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Tanner v. State

Court of Appeals of Alaska

December 14, 2018

JAMES PATRICK TANNER, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Anchorage, Paul E. Olson, Judge. Trial Court No. 1KE-96-656 CR

          Lars 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.[*]

          OPINION

          MANNHEIMER, JUDGE.

         In 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.[1]

         The 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.[2] When the superior court granted Tanner's request to be released on bail, the court imposed a requirement of electronic monitoring.

         Tanner's 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.

         After 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.

         Later, 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.

         Tanner later filed a motion seeking credit against this sentence for the 212 days that he had spent on electronic monitoring.

         The 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."

         The 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 statute.

         After 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, ...


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