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Belknap v. State

Court of Appeals of Alaska

July 27, 2018

SHAWN GREGORY BELKNAP, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, No. 3AN-14-2560 CR, Third Judicial District, Anchorage, Kevin M. Saxby, Judge.

          Lars Johnson (opening brief) and Megan R. Webb (reply brief), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

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

          OPINION

          ALLARD JUDGE.

         Pursuant to a plea agreement, Shawn Gregory Belknap was convicted of felony driving under the influence and sentenced to 3 years to serve.[1] A few months after his sentence was imposed, Belknap filed a pro se motion under AS 12.55.027(d) requesting sentencing credit for the time he spent on bail release under conditions that included court-ordered electronic monitoring. Belknap also requested that counsel be appointed to assist him in this litigation. The superior court denied Belknap's request for counsel. The court ultimately granted Belknap's request for sentencing credit in part, granting Belknap 62 days of credit out of the approximately 279 days of credit that he sought.

         Belknap now appeals, arguing that the superior court erred when it denied him the additional credit he sought. Belknap also argues that the superior court erred when it denied his request for appointment of counsel. For the reasons explained here, we conclude that a post-judgment motion for sentencing credit under AS 12.55.027(d) is a critical stage of a criminal proceeding for which a defendant is entitled to the assistance of counsel. We therefore conclude that Belknap is entitled to re-litigate his request for the additional credit with the assistance of counsel that he was previously denied. Because Belknap's counsel may have additional evidence or arguments to offer in support of this request, we express no opinion as to whether Belknap is entitled to the additional sentencing credit he seeks.

         Background facts and prior proceedings

         Belknap was arrested in March 2014 for felony driving under the influence, reckless driving, and driving while license revoked. A month after his arrest, Belknap was released on bail under conditions that included 24-hour GPS-based electronic monitoring supervision through a steel cuff monitor on Belknap's ankle. The bail order restricted Belknap to his house, with limited passes for work, court, and medical appointments. Belknap was also required to carry a remote SCRAM breath alcohol monitor, which would test Belknap's breath for the presence of alcohol at both scheduled and random times throughout the day. The SCRAM monitor was equipped with a separate GPS tracking system and facial recognition software to ensure Belknap's compliance with the tests. Belknap successfully completed 62 days without any violations of the conditions of his bail release while under this bail order.

         At Belknap's request, the trial court then modified Belknap's bail release to eliminate the 24-hour GPS-based continuous electronic monitoring. The court retained the SCRAM breath alcohol monitoring. Under this modified bail order, Belknap's movements were only tracked intermittently, through the GPS-based SCRAM breath alcohol tests. Belknap's time at work was also directly supervised by a live third-party custodian.

         Belknap was less successful on these modified conditions. After approximately six months on the modified bail release program, Belknap failed two different drug tests and he was remanded to custody for that reason. Less than a month later, Belknap was re-released on the same modified bail conditions, but subsequently remanded to custody again after another failed drug test.

         On April 6, 2015, Belknap pleaded guilty to felony driving under the influence pursuant to a plea agreement, and he was sentenced to 3 years to serve. Belknap was represented by privately retained counsel at his sentencing hearing.

         Shortly after Belknap was sentenced, the Alaska legislature enacted the current version of AS 12.55.027(d), which allows trial courts to grant sentencing credit to defendants who are on court-ordered electronic monitoring programs during their bail release.[2] This sentencing credit is not available to defendants who commit "a criminal offense" while on their electronic monitoring program.[3] In most instances, a defendant's violation of a condition of release qualifies as a "criminal offense" for these purposes and precludes a defendant from receiving credit under AS 12.55.027(d).[4]

         In July 2015, shortly before this new legislation went into effect, Belknap filed a pro se motion under the new statute. In that motion, Belknap sought credit for the approximately 279 days that he spent on pretrial bail release in his case. The court refused to hear the pro se motion because Belknap was still represented by his private counsel.[5] Belknap's private counsel was then permitted to withdraw, and the court then accepted the pro se motion for filing.

         The State opposed Belknap's claim for credit on multiple grounds. The State argued first that the statute could not be retroactively applied to Belknap. The State also argued that Belknap's modified monitoring program was not sufficiently comprehensive or restrictive to qualify for "electronic monitoring" for purposes of AS 12.55.027(d). Lastly, the State argued that Belknap was ineligible for any sentencing credit because he had violated the conditions of his release by ingesting illegal drugs while on bail release.

         The superior court held an evidentiary hearing on Belknap's request for credit. At the evidentiary hearing, Belknap requested that counsel be appointed to assist him in litigating his motion. The superior court denied this request. The court also denied Belknap's request for a continuance, although the court allowed Belknap to submit additional materials after the hearing and the court also allowed Belknap to submit additional briefing.

         The superior court subsequently issued a written order rejecting the State's retroactivity argument and partially granting Belknap's motion for credit. The court concluded that Belknap was entitled to credit for the 62 days that he spent on bail release under the 24-hour GPS-based electronic monitoring program, because Belknap successfully completed that time on electronic monitoring without violating the conditions of his release or otherwise committing a new criminal offense. But the court concluded that Belknap was not entitled to any credit for the time he spent on the modified SCRAM-only monitoring program because the court found that this modified program was not sufficiently comprehensive or restrictive to qualify as "electronic monitoring" for purposes of AS 12.55.027(d). The court also noted that Belknap would apparently be ineligible for that credit based on the violations of the conditions of his release while on that modified program.

         Belknap filed a motion for reconsideration, arguing that the modified SCRAM-only monitoring program was sufficiently restrictive to be considered "electronic monitoring" under the statute because Belknap was subject to multiple random breath tests on a daily basis and those random breath tests also automatically recorded his GPS location. According to Belknap, there was no functional difference between the level of supervision provided by the original 24-hour GPS-based steel ankle cuff monitoring program and the subsequent modified monitoring program.

         The superior court rejected this claim and denied Belknap's motion for reconsideration. The court also noted that, even if the SCRAM-only program qualified as "electronic monitoring" under the statute, Belknap's illegal drug use while on that program would make him ineligible for any credit for the time he spent on bail release under that modified program.[6]

         Belknap, now represented by the Alaska Public Defender Agency, appeals the superior court's rulings, including the superior court's denial of his request ...


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