Appeal
from the Superior Court No. 4BE-13-273 CI, Fourth Judicial
District, Bethel, Charles W. Ray Jr, Judge.
Megan
M. Rowe, Denali Law Group, P.C., under contract with the
Office of Public Advocacy, Anchorage, for the Appellant.
John
K. Bodick, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
ALLARD
Judge.
Wilson
William Fox appeals the superior court's dismissal of his
application for post-conviction relief. Fox argues that the
superior court erred when it upheld the Alaska Parole
Board's decision to deny him 18 days of credit against
his sentence.[1] For the reasons explained here, we affirm
the superior court's ruling.
Background
facts and prior proceedings
In
1983, Wilson William Fox was convicted of second-degree
murder and sentenced to 60 years with 30 years suspended (30
years to serve) and 5 years' probation. In 2007, Fox was
released on mandatory parole. Approximately a year later, Fox
tested positive for marijuana on two separate occasions. The
two positive drug tests occurred less than a month apart. The
second time that Fox tested positive for marijuana, his
parole officer gave Fox the choice of either (1) residing at
the Tundra Center, a community residential center (CRC), or
(2) having the parole officer file a parole violation report
- in which case Fox would be arrested and he would face
possible revocation of his parole and additional
incarceration.
Fox
chose to live temporarily at the Tundra Center, although he
actively sought approval from his probation officer for
alternative housing. After about 18 days, Fox was allowed to
leave the Tundra Center to stay at his grandmother's
house.
Approximately
two years later, in 2010, Fox wrote to the parole board
requesting that he receive credit against his sentence for
the 18 days he spent at the Tundra Center. The parole board
did not respond to this request.
In
2013, Fox's parole was revoked based on his consumption
of alcohol. At the final parole hearing, the parole board
granted Fox a discretionary parole release subject to his
successful completion of a residential substance abuse
treatment program while he was incarcerated. The parole board
ultimately granted Fox credit against his sentence for time
he spent at various facilities, (including a different stint
at the Tundra Center), but the board denied Fox credit for
the 18 days at issue here.
Fox
filed an application for post-conviction relief in the
superior court, arguing, inter alia, that he was
entitled to these extra 18 days of credit under State v.
Shetters.[2] The State argued that Fox was not entitled
to this credit under Shetters because Fox had
voluntarily agreed to stay at the Tundra Center, and he had
not been placed there by order of the parole
board.[3] An evidentiary hearing was held, and both
parties moved for summary disposition on Fox's claim for
credit.
The
superior court subsequently issued an order affirming the
parole board's denial of Fox's request for credit. In
reaching this decision, the court relied on our prior
decision in State v. Fortuny.[4] In
Fortuny, we held that a defendant is not entitled to
Nygren credit for the time the defendant spent
voluntarily at a residential treatment program without a
court order placing the defendant in treatment.[5] We reasoned that,
without a court order requiring him to be there, the
defendant could not be considered to be subject to conditions
approximating incarceration for purposes of obtaining
Nygren credit because the defendant was free to
leave the treatment program at any time.[6]
In its
ruling in the present case, the superior court acknowledged
that there is a difference between a treatment program and a
CRC because a defendant cannot stay at a CRC without some
affirmative action by the court, the parole board, or a
parole or probation officer. But the court concluded that the
underlying reasoning of Fortuny still applied - that
a defendant who voluntarily chose to reside at the CRC was
not subject to conditions approximating incarceration for
purposes of obtaining Nygren or Shetters
credit. The court therefore ruled that Fox was not entitled
to Shetters credit for the 18 days he ...