Edwin Montal Medina, Appellant, v. State of Alaska, Appellee. (2018)

Order

The State of Alaska seeks rehearing of our decision in this case, Medina v. State, __ P.3d __, 2018 WL 1124440 (Alaska App. Mar. 2, 2018). In its petition, the State raises three primary contentions: (1) Medina's cases were not “pending trial, sentencing, or appeal” while he was in residential treatment and thus, he is not entitled to credit under AS 12.55.025(c); (2) our interpretation of the word “offense” in AS 12.55.025(c) conflicts with the use of that word elsewhere in the statutes and in our case law; and (3) our decision impermissibly allows a probationer to “bank” credit for use against a sentence imposed on a future probation violation. We address each contention in turn.

The State's argument that Medina's cases were not “pending trial, sentencing, or appeal” at the time he resided in the treatment program

The State first contests our characterization of a claim it initially raised in the superior court in opposition to Medina's request for credit. In footnote 1 of our opinion, we noted that the State had originally argued that Medina's time in residential treatment was not served while “pending trial, sentencing, or appeal,” as required by AS 12.55.025(c) — but that the State had subsequently conceded this point.¹ The State argues that it did not concede this point.

We read the record differently than the State. The prosecutor filed two responses in the superior court contesting Medina's request for credit. In the first opposition, the prosecutor argued that Medina's cases were not “pending trial, sentencing, or appeal” while he was residing in the Salvation Army program — and that, as a result, Medina was not entitled to credit under AS 12.55.025(c). In the second, supplemental opposition, the prosecutor raised the only argument that it later pursued on appeal — that the time Medina spent in residential treatment in 2014 was not served “in connection with” the sentences the court imposed when it revoked Medina's probation in 2015.

We note that in the State's initial opposition, the prosecutor mistakenly stated that Medina violated his probation on December 17, 2014, after Medina had completed residential treatment. In fact, the record reflects a different procedural history: The State alleged that Medina violated his probation on May 20, 2014, and it filed petitions to revoke Medina's probation the following day. Medina then entered treatment on June 9, 2014, pursuant to the superior court's bail order, and Medina remained in the treatment program until December 10, 2014. December 17, 2014 is the date that the court resolved the 2014 petitions to revoke Medina's probation (i.e., the adjudication and disposition date) — not the date that Medina violated his probation.

Medina's attorney outlined the correct dates in his reply to the State's initial response.

At the subsequent oral argument in the superior court on Medina's motion, the prosecutor conceded that Medina's attorney had correctly recounted the procedural history, and the prosecutor then effectively abandoned the argument he had made in his initial opposition:

Prosecutor: [T]he State will concede that the procedural history that [defense counsel] outlined appears to be correct. And there was a misunderstanding beforehand. It looks like the defendant was ordered to go to rehab on a prior PTRP, and that was unclear to the State prior to the motion work. It has since become ․

Court: The issue from your perspective, then, is just whether he's entitled to get credit for some previous time on the newer petitions to revoke, essentially.

Prosecutor. Yes, Your Honor.

The prosecutor then presented argument exclusively on the issue raised in his supplemental opposition (and later, on appeal) — that the time Medina spent in residential treatment in 2014 was not served “in connection with” the sentences the court later imposed in 2015.

Accordingly, we conclude that the State did concede, as a factual matter, that Medina's cases were pending resolution of petitions to revoke at the time he resided in the residential treatment program. And we conclude that this concession is supported by the record. We therefore decline to amend footnote 1 of our opinion.

The State next raises a new argument: that our decision in Triplett v. State precludes the award of credit to Medina.² But Triplett does not govern this case. First, the State's argument hinges on the factual premise we have already rejected — that Medina's cases were not “pending trial, sentencing, or appeal” while he was in residential treatment, as required by AS 12.55.025(c). In Triplett, we held that, under AS 12.55.025(c), a defendant is not entitled to jail credit for time spent in residential treatment as a condition of probation when that time was not served “pending trial, sentencing, or appeal.”³ (See our description of the holding in Triplett in State v. Walker, 283 P.3d 668, 669-70 (Alaska App. 2012).)

In contrast, Medina did not spend time at the Salvation Army program as a condition of probation. Rather, Medina spent time at the Salvation Army as a condition of bail pending resolution of outstanding petitions to revoke his probation.

