Petition for Review from the Superior Court, Third Judicial
District, Trial Court No. 3PA-16-424 CR Palmer, Kari
Black, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Petitioner.
Johnson, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
2015, the Alaska Legislature amended AS 12.55.027(d) to give
trial courts the authority to grant credit against a sentence
of imprisonment for time that the defendant spent on
electronic monitoring as a condition of bail release,
provided that certain statutory requirements are met. One of
these requirements is that the person "has not committed
a criminal offense while under electronic monitoring."
case, we are required to decide a question relating to
criminal defendants who violated a condition of their bail
release while on electronic monitoring between July 12, 2016
and November 27, 2017. Did a violation of bail conditions
during this 16-month period constitute a "criminal
offense" - thus disqualifying the defendant from
receiving credit toward their sentence under AS 12.55.027(d)
for the time they spent on electronic monitoring?
significance of these two dates - July 12, 2016 and November
27, 2017 - lies in the fact that, during the past two years,
the Alaska Legislature has twice amended AS 11.56.757, the
statute that forbids a person from violating the conditions
of their bail release.
July 12, 2016, Alaska law clearly stated that it was a crime
to violate the conditions of one's bail release. The
pre-July 2016 version of AS 11.56.757(b) declared that a
person who violated a condition of their bail release was
guilty of a class A misdemeanor if they were released on a
felony charge, or guilty of a class B misdemeanor if they
were released on a misdemeanor charge.
legislature amended AS 11.56.757 effective July 12,
2016. Under this amended version of the statute,
a person who violated a condition of their bail release was
guilty only of "a violation punishable by a fine of up
to $1, 000".
was a significant change because, under the Alaska Criminal
Code, the term "violation" has a specialized
meaning: it is "a noncriminal offense punishable only by
a fine", and "conviction of a violation does not
give rise to any disability or legal disadvantage based on
conviction of a crime". AS 11.81.9OO(b)(65).
in late 2017, the legislature amended AS 11.56.757 again.
Under the current version of this statute, which took effect
on November 27, 2017,  violating one's conditions of bail
release is again a crime - a class B misdemeanor.
question presented in this case is whether, during this
interim period of approximately 16 months, a violation of
one's conditions of release stopped being a
"criminal offense" - so that defendants on
electronic monitoring who violated their conditions of bail
release in non-criminal ways did not forfeit the credit they
had accrued toward their sentence under AS 12.55.027(d).
explain in this opinion, we conclude that, during this
16-month period, defendants who violated their conditions of
bail release in a non-criminal way (i. e., other
than by committing a new crime) did not "commit a
criminal offense" for purposes of AS 12.55.027(d) - and,
thus, the defendant's violation of their conditions of
release did not disqualify them from getting credit against
their sentence for the time they spent on electronic
February 2016, Lowell James Thompson IV was arrested on
various charges, including driving under the influence and
felony eluding. Thompson was released on pre-trial bail, with
a condition of electronic monitoring. Thompson's other
bail conditions included prohibitions on his use of alcohol
and controlled substances.
July 12, 2016, while Thompson was on electronic monitoring, a
new version of AS 11.56.757 took effect. Under this new
version, the act of violating the conditions of one's
bail release was no longer a misdemeanor, but only a
weeks later, on July 27, Thompson was remanded to custody
following his arrest for two new crimes: fourth-degree
assault and fourth-degree criminal mischief. The State also
alleged that Thompson violated the bail condition that
forbade him from consuming alcohol.
August 2, 2016, Thompson was released on electronic
monitoring again. Two and a half months later, on October 19,
2016, Thompson was again remanded to custody after his urine
tested positive for heroin, cocaine, and methamphetamine.
Thompson was not released on bail again in this case.
ultimately reached a plea agreement with the State. Under the
terms of this agreement, Thompson pleaded guilty to driving
under the influence and to felony eluding. The State
dismissed the other charges, including the fourth-degree
assault and fourth-degree criminal mischief charges for which
Thompson was arrested during his first period of electronic
received a composite sentence of 3 years and 90 days, with 60
days suspended. At his sentencing, Thompson asked the
superior court to give him credit against this sentence under
AS 12.55.027(d) for the approximately seven months - a total
of 214 days - that he spent on electronic monitoring.
State argued that Thompson was disqualified from receiving
any credit against his sentence because, both times that he
was released on electronic monitoring, he violated the
conditions of his release - by consuming alcohol and by
committing new crimes during ...