Opinion
Court of Appeals Nos. A-8259 A-8609.
November 24, 2004.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley and Mark A. Rindner, Judges, Trial Court Nos. 3AN-01-4748 Civ and 3AN-02-12895 Civ.
Linda K. Wilson, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John K. Bodick, Assistant Attorney General, Criminal Division Central Office, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Marcus Gene Arnett appeals the superior court's summary dismissal of his two petitions for post-conviction relief; these two petitions stemmed from the Alaska Parole Board's decision to revoke his parole. As we explain in this opinion, the Parole Board revoked Arnett's parole based, in part, on Arnett's refusal to participate in sex offender therapy. However, it appears that Arnett may have had a Fifth Amendment privilege to decline to discuss his offenses (unless he received immunity for his disclosures). We therefore reverse the superior court's summary dismissals of Arnett's petitions for post-conviction relief on this point, and we remand Arnett's case to the superior court for further proceedings on those petitions.
Underlying facts: history of Arnett's case prior to his two current petitions for post-conviction relief
The underlying procedural history of Arnett's case is set forth in Arnett v. State, Alaska App. Memorandum Opinion No. 4223 (May 31, 2000), 2000 WL 699639:
In 1989, Arnett was convicted of three counts of first-degree sexual abuse of a minor for engaging in sexual penetration with his stepdaughter. (Arnett fled Alaska in the middle of his trial. The trial proceeded without him, and Arnett was convicted.) Later, Arnett was apprehended and was brought back to Alaska for sentencing. Arnett received a composite term of 15 years' imprisonment for his acts of sexual abuse. 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.
Arnett then filed separate appeals of his sexual abuse of a minor convictions and his sentence for failure to appear. This Court rejected all of Arnett's claims and affirmed the judgements of the superior court. See Arnett v. State, Alaska App. Memorandum Opinion No. 2710 (May 26, 1993) (Arnett's appeal of his sexual abuse of a minor convictions), and Arnett v. State, Alaska App. Memorandum Opinion No. 2480 (July 29, 1992) (Arnett's appeal of his sentence for failure to appear).
Following our affirmance of the superior court's judgements, Arnett filed a petition for post-conviction relief alleging that he had received ineffective assistance of counsel from his trial attorney. The superior court denied relief, and we affirmed the superior court's decision. See Arnett v. State, 938 P.2d 1079 (Alaska App. 1997).
Several months after we affirmed the superior court's dismissal of this first petition for post-conviction relief, Arnett filed a second petition for post-conviction relief. The superior court denied relief, and we again affirmed. See Arnett v. State, Alaska App. Memorandum Opinion No. 4223 (May 31, 2000), 2000 WL 699339. As we explained, "almost all of Arnett's claims [were barred because they] either were litigated in his direct appeal, [or] were raised in his first petition for post-conviction relief, or could have been raised in that first petition." And with respect to Arnett's remaining claims, we concluded that these were barred by AS 12.72.020(a)(6), the statute which, in most instances, limits a defendant to one petition for post-conviction relief.
Id. at 6-7, 2000 WL 699639 at *3.
Id. at 8-10, 2000 WL 699639 at *3-4.
(Arnett's current two petitions for post-conviction relief are not barred by this statute because these petitions arise from decisions of the Parole Board that could not have been challenged in Arnett's previous petitions. See AS 12.72.020(c).)
Underlying facts: Arnett's current petitions for post-conviction relief
In August 1998, in anticipation of Arnett's scheduled release on mandatory parole, the Alaska Parole Board issued a set of proposed conditions of parole that Arnett would be obliged to follow when he was released. Arnett appealed eleven of these parole conditions. The Parole Board considered Arnett's objections and, in response, withdrew several proposed conditions relating to alcoholism/substance abuse monitoring and treatment, leaving only the requirement that Arnett "[not drink] intoxicating liquor to excess". However, in all other respects, the Board affirmed the conditions of Arnett's parole.
See AS 33.20.010-040.
The Board notified Arnett of its decision in a letter dated October 15, 1998. Six days later (on October 21, 1998), Arnett sent a letter to the Board asking for clarification of the "no intoxicating liquor to excess" condition, and also advancing several legal arguments attacking the Board's authority to impose conditions of parole. The Board responded several months later, in a letter dated April 28, 1999. In this letter, the Board explained the "intoxicating liquor" provision and re-affirmed its authority to impose the other conditions of parole.
However, the Board did not formally issue the revised set of Arnett's parole conditions ( i.e., the original conditions minus the ones relating to alcoholism/substance abuse monitoring and treatment) until January 23, 2001. Two weeks later, on February 8, 2001, Arnett filed a petition for post-conviction relief challenging his conditions of parole (File No. 3AN-01-4748 Civ).
In addition to filing the petition for post-conviction relief, Arnett refused to sign the document setting forth his conditions of his parole. Despite this refusal, Arnett was paroled in July 2001. (The Parole Board took the position that Arnett was bound by his parole conditions, whether or not he signed them.)
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.
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 Arnett 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.
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 brought back to Alaska for a parole revocation hearing.
While that revocation hearing was pending, Arnett's Alaska parole officer discovered that Arnett had 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 your Probation or Parole Officer. Incidental contact with children shall be reported to the Officer within 24 hours.
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.
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.
The Parole Board found that Arnett had violated his parole in both regards — 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.
Following the Parole Board's revocation of his parole, Arnett filed the second of his current petitions for post-conviction relief (File No. 3AN-02-12895 Civ), seeking judicial review of the Parole Board's decision. In this petition, Arnett for the first time expressly claimed that he had a Fifth Amendment privilege to refuse to comply with the sex offender treatment program's requirement that he admit his guilt of any offenses that he might have committed. Arnett argued that he had a Fifth Amendment privilege not to discuss crimes for which he was not prosecuted, and he further argued that, because he still had a federal habeas corpus appeal pending, he had a Fifth Amendment privilege not to discuss the crimes for which he was prosecuted.