As the State itself recognizes later in its petition, Alaska case law treats probation revocation proceedings as sentencing hearings.⁴ Accordingly, Medina's cases were “pending sentencing” at the time he resided at the Salvation Army program.⁵ In Walker, we implicitly recognized that Triplett does not bar credit for time spent in residential treatment under these circumstances.⁶

Second, Triplett rested squarely on AS 12.55.025(c); we expressed no opinion on the application of AS 12.55.027, which was then a new statute governing the award of jail credit for time spent in treatment, since the new statute did not apply to Triplett's case.⁷ But AS 12.55.027 does apply to Medina's case. And AS 12.55.027(e) makes it clear that a defendant may apply for jail credit for time spent in a treatment program as a “condition of bail release after a petition to revoke probation has been filed.” Accordingly, we reject the State's argument regarding Triplett.

The State's challenges to our interpretation of the word “offense” in AS 12.55.025(c)

The State next argues that our interpretation of the word “offense” in AS 12.55.025(c) conflicts with the legislature's use of that term elsewhere in AS 12.55.025 and in other Alaska statutes. Specifically, the State contests our conclusion that “probation violations are not new ‘offenses,’ separate and independent from one another and from the underlying criminal conviction” but rather “relate back to the underlying criminal offense.”⁸

But the word “offense” can have different meanings, depending on the context.⁹ As we explained in our opinion, our interpretation of “offense” in the context of AS 12.55.025(c) finds support in long-standing case law and principles of due process and equity.¹⁰

The State raises a number of specific statutory comparisons. First, the State points to subsection (k) of AS 12.55.025. Alaska Statute 12.55.025(k) sets out a time frame within which a defendant must notify the court of a request for jail credit for time spent in a treatment program as a condition of bail “in connection with the offense for which the defendant is being sentenced” (generally, ten days before the sentencing hearing but in any event, absent good cause, no later than ninety days after the sentencing hearing). The State argues that our interpretation of the word “offense” in AS 12.55.025(c) necessarily means that the reference to “offense” in subsection (k) refers only to the underlying criminal offense and not to individual probation violations — an interpretation that the State contends would preclude requests for credit for time spent in residential treatment in connection with probation revocation proceedings, if the proceedings occur outside the timeline established in AS 12.55.025(k).

But the timeline for requesting credit for treatment served in connection with probation is set out in a different statute, AS 12.55.027(e). Alaska Statute 12.55.027(e) specifically establishes a time frame for notifying the court of a request for credit for time spent in treatment “either as a condition of probation or as a condition of bail release after a petition to revoke probation has been filed[.]” Our interpretation of “offense” in subsection (c) is therefore consistent with the meaning of that term in subsection (k).

Second, the State contends, in a single sentence, that its position — that the underlying conviction and the related probation violations are separate “offenses” — is supported by the legislature's addition of the following italicized language to AS 12.55.025(c): “A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed including a technical violation of probation as provided in AS 12.55.110.” This language was added in 2016 and was effective on January 1, 2017, after the conclusion of the appellate briefing in this case.¹¹ The State does not explain why the addition of this language supports its position. We therefore reject this claim.

In any event, we interpret this language as simply clarifying that a defendant is entitled to jail credit for the (often short) terms of incarceration specified in AS 12.55.110, even if the defendant has already completely served this term prior to the actual imposition of sentence under AS 12.55.110(c).¹² The State has provided no basis for concluding that the legislature intended, through the addition of this limited language, to effect a wholesale change to AS 12.55.025(c) or to revise long-standing case law regarding the relationship between the underlying criminal offense and probation revocation proceedings.¹³

Third, the State points to AS 11.81.900(b)(40), which defines “offense” for purposes of the statutes in Title 11 as “conduct for which a sentence of imprisonment or fine is authorized; an offense is either a crime or a violation.” The State puts much stock in the inclusion of the word “violation” in the definition of “offense,” suggesting that it includes probation violations. But this argument overlooks the fact that the term “violation” is separately defined in AS 11.81.900 as “a noncriminal offense punishable only by a fine, but not by imprisonment or other penalty [.]”¹⁴ This further underscores the point we made earlier: terms can be defined differently in different contexts.

