Charles Winegarden, Kenai, for Appellant.
Marilyn J. Kamm, Assistant Attorney General, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.
Before: FABE, WINFREE, and CHRISTEN, Justices.
In this appeal we review the revocation of William Bailey's parole. After his conviction Bailey was ordered to " actively participate and successfully complete substance abuse treatment if offered" during his incarceration. At Bailey's initial parole hearing, the parole board directed Bailey to apply to a residential substance abuse treatment program. Bailey applied to a treatment program, but was rejected after raising legitimate concerns about the program's restrictions on his right to access the courts. Bailey successfully grieved those restrictions, but did not then reapply to the treatment program. The parole board revoked Bailey's mandatory parole on the ground that Bailey breached the court order to complete substance abuse treatment if such treatment was offered. The superior court affirmed the parole board's decision.
We conclude Bailey lacked adequate notice that his failure to reapply to and successfully enroll in a treatment program after he prevailed with his grievance would lead to revocation of his parole. We therefore reverse the superior court's affirmance of the parole board's decision and remand for proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
Bailey was convicted in 2001 of three counts of second-degree theft. In June 2002 Bailey was sentenced to ten years in prison, " with four years suspended and six years to serve." The judgment ordered Bailey to " actively participate and successfully complete substance abuse treatment if offered" during his incarceration.
In October 2002 Bailey was transferred to Wildwood Correctional Center (Wildwood). There Bailey signed a Prisoner Notice of Court-Ordered Treatment indicating he understood that if he refused to participate in a substance abuse treatment program offered to him, his mandatory parole could be revoked. Less than a month later Bailey was transferred to Spring Creek Correctional Center (Spring Creek). There Bailey submitted a Request for Interview asking for a " status check with regards to [his] court ordered treatment." The Department of Corrections (DOC) responded that Bailey had not previously applied to Wildwood's residential treatment program and that the parole officer at Wildwood was " not interested in reviewing [Bailey] at this time."
In February 2003 Bailey was transferred to a detention center in Arizona. Bailey later testified before the parole board that he applied for substance abuse treatment in Arizona but was placed on a waiting list. In apparent anticipation of his May 2004 transfer back to Spring Creek, Bailey completed an application for a treatment program at the Salvation Army Clitheroe Center (Clitheroe) in March 2004. Bailey's participation in Clitheroe's inpatient program would have required a furlough, but Bailey's furlough application was denied. Bailey was advised to complete a community work service program at Hiland Mountain Correctional Center (HMCC), after which Bailey would be allowed to reapply for a furlough. Bailey was transferred to HMCC in July 2004, but was transferred back to Spring Creek in November 2004.
In January 2005 Bailey again applied for a furlough, but he was advised to complete the Wildwood residential treatment program before his application for a furlough would be considered.
In April 2005 parole officer C.S. Pianko issued a Parole Violation Report, charging that Bailey had violated the terms of his judgment of conviction by " fail[ing] to actively participate and successfully complete substance abuse treatment offered to him while incarcerated." Pianko wrote that " Prisoner Bailey has been given numerous opportunities to engage in substance abuse treatment" while incarcerated, including opportunities to apply to the Wildwood program in December 2004 and in January 2005. Pianko recommended that Bailey's " statutory good time be revoked."
The parole board held Bailey's initial hearing on June 22, 2005. When the parole board asked Pianko for evidence supporting the violation charge, Pianko answered:
Actually in good faith, I cannot present any substantial supporting evidence.... He has never verbally said that he would not (indiscernible) in substance abuse treatment and ... he has never physically or verbally refused to deny [sic] or actually verbalized or documented the fact ...