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McKinley v. State

Court of Appeals of Alaska

September 11, 2009

Bobby Lee McKINLEY, Appellant,
v.
STATE of Alaska, Appellee.

Page 379

David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

BOLGER, Judge.

Bobby Lee McKinley argues that he should receive credit against his sentence of imprisonment for the time he spent in transitional housing while attending aftercare treatment at the Salvation Army Adult Rehabilitation Program. We conclude that, although McKinley was placed in residential treatment at the Salvation Army by a court order, his residence at the program for aftercare did not approximate incarceration because the program did not require residency, and because the facility did not require twenty-four hour custody or supervision.

Background

McKinley was indicted on one count of second-degree theft [1] on January 14, 2004, and was convicted of that charge on September 6, 2006. Prior to the entry of McKinley's no-contest plea, the superior court ordered McKinley to enter the Salvation Army's six-month residential treatment program as a condition of his pretrial release, and he remained at that facility until he completed residential treatment. Immediately after McKinley completed the residential treatment program, he entered the Salvation Army's aftercare program. McKinley missed two weekly group meetings and was consequently discharged from the aftercare program and evicted from the Salvation Army facility.

While participating in the aftercare program, McKinley lived in one of the Salvation Army's " grad rooms." These rooms provide optional transitional housing for residential program graduates enrolled in the Salvation Army's aftercare program. In order to remain in these facilities, the residents must comply with the Salvation Army's house rules.

Superior Court Judge Philip R. Volland granted McKinley's request for credit against his sentence for the time he spent in residential treatment. But McKinley also filed a motion requesting credit for the time he resided at the Salvation Army facility during aftercare. At a hearing on McKinley's motion, Larry Dean Bundy, the director of the Salvation Army program, testified that McKinley's residence during the aftercare program was essentially at the same location as the residential treatment facility, but that McKinley had significantly more freedom. Specifically, participants in the aftercare program could sign out-registering their destination and expected time of return-from six o'clock in the morning until curfew at eleven o'clock at night.

Judge Volland denied McKinley's request for credit for the time he attended the Salvation Army's aftercare program. The judge found that McKinley voluntarily chose to reside at its transitional housing and to be subjected to the Salvation Army's rules. Judge Volland also found that the Salvation Army aftercare program allowed McKinley

Page 380

to " basically go about ..., [and] do anything and everything that someone who is not in an incarcerative facility can do." Judge Volland ruled that McKinley was not entitled to credit for any of his time at the Salvation Army ...


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