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Marcus Gene Arnett v. State of Alaska

April 20, 2011

MARCUS GENE ARNETT,
APPELLANT,
v.
STATE OF ALASKA, AND JUDGMENT APPELLEE.



Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Court of Appeals No. A-10602 Trial Court No. 3AN-09-5216 CI

The opinion of the court was delivered by: Bolger, Judge.

NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

Marcus Gene Arnett's parole was revoked because he failed to attend a sex offender assessment. Arnett argues that his parole should have terminated on the date stated in his original sentence, that the parole conditions requiring him to participate in sex offender treatment violated his privilege against self-incrimination, and that he was deprived of his right to cross-examine adverse witnesses during his parole revocation hearing. We conclude Arnett failed to raise any material factual issues supporting his confrontation claim and that his other claims are barred by collateral estoppel.

Background

In 1990, Arnett was convicted of three counts of first-degree sexual abuse of a minor for sexually abusing his stepdaughter and sentenced to sixteen years with one year suspended. Arnett was also convicted of failing to appear at his trial and was sentenced to two-and-a-half years with one year suspended. Arnett has previously been released on parole, and his release has been revoked on several previous occasions.*fn1

In November 2007, Arnett was again on parole release. Arnett sent an e- mail to his parole officers indicating he would not participate in a sex offender assessment. He was arrested two days later for failing to attend a previously scheduled assessment. The parole violation report indicated that the parole officers informed Arnett by e-mail and telephone about the date of the assessment and that they were notified when Arnett failed to attend.

Based on this violation, the Parole Board revoked Arnett's parole and imposed the remainder of his sentence. The order revoking Arnett's parole states that Arnett admitted the charged violation.

Arnett filed an application for post-conviction relief, alleging that his parole release date had been extended in violation of the guarantee against double jeopardy, that he was denied the right to cross-examine witnesses at his parole revocation hearing, and that he had a Fifth Amendment right to refuse to participate in sex offender treatment.

After the State filed its answer, Arnett filed a motion for summary disposition, arguing that there were no genuine issues of material fact and that he was entitled to post-conviction relief as a matter of law.*fn2 Superior Court Judge Michael Spaan concluded that Arnett's claim about his parole termination date had already been decided by this court in a 2007 decision.*fn3 Judge Spaan also concluded that this court had previously rejected Arnett's self-incrimination claim.*fn4

Judge Spaan also concluded that Arnett had failed to present any evidence supporting his claim that he was denied the right to cross-examine adverse witnesses at his parole revocation hearing. The judge warned Arnett that the court would summarily dismiss his application unless he filed evidence to support his claim.

Arnett did not provide any additional evidence supporting his confrontation claim. The court then dismissed Arnett's application for ...


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