parties agree that Perotti is eligible for parole after he has served "at least one-third of the period of confinement imposed."
AS 33.20.010.
See State v. McCallion, 875 P.2d 93, 95 (Alaska App. 1994). However, it is only when a prisoner is released on mandatory parole that the Department of Corrections issues a "certificate." AS 33.20.030; Hill v. State, 22 P.3d 24, 28 (Alaska App. 2001).
See McCallion, 875 P.2d at 95.
Former AS 33.16.100(d).
The State argues that Perotti's period of confinement for murder in the first degree is 99 years of imprisonment and, therefore, Perotti must serve 33 years of imprisonment before he is eligible for discretionary parole. Perotti, however, points out that he was awarded 33 years of good time automatically when he began his sentence. He argues that therefore his "period of confinement imposed" is only 66 years, not 99 years. Under his theory, he would be eligible for parole after he served 22 years — one-third of 66 years.
Perotti filed an application for post-conviction relief in which he advanced this argument. Superior Court Judge Neisje J. Steinkruger rejected Perotti's argument and granted summary disposition to the State. Perotti appeals. We affirm the judgment of the superior court.
Why we conclude that good time credits do not reduce the period of confinement to be served before a prisoner is eligible for discretionary parole
Different rules apply to how much good time a prisoner receives on various sentences. But for purposes of deciding Perotti's case, we need only discuss his sentence of 99 years for murder in the first degree.
The Alaska Administrative Code provides a rule regarding the effect of accrued good time on the calculation of eligibility for discretionary parole. 22 AAC 20.085(b) states:
Good time credited under AS 33.20.010 does not reduce the term of imprisonment to be served before a prisoner is eligible for discretionary parole, except as provided for in AS 33.16.090(b).
This section of the administrative code provides support for the State's argument that good time credits are not considered when calculating an eligibility date for discretionary parole.
It is uncontested by the parties that the Alaska Parole Board has always interpreted Alaska law so that good time credits do not apply to the calculation used to determine a prisoner's eligibility date for discretionary parole. As the State states in its brief, "Good-time is never subtracted from the composite sentence when determining parole eligibility."
This interpretation of the administrative regulation appears to have substantial support. In Hampel v. State, we pointed out that Alaska's discretionary parole statutes derived from federal law, that the statutes governing good time were intended to be consistent with federal law, and that the federal statutes did not apply good time credit to determining a prisoner's eligibility for discretionary parole. But in Hampel we decided only that good time credit did not apply to calculating a mandatory minimum term of imprisonment. We specifically did not consider "whether deductions of good time . . . are otherwise applicable in determining discretionary parole eligibility." But, in numerous other cases, this court and the Alaska Supreme Court have assumed, without directly addressing the question, that good time credit did not apply to determining when a prisoner was eligible for discretionary parole.
911 P.2d 517 (Alaska App. 1996).
Id. at 522-23.
Id. at 523.
Id. at 523 n. 5.
See, e.g., Gilbert v. State, 139 P.3d 581, 589 n. 37 (Alaska 2006) ("Under AS 33.16.100(d) Gilbert must serve at least one-third of the twenty-five years, or eight years and four months, before becoming eligible for discretionary parole."); Ridgely v. State, 739 P.2d 1299, 1303 (Alaska App. 1987) ("Under the ninety-nine year sentences alone, the appellants will not become eligible for parole consideration until they have completed serving one third of their terms — thirty-three years of imprisonment.").
To bolster his argument, Perotti points to Alaska's Truth in Sentencing Act of 1997 and its legislative history. Perotti argues that this legislation reiterated that "confinement imposed" does not include the period of supervised release that is required by the mandatory parole statutes — i.e., a prisoner is eligible for discretionary parole after he has served one-third of the imposed sentence that remains after subtraction of the good time credit.
The Alaska Legislature passed the Truth in Sentencing Act of 1997. In the bill's original version, the bill required the sentencing judge, in stating the precise terms of the sentence imposed, to also state the minimum term of incarceration that the defendant is expected to actually serve if the defendant does not forfeit good time credits and the minimum time the defendant must serve before becoming eligible for release on discretionary parole. At some point after the bill left the Senate State Affairs Committee but before it was discussed in the Senate Judiciary Committee, the Department of Corrections proposed that the bill be amended to insert a new section — Section 2. This new Section 2 of Committee Substitute Senate Bill 67 amended AS 12.55.015 by adding the following subsection:
Ch. 37, § 2, SLA 1997.
S.B. 67, 20th Leg., 1st Sess., § 3 (1997).
House Fiduciary Files, memorandum from Gerald Luckhaupt, legislative counsel, to Senator Rick Halford, prime sponsor of S.B. 67 (April 14, 1997).
Unless a defendant is ineligible for a deduction under AS 33.20, when a defendant is sentenced to a term of imprisonment of two years or more, the sentence consists of two parts: (1) minimum term of imprisonment that is equal to not less than two-thirds of the total term of imprisonment; and (2) maximum term of supervised release on mandatory parole that is equal to not more than one-third of the total term of imprisonment; the amount of time that the inmate actually serves in imprisonment and on supervised release is subject to the provisions of AS 33.20.010 — 33.20.060.
