Vandergriff
v.
State

This case is not covered by Casetext's citator
COURT OF APPEALS OF THE STATE OF ALASKADec 11, 2013
Court of Appeals No. A-11225 (Alaska Ct. App. Dec. 11, 2013)

Court of Appeals No. A-11225 Trial Court No. 3KN-11-878 CI No. 6001

12-11-2013

DARREL W. VANDERGRIFF, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Darrel W. Vandergriff, in propria persona, Hudson, Colorado, for the Appellant. Matthias Cicotte, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.


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 authority for any proposition of law.

MEMORANDUM OPINION

Appeal from the Superior Court, Third Judicial District, Kenai, Carl Bauman, Judge.

Appearances: Darrel W. Vandergriff, in propria persona, Hudson, Colorado, for the Appellant. Matthias Cicotte, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .

Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

Judge MANNHEIMER.

In 2011, Darrel W. Vandergriff was arrested for driving under the influence. Because he had two prior DUI convictions, Vandergriff was charged with a felony under AS 28.35.030(n). Vandergriff ultimately pleaded guilty to this charge, and he received a sentence of 3 years to serve. In addition, the court revoked Vandergriff's probation from several prior misdemeanor convictions, and he was ordered to serve an additional 390 days of previously suspended jail time.

The Department of Corrections calculated Vandergriff's composite sentence as equal to 1486 days, and calculated his anticipated release date — i.e., the date on which Vandergriff's good time credit would equal the time remaining to be served on his sentence — as September 22, 2013.

The current litigation involves the question of Vandergriff's legal status when his release date arrives.

Under the provisions of AS 33.20.040(a), when a defendant's good time credit equals the time remaining to be served in their sentence, one of two things will happen. If the defendant received a composite sentence of less than 2 years, the defendant will be released unconditionally. But if the defendant received a composite sentence of 2 years or more, the defendant will be released on mandatory parole. This means that the defendant will be supervised by a parole officer, the defendant will have to abide by conditions of parole, and, if the defendant violates the conditions of parole, the defendant will potentially have to serve some or all of the remaining portion of their sentence. See AS 33.16.220(i).

As we have explained, Vandergriff's composite sentence exceeded 4 years to serve. Because of this, he ostensibly would be released on mandatory parole, pursuant to AS 33.20.040(a) when his release date arrived. But Vandergriff filed a petition for writ of habeas corpus, challenging the constitutionality of AS 33.20.040(a) under various theories.

The superior court concluded that the statute was constitutional, and the court therefore denied Vandergriff's petition. Vandergriff now appeals the superior court's decision.

The arguments that Vandergriff raised in the superior court

In his petition for writ of habeas corpus, Vandergriff argued that he had a protected liberty interest in his good time credit, and that this liberty interest would be violated if the Department of Corrections failed to release him unconditionally when his good time credit equaled the amount of time remaining to be served on his sentence.

Vandergriff further argued that if he was released on mandatory parole and his parole was later revoked (and he was ordered to serve some or all of the remaining portion of his sentence), this would constitute an unlawful increase in his sentence, in violation of the double jeopardy clause.

This Court's decision in Hill v. State, 22 P.3d 24 (Alaska App. 2001), provides the answer to most aspects of Vandergriff's claims.

Like Vandergriff, the defendant in Hill argued that once his good time credit equaled the time remaining to be served on his sentence, he was entitled to unconditional discharge, and it was unlawful to subject him to mandatory parole. Id. at 25-26. We rejected this argument. Id. at 26-27.

The defendant in Hill also argued that once his good time credit "vested", it was unlawful for the Parole Board to revoke his parole and order him to serve more of his sentence. Id. at 27. We rejected this argument as well. Id. at 27-28.

Finally, the defendant in Hill argued that if the Parole Board revoked his mandatory parole and ordered him to serve some or all of his remaining sentence, this would constitute an unlawful increase in his sentence, in contravention of the double jeopardy clause. Id. at 28. We rejected this argument too. Id. at 28-29.