The State's remaining claims

Finally, the State reiterates its argument that our decision would allow probationers to improperly “bank” a line of credit. But for the reasons explained in our opinion, we reject this claim. The State argues that we did not meaningfully distinguish our earlier decisions in Triplett, Marker v. State,¹⁵ and State v. Berumen,¹⁶ But none of those cases are factually similar to Medina's.

We reject the comparison to Triplett for the reasons we have already explained. We similarly reject any comparison to Marker. In Marker, we affirmed the denial of a defendant's request to credit excess jail time served on one case against the sentence imposed in a later case for an unrelated crime subsequently committed by Marker.¹⁷ Here, Medina sought jail credit against a sentence imposed in the same cases for which he had previously served time in treatment.

And with respect to Berumen, an unpublished case, we note that the State relies exclusively on the dissenting opinion. The majority opinion is contrary to the State's claim.¹⁸

Conclusion

For all these reasons, we adhere to the conclusion in our original opinion. Accordingly, the State of Alaska's petition for rehearing is DENIED.

Entered at the direction of the Court.

Clerk of the Appellate Courts

Ryan Montgomery-Sythe, Deputy Clerk

FOOTNOTES

1.   See Medina, __ P.3d __, 2018 WL 1124440, at * 1 n.l.

2.   Triplett v. State, 199 P.3d 1179 (Alaska App. 2008).

3.   Id. at 1181.

4.   See Gilligan v. State, 560 P.2d 17, 19 (Alaska 1977) (holding that a term of imprisonment imposed at a probation disposition hearing is a “sentence of imprisonment lawfully imposed” within the meaning of the statutes providing for sentence review); Hernandez v. State, 691 P.2d 287, 291 (Alaska App. 1984) (recognizing, based on Gilligan, that imposition of a previously suspended sentence constitutes a “sentence” and holding that, prior to imposing sentence at a probation revocation hearing, the trial court should obtain an updated presentence report and consider all the Chaney criteria); see also DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997) (recognizing that when a court revokes a defendant's probation, the court must consider all currently available information in light of the Chaney criteria, and “[t]he court's sentence must be based on the totality of the circumstances”); Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988) (holding that when a defendant rejects probation, the court “must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the information at the initial sentencing”),

5.   In fact, Medina's cases were also “pending trial” — i.e., adjudication.

6.   See State v. Walker, 283 P.3d 668, 673 (Alaska App. 2012). We vacated the award of credit in Walker on different grounds — our concern that Walker had already received the credit against a different case.

7.   Triplett, 199 P.3d at 1181.

8.   Medina, 2018 WL 1124440, at *3.

9.   Cf. Bridge v. State, 258 P.3d 923, 930 (Alaska App. 2011) (noting that the definition of “confinement” for purposes of the second-degree escape statute does not necessarily govern the meaning of this term for other purposes “because it is possible for the same word or phrase to have different meanings in different contexts”); Kelly v. State, 663 P.2d 967, 971 (Alaska App. 1983) (noting that the word “conviction” can have different meanings depending on the context).

10.   See Medina, 2018 WL 1124440, at * 3.

11.   SLA 2016, ch. 36, §§ 67,190. This new language applies to sentences imposed on or after January 1, 2017 for conduct occurring before, on, or after that date. Id. at §§ 185(d), 190.

12.   We note that under AS 12.30.055(b), a person who is in custody for a technical violation of probation under AS 12.55.110 must be released after serving the maximum number of days that the court could impose under AS 12.55.110.

13.   See Gilligan, 560 P.2d at 19 (“Although a probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial and proof beyond a reasonable doubt are required, it is necessarily an outgrowth of the initial criminal case.”).

14.   AS 11.81.900(b)(65) (emphasis added).

15.   Marker v. State, 829 P.2d 1191 (Alaska App. 1992).

16.   State v. Berumen, 2011 WL 3631134 (Alaska App. Aug. 17, 2011) (unpublished).

17.   Marker, 829 P.2d at 1193-95.

18.   Berumen, 2011 WL 3631134, at * 1-2 (holding that trial court properly credited time served in connection with an invalidated sentence against remaining suspended time on defendant's second case for which he had been sentenced simultaneously, noting that such credit did not involve improper banking of time).