from the Superior Court, Third Judicial District, Anchorage,
Paul E. Olson, Judge. Trial Court No. 1KE-96-656 CR
Johnson (opening brief) and Emily Jura (reply brief),
Assistant Public Defenders, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Anchorage, under contract with the
Office of Criminal Appeals, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.[*]
1997, James Patrick Tanner pleaded guilty to two counts of
second-degree sexual abuse of a minor. He received a
composite sentence of 20 years' imprisonment with 10
years suspended, and he was placed on probation for 10 years
following his release from prison.
current appeal arises from the fact that the superior court
later revoked Tanner's probation, and Tanner was released
on bail pending his appeal of the superior court's
decision. When the superior court granted
Tanner's request to be released on bail, the court
imposed a requirement of electronic monitoring.
contract with the electronic monitoring company generally
required him to remain at home, but the contract listed
various exceptions to this requirement - various reasons why
Tanner would be allowed to leave his home. One of the listed
reasons was grocery shopping.
the parties discussed the terms of this contract with the
superior court, the court adopted the terms of the contract
as conditions of Tanner's bail release.
while Tanner was on bail release, the State again petitioned
the superior court to revoke Tanner's probation (for a
new violation). Following a hearing, the superior court found
that Tanner had, in fact, violated his probation. Based on
this new violation, the court imposed 90 days of Tanner's
previously suspended jail time.
later filed a motion seeking credit against this sentence for
the 212 days that he had spent on electronic monitoring.
statute that governed Tanner's credit for electronic
monitoring, AS 12.55.027(d), stated that a defendant could
receive this credit only if "the court imposes
restrictions on the [defendant's] freedom of movement and
behavior while under the electronic monitoring program",
and only if these restrictions include "requiring the
[defendant] to be confined to a residence except for a (1)
court appearance; (2) meeting with counsel; or (3) ...
employment, attending educational or vocational training,
performing community volunteer work, or attending a
rehabilitative activity or medical appointment."
superior court noted that, because the conditions of
Tanner's electronic monitoring allowed him to leave his
home to go grocery shopping, it appeared that Tanner's
electronic monitoring was not sufficiently restrictive to
meet the requirements of the statute. In response, Tanner
argued that grocery shopping was an essential activity, and
thus the statute should be construed to implicitly allow
defendants to leave their residence to go grocery shopping.
In the alternative, Tanner argued that grocery shopping
qualified as a "rehabilitative activity" under the
hearing argument on these matters, the superior court
ultimately rejected both of Tanner's arguments: the court
ruled that AS 12.55.027(d) did not contain an implicit
exception for grocery shopping, and the court ruled that
grocery shopping did not qualify as a "rehabilitative
activity" for purposes of AS 12.55.027(d). Thus, the
court concluded, ...