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Fox v. State

Court of Appeals of Alaska

February 1, 2019

WILSON WILLIAM FOX, Appellant,
v.
STATE OF ALASKA, Appellee.

          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         In 2013, Fox's parole was revoked based on his consumption of alcohol.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 ...


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