Opinion
Court of Appeals No. A-9709.
October 31, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-06-5147 Civ.
Marcus Gene Arnett, in propria persona, Anchorage, for the Appellant. John K. Bodick, Assistant Attorney General, Criminal Division Central Office, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In this appeal, Marcus Gene Arnett challenges the State of Alaska's calculation of the date that Arnett will be released from parole supervision and the date that he will be released from probation supervision. For the reasons explained here, we conclude that the State has correctly calculated these two dates.
Arnett also challenges the condition of his parole that requires him to engage in sex offender therapy. Arnett argues that this condition violates his right against self-incrimination because, during the therapy, he will be required to engage in discussions about acts of sexual abuse — discussions that might tend to incriminate him. For the reasons explained here, we conclude that Arnett will not be required to incriminate himself during the therapy, and thus the Parole Board could properly place this condition on Arnett's parole.
Underlying facts, and a synopsis of our decision in Arnett's last appeal
In 1989, Arnett was indicted for engaging in various acts of sexual penetration with his stepdaughter. Arnett fled Alaska in the middle of his trial. The trial proceeded without him, and Arnett was convicted of three counts of first-degree sexual abuse of a minor. Later, Arnett was apprehended and was brought back to Alaska for sentencing. In December 1990, Arnett received a composite term of 15 years' imprisonment (specifically, 16 years with 1 year suspended) for his acts of sexual abuse. The superior court's judgement required Arnett to spend 5 years on probation following his release from prison.
See Arnett v. State, Alaska App. Memorandum Opinion No. 4948 (November 24, 2004), 2004 WL 2676382 at *1.
In addition, Arnett was convicted of the separate offense of failure to appear at his felony trial. For this offense, he received a consecutive 1½ years to serve. Thus, Arnett's total sentence was 16½ years to serve.
Id.
On July 2, 2001, Arnett's good-time credit of 2,009 days ( see AS 33.20.-010(a)) equaled his remaining time to serve, so he was released on mandatory parole pursuant to AS 33.20.030 — 040(a). And, as specified by AS 33.20.040(c), Arnett began concurrent service of his 5-year term of probation at the same time.
Id. at *2.
If nothing further had happened, Arnett would have completed his mandatory parole supervision 2,009 days after his release ( i.e., on January 1, 2007), and he would have completed his probation five years after his release ( i.e., on July 2, 2006). However, as explained here, Arnett violated the conditions of his parole, and the Parole Board ordered him returned to prison.
Arnett was initially released to interstate supervision by Georgia correctional authorities, but toward the end of the year he was allowed to transfer his supervision to Kentucky.
Id.
One of the conditions of Arnett's parole (Condition No. 25) required him to participate in sex offender therapy. In addition, another condition of Arnett's parole (Condition No. 17) required him to abide by any supplemental conditions imposed by the correctional authorities of any other state to which his parole supervision was transferred. The Kentucky authorities likewise required Arnett to participate in (and complete) a sex offender treatment program.
Id.
Toward the end of March 2002, the Kentucky authorities notified the Alaska Parole Board that Arnett had been terminated from sex offender treatment because he "steadfastly declined and . . . refused" to admit that he had engaged in sexual offenses. (The therapy program required all participants to acknowledge their offenses.) Based on this apparent violation of Conditions 25 and 17, the Parole Board issued a warrant for Arnett's arrest, and Arnett was returned to Alaska for a parole revocation hearing.
Id.
While that revocation hearing was pending, Arnett's Alaska parole officer discovered that, while Arnett was living in Kentucky, he repeatedly visited a children's day care facility without permission from his parole officer — another apparent violation of his conditions of parole. (One of the supplemental conditions of parole imposed on Arnett by the Kentucky correctional authorities (Kentucky Condition No. 8) directed him "not [to] reside near, visit[,] or be in or about parks, schools, day care centers, swimming pools, beaches, theaters, or other places where children congregate without advance approval of [his] Probation or Parole Officer.")
Id. at *3.
At the ensuing parole revocation hearing, Arnett conceded that he had failed to complete sex offender treatment, but he contended that he was being asked to admit offenses that he had not committed. In particular, Arnett disputed certain information in his pre-sentence report (the report that the treatment coordinator was relying on for the facts of Arnett's offenses). Arnett disputed the pre-sentence report's statements concerning the dates of his offenses, the age of his victim during those offenses, and whether Arnett used force against the victim.
Id.