C.S.S.B. 67 (JUD), 20th Leg., 1st Sess., § 2 (1997).
The purpose of this added language was to take advantage of a federal government incentive program that would provide the State of Alaska with $617,000 of federal funds for the first year, and approximately $500,000 per year for the following four years.
Minutes, Senate Judiciary Committee Hearing on S.B. 67 (Feb. 26, 1997).
The added language, which arguably bifurcates a sentence into two parts (the period of confinement and the period of supervised release) was thought to "qualify the State of Alaska to apply for and receive federal Truth-in-Sentencing grants under the United States Department of Justice Violent Offender Incarceration and Truth-in-Sentencing Incentive Grants program."
House Fiduciary Files, Fiscal Note on C.S.S.B. 67 (JUD) prepared by the Senate Finance Committee on March 13, 1997.
Margot Knuth, Assistant Attorney General, Criminal Division, Department of Law, explained to the Senate Judiciary Committee that several years prior, the federal government had instituted a truth in sentencing grant program that made funds available to states for prison construction and expansion. She explained that the grant program had two components: (1) truth in sentencing, and (2) a requirement that states actually impose at least eighty-five percent of the period of incarceration. She further explained that Alaska did not qualify for these funds because of the mandatory good time provision that allows up to one-third of a prisoner's sentence to be served on mandatory parole. The minutes to the Committee meeting indicate that Knuth further explained:
Minutes, Senate Judiciary Committee Hearing on S.B. 67 (Feb. 26, 1997).
Id.
Id.
The federal government has recently decided that requiring states to keep prisoners incarcerated for a full 85 percent of their sentences is hardly affordable for most states. Consequently, it has recognized several different exceptions to the 85 percent requirement. One, the Minnesota exception, provides that the sentence be defined to exclude any statutorily required supervised release periods. For Alaska's violent offenders, that would amount to the "good time" because they are spending more than two years incarcerated and are not being released on discretionary parole. Alaska might now be able to meet that requirement, but needs a language change to bifurcate the sentence, which is what Section 1 does [note: later became Section 2].
Id. (emphasis added).
In the House Judiciary Committee meeting, Brett Huber (legislative assistant to Senator Rick Halford, the prime sponsor), explained to the Committee that the bill did nothing to change how current sentences are imposed and changed nothing regarding mandatory or discretionary parole. The minutes also reflect that Knuth indicated that the new language in Section 2 clarified Alaska's existing system of not including supervised release time in the period of actual incarceration time — and, therefore, Alaska could qualify for the federal money that required prisoners to serve eighty-five percent of their sentences. The minutes state:
Minutes, House Judiciary Committee Hearing on C.S.S.B. 67 (JUD) (April 16, 1997).
[Knuth] pointed out that [the federal] truth in sentencing [grant] still required that a prisoner serve 85 percent of their sentence, but the Department of Justice had changed that to say that the 85 percent of the prison sentence was just the sentence of actual incarceration time and the state would not have to include supervised release time, which was what Alaska had with the mandatory parole system for anyone with a sentence of over two years. Ms. Knuth advised members that [this] was termed the "Minnesota Exception"; the way of bifurcating a sentence in statute, but did not change how long state prisoners would actually serve.
. . .
Ms. Knuth advised members that if the state was required to go from 66 percent to 85 percent of sentences for Alaska prisoners, that the price tag on that would never motivate the state to participate; however, she pointed out that truth in sentencing, in itself, was a good goal because there were misconceptions about how long a person would be incarcerated.
Id.
In essence, Knuth's testimony indicated that Alaska should qualify for the federal grant money under the Minnesota Exception because the period of time that someone is on mandatory parole is "supervised release time," and not "actual incarceration time."
Perotti argues that the language proposed by the Department of Corrections, in an attempt to get federal dollars, and adopted by the legislature, shows that criminal sentences in Alaska are bifurcated: one part of the sentence is the actual period of confinement imposed and the other part of the sentence is the period of supervised release.
See AS 12.55.015(g).
Perotti argues that the legislative history of Alaska's Truth in Sentencing Act of 1997 and the addition of AS 12.55.015(g) support his argument that his eligibility for discretionary parole must be calculated based on his sentence after his good time credit is deducted. But there is nothing in the legislative history that indicates that the legislature intended to change defendants' eligibility for discretionary parole. We must look at the legislation in light of the fact that the Alaska Statutes addressing a defendant's eligibility for discretionary parole were derived from federal statutes and that there has been a consistent history of interpreting a prisoner's eligibility for discretionary parole based on the sentence of imprisonment that the court imposed, rather than the sentence that remains after deducting the prisoner's good time.
We conclude that Judge Steinkruger did not err in holding that Perotti's eligibility for discretionary parole must be calculated based on his sentence, not based on his sentence after a deduction for good time credit. Accordingly, Judge Steinkruger did not err in granting the State's motion for summary disposition.
The judgment of the superior court is AFFIRMED.