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State v. Thompson

Court of Appeals of Alaska

April 20, 2018

STATE OF ALASKA, Petitioner,
v.
LOWELL JAMES THOMPSON IV, Respondent.

          Petition for Review from the Superior Court, Third Judicial District, Trial Court No. 3PA-16-424 CR Palmer, Kari Kristiansen, Judge.

          Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Petitioner.

          Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.

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

          OPINION

          MANNHEIMER JUDGE.

         In 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."

         In this 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?

         The 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.

         Before 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.[1]

         But the legislature amended AS 11.56.757 effective July 12, 2016.[2] 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".

         This 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).

         Then, 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, [3] violating one's conditions of bail release is again a crime - a class B misdemeanor.

         The 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).

         As we 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 monitoring.

         Underlying facts

         In 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.

          On 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 violation.

         Two 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.

         On 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.

         Thompson 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 monitoring release.

         Thompson 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.

         The 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 ...


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