With regard to the allegation that Arnett repeatedly visited a day care center, Arnett claimed that his girlfriend worked at the day care center, and that his Kentucky parole officer had given him permission to pick up his girlfriend at her place of work. However, the Parole Board heard evidence that (1) Arnett never told his Kentucky parole officer that his girlfriend worked at a day care center, and (2) the Kentucky parole officer never would have given Arnett permission to pick up his girlfriend from work if the officer had known that Arnett's girlfriend worked at a day care center.
Id.
The Parole Board found that Arnett had violated his parole in both regards. That is, the Board found that Arnett had violated the conditions requiring participation in sex offender treatment, and that he had violated the conditions prohibiting him from visiting a child care facility without the permission of his parole officer.
Id.
Arnett filed a petition for post-conviction relief in which he challenged both of the Board's grounds for revoking his parole. After the superior court denied this petition, Arnett appealed to this Court.
Id. at *5.
Based on our then-recent decision in James v. State, 75 P.3d 1065 (Alaska App. 2003), we concluded that Arnett was potentially entitled to relief to the extent that the Parole Board had revoked his parole for refusing to discuss his sex offenses during sex offender therapy. In James, we held that probationers who are ordered to engage in sex offender treatment have a Fifth Amendment right to refrain from discussing the offenses for which they were convicted if (1) they are currently pursuing a collateral attack on their convictions, or if (2) they testified at their trial that they did not commit the acts for which they were charged (and would therefore potentially face perjury charges if they admitted that their denials had been false). Id. at 1072.
Because James was newly decided at the time that Arnett's post-conviction relief appeal came to this Court, we vacated the superior court's ruling on this issue and directed the superior court to re-assess the propriety of the Parole Board's action in light of James.
Id. at *5-6.
However, with respect to Arnett's unauthorized visits to the day care center, we affirmed the superior court's denial of post-conviction relief. We ruled that the Parole Board had heard sufficient admissible evidence to justify the conclusion that Arnett had violated the conditions of his parole in this regard. We further concluded that, given Arnett's conduct, the Parole Board could justifiably revoke both Arnett's parole from his sexual abuse convictions and Arnett's parole from his failure to appear conviction. The new expiration dates for Arnett's parole and probation supervision, and Arnett's challenge to these new dates
Id. at *6-7.
The Parole Board's decision to revoke Arnett's parole meant that Arnett was sent back to prison to finish serving his sentences. (As explained above, Arnett had 2,009 days remaining to serve.) Although Arnett lost all of the good-time credit that he had before his parole release, he received fresh good-time credit equal to one-third of his remaining 2,009-day sentence — i.e., 670 days.
On January 30, 2006, Arnett's good-time credit of 670 days once more equaled his remaining time to serve, so he was again released on mandatory parole pursuant to AS 33.20.030 — 040(a). And, pursuant to AS 33.20.040(c), Arnett again began concurrent service of his 5-year term of probation at the same time.
The Department of Corrections and the Parole Board have calculated that Arnett's mandatory parole supervision will end on December 1, 2007 — that is, after he has served 670 days on parole (starting from his parole release date of January 30, 2006).
In addition, the Department of Corrections has calculated that Arnett's term of probation will now end on March 17, 2010. This date was calculated by taking Arnett's release date of January 30, 2006, adding five years (the original term of probation ordered by the superior court), but then giving Arnett credit for the 318 days that he spent on probation before he was arrested in connection with the parole revocation proceedings.
In his current petition for post-conviction relief, and now in this appeal, Arnett asserts that he was entitled to be released from parole supervision and probation supervision on the dates that were originally calculated when he was first released from prison at the beginning of July 2001. That is, Arnett claims that his parole supervision should have expired on January 1, 2007, and that his probation should have expired on July 2, 2006.
Arnett's briefing of this claim is somewhat difficult to follow, but it appears that he is presenting two main arguments.
First, Arnett argues that the Parole Board acted improperly when they revoked his parole. Arnett presented this claim in his previous appeal, and we upheld the Parole Board's action in Arnett v. State, Alaska App. Memorandum Opinion No. 4948 (November 24, 2004), 2004 WL 2676382. Arnett is not permitted to relitigate this issue.
Second, Arnett argues that even if his parole was properly revoked, the extension of his parole and probation expiration dates violates the guarantee against double jeopardy, in that it constitutes an increase in his sentence after the fact. This is not correct. In State v. Merry, 784 P.2d 253, 256 n. 2 (Alaska App. 1989), and again in Hill v. State, 22 P.3d 24, 28-29 (Alaska App. 2001), we specifically held that a defendant's sentence is not increased for double jeopardy purposes when the defendant's parole is revoked, even though the defendant receives no credit against their sentence for the time spent on parole. In Reyes v. State, 978 P.2d 635, 639 (Alaska App. 1999), we reached the same conclusion with regard to the revocation of a defendant's probation.
