Opinion
Court of Appeals No. A-10191.
September 29, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-02-009 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
While Robert VanReenan was awaiting trial and sentencing on charges of felony driving under the influence and driving while his license was canceled, suspended, or revoked, he was released on bail to the third-party custody of his mother. Initially, the superior court ordered VanReenan to be in his mother's physical presence twenty-four hours per day, but the court later amended its order to allow VanReenan's boss to serve as his third-party custodian during work hours, and to let VanReenan travel to and from work. Later, the superior court exempted VanReenan from the requirement of a third-party custodian during work hours, although the court continued to restrict VanReenan's travel by requiring him to go directly between work and home.
The question presented in this appeal is whether VanReenan is entitled to Nygren credit — that is, credit against his sentence of imprisonment — for the days he spent on bail release.
See Nygren v. State, 658 P.2d 141, 144 (Alaska App. 1983).
VanReenan argues that, because he was required to be in the immediate presence of his third-party custodian at all times, his circumstances resembled the condition of someone who is in jail.
We have already pointed out that, although the superior court's initial bail order required VanReenan to remain constantly in his mother's physical presence, the court later relaxed this requirement to allow VanReenan to go to work without his mother. Moreover, even if VanReenan had been required to remain in the presence of his third-party custodian on a twenty-four-hour-per-day basis, this would not entitle him to Nygren credit.
In Matthew v. State, 152 P.3d 469, 472-73 (Alaska App. 2007), this Court held that a defendant who was released on electronic monitoring, and who was required to be either at home or at work twenty-four hours per day, was not entitled to Nygren credit. And in Ackermann v. State, 716 P.2d 5, 6 (Alaska App. 1986), this Court held that a defendant who was released to the custody of his fishing boat engineer was not entitled to Nygren credit. Specifically, in Ackermann we held that "a person in third-party custody who has the freedom to move about the community, limited only by his custodian's accompaniment, and one who is confined to [his] fishing boat while it is at sea [ i.e., while actively engaged in his employment] is not entitled to credit [against his sentence] for time spent on pretrial release." Ibid.
See also Fungchenpen v. State, 181 P.3d 1115, 1116 (Alaska App. 2008), where we held that a defendant who was released on electronic monitoring, and who was required to be in his wife's presence around the clock except when he was at work, was not entitled to Nygren credit.
Based on Matthew, Ackermann, and Fungchenpen, we conclude that even if VanReenan had been required to be in the presence of a third-party custodian around the clock, this would not entitle him to Nygren credit.
VanReenan notes that, in addition to the requirement of a third-party custodian, the superior court also ordered him not to drive. But VanReenan's driver's license had been taken away. This was the factual basis of the count charging him with driving with a canceled, suspended, or revoked license. Thus, when the superior court ordered VanReenan not to drive, this was merely a specific application of the court's more general directive that VanReenan obey the law while on bail release.
Finally, VanReenan asserts that the superior court committed procedural error by ruling on his request for Nygren credit without holding an evidentiary hearing. But a court need hold an evidentiary hearing only when material facts ( i.e., facts that would affect the court's ruling) are in dispute. Here, even if the conditions of VanReenan's release were as stringent as he asserts, he would not be entitled to Nygren credit.
Alaska Criminal Rule 42(e)(3). See Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001); Charles v. State, 232 P.3d 739, 742 (Alaska App. 2010).
We therefore AFFIRM the superior court's denial of VanReenan's request for Nygren credit against his sentence of imprisonment.