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 ...