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State v. Howard

Court of Appeals of Alaska

September 18, 2015

STATE OF ALASKA, Appellant,
v.
LEONARD J. HOWARD, Appellee

Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Trial Court No. 4AK-08-31 CR.

Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant.

Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Andrews, Senior Superior Court Judge.[*]

OPINION

Page 1208

ALLARD, Judge, writing for the Court.

Chief Judge MANNHEIMER, with whom Senior Judge ANDREWS joins, concurring.

The State appeals an order by the superior court discharging Leonard J. Howard from probation and granting him a 12-month credit against his sentence based on a legal theory that was never litigated by the parties. On appeal, Howard concedes that the superior court's ruling was flawed, and he agrees that he is not entitled to the 12-month credit.

Howard argues, however, that he is entitled to discharge from his probation. He asserts that he is owed jail-time credit for time he spent in a halfway house and in residential treatment while he was on parole and probation. Howard further asserts that once this jail-time credit is properly applied to his remaining sentence, there will be no more time to serve in his case. He therefore urges this Court to affirm the order discharging him from probation on this alternative ground.

For the reasons explained here, we agree with the parties that the superior court erroneously gave Howard a 12-month credit against his sentence. We also conclude that we cannot determine from the current record whether Howard is entitled to the jail-time credit he seeks. Accordingly, we vacate the superior court's order and remand the case to the superior court for further proceedings consistent with this decision.

Factual and procedural background

In 2008, Leonard Howard pleaded guilty to third-degree assault. He received a sentence of 48 months' imprisonment with 45 months suspended (3 months to serve), and he was also sentenced to supervised probation for 5 years.

Over the next three years, Howard's probation was revoked four times. At Howard's first probation revocation hearing, the superior court imposed 3 months of Howard's suspended time (leaving 42 months still suspended on Howard's original sentence). After serving this sentence (2 months of actual imprisonment, plus 1 month of good-time credit),[1] Howard was released on probation.

At Howard's second probation revocation hearing, the superior court imposed 6 months to serve (leaving 36 months still suspended on Howard's original judgment). After serving this sentence (4 months of actual imprisonment, plus 2 months of good-time credit), Howard was again released on probation.

At Howard's third probation revocation hearing, the superior court imposed 24 months to serve (leaving 12 months still suspended on Howard's original judgment). This 24-month sentence was sufficiently long enough to trigger the requirements of mandatory parole under AS 33.20.040(a).[2] Thus, after serving two-thirds of the 24-month sentence for his third probation revocation ( i.e., after serving 16 months), Howard was released on mandatory parole and required to serve a parole term equivalent to the good time awarded on his 24-month sentence ( i.e., he was required to serve 8 months under

Page 1209

parole supervision).[3] In addition, because Howard was still on probation, and still had 12 months of suspended time on his original sentence, he was not done with his probation obligations.

Under Alaska law, probation runs concurrently with parole.[4] Thus, when Howard was released from prison after serving his sentence for his third probation revocation, he was under the concurrent jurisdiction of both the Parole Board and the superior court. This meant that if Howard violated the terms of his parole, he would be subject to parole revocation by the Parole Board, and the Board could potentially revoke the 8 months of good-time credit that he was serving on parole and send him back to prison to serve those 8 months. In contrast, if Howard violated the terms of his probation, he would be subject to probation revocation by the superior court, and the court could potentially impose some or all of the remaining 12 months of suspended jail time from his original sentence.

Although Howard faced different consequences for violating his parole and probation, the same person served as his parole and probation officer, and that person was simultaneously tasked with overseeing Howard's compliance with both his parole and probation conditions.[5]

According to the pleadings Howard filed in the superior court, Howard was scheduled to be released from incarceration for his third probation revocation on February 1, 2011, but he was not actually released from custody on that day. Instead, Howard claims that his parole/probation officer directed him to reside at the Tundra Center, a halfway house in Bethel. Howard apparently remained at this halfway house for 132 days, until a treatment bed opened up at the Phillips Ayagnirvik Treatment Center, a residential substance abuse treatment program in Bethel. Howard spent 32 days in this residential treatment program and was released on July 15, 2011. That fall, Howard was discharged from parole, having successfully completed his parole without any violations or revocations. (We do not know the exact date when Howard was discharged from parole, because his parole discharge report is not part of the record.)

Although Howard was discharged from parole, he was still on probation, and he still had 12 months of suspended time on his original sentence that the superior court could impose if Howard violated the terms of his probation.

In early 2012, Howard again violated the terms of his probation, and the State filed a fourth petition to revoke probation. Superior Court Judge pro tem Natalie Finn presided over Howard's fourth probation revocation hearing. At the hearing, Judge Finn revoked Howard's probation and imposed 6 months of Howard's remaining 12 months of suspended jail time. However, Judge Finn also found that, given Howard's repeated failures at probation and his ongoing substance abuse issues, it would be pointless for Howard to continue on probation. Judge Finn therefore ordered that once Howard served the 6-month sentence imposed for his fourth probation violation, his probation would terminate and he would be unconditionally discharged from his sentence.

Instead of immediately serving this final 6-month sentence, Howard asked that his remand date be postponed so that he could litigate whether he might be entitled to jail-time credit against this sentence based on the time he spent after his third probation revocation at the halfway house and the residential treatment center. Judge Finn granted this request. Howard therefore remained out of custody while the parties litigated the issue of jail-time credit.

By the time Howard's attorney filed the motion for jail-time credit, Superior Court Judge Charles W. Ray Jr. had been appointed as a ...


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