See also Dulier v. State, 789 P.2d 372, 373-74 (Alaska App. 1990) (holding that a defendant whose parole is revoked is not entitled to credit against their sentence for the time they spent on parole before the revocation), and Paul v. State, 560 P.2d 754, 757-58 (Alaska 1977) (holding that a defendant whose probation is revoked is not entitled to credit against their sentence for the time they spent on probation before the revocation).
(To the extent that Arnett may be making any other argument on this issue, we conclude that his briefing is inadequate to preserve the argument.)
For these reasons, we conclude that the State has correctly calculated the date of Arnett's release from parole supervision and the date of his release from probation supervision.
The condition of parole that requires Arnett to engage in sex offender therapy
As noted above, this Court held in James v. State, 75 P.3d 1065, 1072 (Alaska App. 2003), that probationers not only have a Fifth Amendment right to decline to discuss matters that might incriminate them with respect to new offenses, but also a Fifth Amendment right to decline to discuss the offenses of which they have already been convicted if (1) they are currently pursuing a collateral attack on their convictions, or if (2) they testified at their trial that they did not commit the acts for which they were charged (and therefore would potentially face perjury charges if they admitted that their denials had been false). We assume, for purposes of the present case, that parolees (such as Arnett) have this same Fifth Amendment right.
As explained above, the Parole Board ordered Arnett to engage in sex offender therapy as a condition of his parole. But after our decision of Arnett's previous appeal, and based on our decision in James and the fact that Arnett was pursuing various state appeals and federal collateral attacks on his convictions, the State apparently declined to enforce this parole condition against Arnett.
Arnett's attacks on his convictions have now come to an end — with the United States Supreme Court's denial of certiorari in Arnett v. Antrim, ___ U.S. ___, 127 S.Ct. 1299 (2007). Accordingly, the State now wishes to enforce Arnett's condition of parole that requires sex offender therapy.
When Superior Court Judge Patrick J. McKay ruled on this issue in Arnett's current petition for post-conviction relief, the judge acknowledged that Arnett had a right to refuse to discuss specific actions or events that would tend to incriminate him with respect to crimes that have not yet been charged, if those crimes are not time-barred. At the same time, however, Judge McKay upheld the challenged condition of parole — because he concluded that, even with this Fifth Amendment restriction, "meaningful sexual offender evaluation and treatment can occur".
On appeal, Arnett contends that the parole condition should be struck down in its entirety. Arnett claims that if he engages in sex offender treatment, he will be forced to make statements about the offenses for which he has already been convicted in Alaska, and he will also be forced to make statements that could lead to his prosecution for sex offenses in other states or in Canada (through which Arnett apparently traveled on his way between Alaska and the Lower 48).
Arnett no longer has a Fifth Amendment right to refuse to make statements about the offenses of which he has already been convicted in Alaska — because those statements can not lead to any additional criminal liability. As we noted above, all of Arnett's attacks on those convictions have been resolved against him. Thus, there is no realistic risk that the statements Arnett makes about those offenses during therapy could be used against him in a renewed prosecution of those offenses.
With regard to the statements that Arnett might make about crimes that have not yet been charged (either in Alaska or in other jurisdictions), Judge McKay's order explicitly acknowledges that Arnett has the right to refrain from making statements that could lead to his prosecution for any uncharged crime that could still be prosecuted under the pertinent statute of limitation. The judge's order does not purport to be limited to crimes that could be prosecuted by the State of Alaska; rather, the order appears to apply to crimes that could be prosecuted by any jurisdiction.
The State (in its brief to this Court) agrees that this is how Judge McKay's order should be read. Thus, neither the superior court nor the State construes Arnett's parole condition as requiring him to incriminate himself with respect to crimes that might still be prosecuted in Alaska or in other jurisdictions.
Arnett also appears to claim that even if he is only asked to discuss the offenses for which he has already been convicted in Alaska, he runs the risk of self-incrimination because he took the stand at his trial and denied that he had committed these offenses. That is, Arnett suggests that he could be prosecuted for perjury if he now admits committing these offenses.
But as the State points out, AS 12.10.010(b)(2) declares that there is a five-year limitation on prosecutions for perjury. Arnett's trial took place approximately eighteen years ago. Thus, even if the State could potentially prove that Arnett committed perjury at his trial, Arnett no longer faces criminal liability for this conduct.
In sum, we conclude that Arnett's Fifth Amendment rights are adequately protected by the superior court's ruling in this case. Conclusion
For the reasons explained here, the judgement of the superior court is AFFIRMED.