STATE OF ALASKA v. NORMAN LOTT (2011)

NOTICE Memorandum decisions of this court do not create legal precedent.  See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3).  Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Norman A. Lott was convicted of felony driving under the influence on January 10, 2005.   Superior Court Judge Patricia A. Collins sentenced Lott to twenty months, with sixteen months suspended.   She placed Lott on probation for a period of four years.   On November 15, 2005, while he was on probation for driving under the influence, Lott was convicted of felony refusal to take a breath test.   Judge Collins imposed a sentence of thirty-six months with twelve months suspended.   She placed Lott on probation for five years for the felony refusal conviction.   She also extended Lott's probation on the felony driving under the influence conviction for six months and, as a special condition of probation, stated that he “may be required” to spend six months in a residential treatment center.

Following this second sentencing, Lott violated his probation on two occasions.   Judge Collins extended Lott's probation by six more months and again modified his conditions of probation to allow him to be placed in residential treatment.

When Lott again violated his probation in July of 2009, he decided to refuse further probation.   Judge Collins sentenced Lott to a composite sentence of twenty months of imprisonment.   She directed the Department of Corrections to give Lott credit for the time he spent in residential treatment.

The State now appeals, arguing that Judge Collins had no authority to give Lott credit for the time he spent in residential treatment as a condition of his probation.   For the reasons that follow, we conclude that this issue is moot.

In State v. Henry,¹ we summarized the law that applies when a defendant decides to reject probation:

A defendant who concludes that the conditions of probation are too onerous has the right to terminate the probation and ask the sentencing judge to impose an active term of imprisonment in lieu of further probation.   If the defendant exercises this option, the sentencing judge must not automatically sentence the defendant to all of the remaining suspended jail time;  rather, the judge must apply the Chaney sentencing criteria to determine an appropriate term of imprisonment.²

In other words, after Lott refused further probation, Judge Collins had to employ the Chaney sentencing criteria and decide how much additional time Lott should serve in prison.   Any portion of Lott's sentences that Judge Collins failed to impose at that time would simply disappear—because there can be no suspended term of imprisonment without a corresponding term of probation,³ and because Lott refused further probation.

Judge Collins decided to sentence Lott to a total of twenty months' imprisonment—sixteen months of his remaining suspended term of imprisonment for the felony DUI, and four months of his remaining suspended term of imprisonment for the felony breath test refusal.   Judge Collins chose this composite sentence of twenty months under the assumption that Lott was entitled to approximately four months of credit for the time he spent in residential treatment as a condition of probation.

But even if Judge Collins was mistaken in thinking that she could credit Lott with this time, it is clear that Judge Collins's underlying intent was for Lott to spend an additional specific amount of time in prison, counting from the date of Lott's final sentencing.

If, in fact, Lott is not entitled to credit against his sentence for the time he spent in residential treatment as a condition of probation (an issue that we do not decide), Judge Collins could nevertheless take that disputed four months of residential treatment into account when she exercised her sentencing discretion and decided how much additional time Lott should serve, now that his probation was ending.   In other words, even if Lott was technically not entitled to credit for time served for his four months in residential treatment, Judge Collins had the discretion to order Lott to serve a specific amount of time, and the judge could properly decide to impose the lower sentence based on the fact that Lott had already spent a substantial period of time in residential treatment (even if Lott was not legally entitled to a day-for-day credit for this residential treatment).

For these reasons, the question of whether Lott was entitled to credit for time served for each day he spent in residential treatment is moot.

Accordingly, this appeal is DISMISSED AS MOOT.

FOOTNOTES

FN1. 240 P.3d 846 (Alaska App.2010)..  FN1. 240 P.3d 846 (Alaska App.2010).

FN2. Id. at 848–49 (footnotes omitted)..  FN2. Id. at 848–49 (footnotes omitted).

FN3. See Figueroa v. State, 689 P.2d 512, 514 (Alaska App.1984)..  FN3. See Figueroa v. State, 689 P.2d 512, 514 (Alaska App.1984).

COATS, Chief Judge.