In his brief to this Court, Vandergriff asks us to re-examine and overrule our decision in Hill. But Vandergriff has failed to demonstrate that our legal analysis in Hill was clearly wrong.

Vandergriff also attacks Hill as bad policy: he argues that the mandatory parole law that we upheld in Hill has resulted in an overcrowded prison and parole system. We do not know whether Vandergriff's assertion is true — but even assuming that Vandergriff's assertion is true, this Court is not empowered to strike down the mandatory parole law on the ground that it might be bad policy. Vandergriff's policy arguments must be addressed to the legislature, not the judiciary.

Vandergriff also presented two other claims to the superior court that are not answered by our decision in Hill.

First, Vandergriff argues that even if it might be constitutional to place defendants on mandatory parole when their good time credit equaled the remainder of their sentence, AS 33.20.040(a) nevertheless denies him the equal protection of the law because (according to Vandergriff) there is no rational basis for the distinction drawn in the statute between (1) defendants who receive a composite sentence of less than 2 years to serve and (2) defendants who receive a composite sentence of 2 years or more.

Under the original version of AS 33.20.040(a) (i.e., the version enacted in 1960, shortly after Alaska became a state), the question of whether a defendant would be released unconditionally or released on mandatory parole did not hinge on the length of the defendant's composite sentence. Rather, it hinged on the amount of time remaining in the defendant's sentence when their release date arrived. Defendants who had more than 180 days remaining in their sentence were released on mandatory parole; all other defendants were unconditionally discharged.

SLA 1960, ch. 107, § 4.
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But in 1985, the Alaska Legislature enacted a comprehensive revision of the parole laws. See SLA 1985, ch. 88. One portion of this 1985 session law (section 3) re-wrote AS 33.20.040(a) so that a defendant's status upon release now hinged on the length of their original sentence rather than the amount of time remaining in their sentence when their release date arrived.

The Legislature published a sectional analysis of the 1985 session law — see 1985 House Journal, Supplement 42 (April 4th) — but the "analysis" of the new version of AS 33.20.040(a) is hardly enlightening. It reads (in its entirety): "Section 3 [of this bill] amends existing good time release provisions to conform with the concept of a mandatory parole." 1985 House Journal, Supplement 42, page 7.

But even though this sectional analysis may not explain the Legislature's new approach to the question of parole release versus unconditional release, there is at least one apparent rationale for the change. The Legislature could reasonably anticipate that defendants whose composite sentence equals or exceeds 2 years to serve will have committed either a more serious crime, or a greater number of crimes, than defendants whose composite sentence is less than 2 years — and thus, the legislature could reasonably conclude that, generally speaking, there is a greater need to have these defendants placed under parole supervision when they are released from prison.

For this reason, we conclude that AS 33.20.040(a) does not violate the equal protection clause.

Vandergriff's other argument is that the Parole Board has no authority (no "jurisdiction") to take away a defendant's good time credit once a prison warden has "certified" this good time credit under AS 33.20.030 and has ordered the defendant's release from prison based on this good time credit. The answer to Vandergriff's argument is found in three provisions of AS 33.16 and AS 33.20.

AS 33.20.040(a) declares that, for defendants whose composite sentence was 2 years or more, a defendant who is entitled to release from prison because of good time credit "shall be released on mandatory parole to the custody and jurisdiction of the parole board under AS 33.16".

Under the provisions of AS 33.16, the Parole Board is expressly authorized to revoke a defendant's mandatory parole release. Specifically, the Board is authorized by AS 33.16.150(a), (b), and (f) to place conditions on a defendant's mandatory parole, and the Board is authorized by AS 33.16.220(i) to revoke the mandatory parole, in whole or in part, if the defendant violates the conditions of their parole or if the defendant violates any law or ordinance.

For these reasons, we reject Vandergriff's contention that the Parole Board has no authority to revoke a defendant's release from prison based on good time credit.

Vandergriff's new arguments raised for the first time on appeal

In his brief to this Court, Vandergriff raises other claims that he did not present to the superior court. These claims are not preserved for appeal.

Conclusion

The judgement of the superior court is AFFIRMED.