Arnett's first petition: his challenge to his conditions of parole
As explained above, Arnett's first petition for post-conviction relief raises an attack on his conditions of parole. In that petition, and now on appeal, Arnett argues that the Parole Board has no authority to impose conditions of parole that "[go] beyond the conditions of probation ordered by the [sentencing] judge".
In particular, Arnett argues that the Parole Board had no authority to order him to participate in sex offender treatment. Arnett points out that his sentencing judge did not require him to engage in such treatment; rather, the sentencing judge merely recommended that Arnett participate in sex offender treatment while incarcerated. Arnett argues that, because the Parole Board has now ordered him to submit to treatment that was not required by the sentencing judge, the Board has unlawfully infringed his liberty, violating the constitutional guarantee of due process of law. In addition, Arnett contends that the Board's action violated his rights under the double jeopardy and ex post facto clauses of the constitution.
In Hill v. State, 22 P.3d 24 (Alaska App. 2001), we upheld the Parole Board's authority to impose parole conditions on prisoners who (like Arnett) are released on mandatory parole under AS 33.20.040. We also held that the Parole Board does not violate the double jeopardy clause when it revokes a defendant's parole for violation of those conditions and sends the defendant back to prison to resume serving their sentence — because this possibility was an implicit part of the defendant's sentence from the beginning. For essentially the same reasons, we reject Arnett's contention that the Parole Board violated the ex post facto clause when it imposed conditions on Arnett's parole that went beyond the conditions of probation imposed by Arnett's sentencing judge.
Hill, 22 P.3d at 30.
Id. at 29.
Because we uphold the Parole Board's authority to impose the challenged conditions of parole, we need not decide the other issue raised with respect to this first petition for post-conviction relief: whether the petition was timely.
As we explained above, the Parole Board notified Arnett of his proposed conditions of parole in August 1998 (well in advance of Arnett's scheduled parole release date). Under AS 33.16.160(a) and 22 AAC 20.215(b)(3), a prisoner has the right to challenge their proposed conditions of parole even before the prisoner is released on parole. And, in fact, Arnett filed an objection to eleven of his parole conditions.
Under 22 AAC 20.215(b)(3), the Parole Board has sixty days to issue a decision on a prisoner's objections to parole conditions. In Arnett's case, the Parole Board incorporated its decision in a letter sent to Arnett on October 15, 1998.
The record does not reveal exactly when Arnett received the Board's letter, but it must have been on or before October 21st — because, on that day, Arnett sent a letter to the Board asking for clarification of one of the revised conditions described in the Board's October 15th letter, and also advancing several legal attacks on the Board's authority to impose conditions of parole. (The Board responded to Arnett's letter — and re-affirmed its prior decision — in a letter dated April 28, 1999.)
Arnett challenged the Parole Board's decision by filing a petition for post-conviction relief on February 8, 2001. When Arnett's petition for post-conviction relief was litigated in the superior court, the State argued that Arnett's one-year time limit for challenging his conditions of parole began running on October 15, 1998, when the Parole Board issued its written decision concerning Arnett's challenges to the parole conditions. The superior court adopted the State's position and ruled that almost all of Arnett's challenges to his parole conditions were time-barred. (The court allowed Arnett to pursue his challenges to two conditions that were modified in January 2001.)
Because the Parole Board issued the conditions of parole in advance of Arnett's actual release date, and because Arnett invoked his statutory right to challenge those conditions, and because the Parole Board then issued a written decision addressing and resolving Arnett's various challenges to his conditions of parole, there appears to be considerable merit to the superior court's ruling that the statute of limitations began to run in October 1998, when the Board issued its written decision — or, alternatively, in April 1999, when the Board wrote its letter rejecting Arnett's follow-up challenge to certain of his parole conditions. However, it is unnecessary to resolve this statute of limitations issue in Arnett's case because, as explained above, we conclude that Arnett's underlying claims have no merit.
Arnett's second petition: his challenge to the Parole Board's revocation of his parole
In Arnett's second petition for post-conviction relief, he challenges the Parole Board's decision to revoke his parole. As explained above, the Board revoked Arnett's parole for two reasons: Arnett's failure to participate in sex offender treatment (by refusing to admit his offenses), and Arnett's repeated visits to a day care center without the permission of his parole officer.
Arnett asserts that he had a Fifth Amendment privilege not to discuss his offenses during the sex offender treatment sessions and, thus, the Parole Board should not have revoked his parole on this first ground. Superior Court Judge Mark A. Rindner agreed that Arnett had a constitutional right to refuse to discuss any offenses for which he had not been prosecuted and convicted, but Judge Rindner concluded that Arnett had no privilege to refuse to discuss the three offenses for which he was convicted. In this appeal, the State contends that this analysis is correct, and that the Parole Board therefore acted properly in revoking Arnett's parole for failing to participate (to this extent) in the sex offender treatment program.
But four months after Judge Rindner issued his decision in Arnett's case, this Court issued our decision in James v. State, 75 P.3d 1065 (Alaska App. 2003). In James, we held that probationers (and, by extension, parolees) have a Fifth Amendment right not to discuss even 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.
James, 75 P.3d at 1072.
Based on our decision in James, we must reverse the superior court's decision on this issue and remand Arnett's case for further proceedings on this aspect of his petition for post-conviction relief. Judge Rindner must determine, under the facts of Arnett's case, whether Arnett had a valid Fifth Amendment right to decline to discuss his offenses during the sex offender treatment.
We now turn to Arnett's second claim — his assertion that the Parole Board should not have revoked his parole based on his repeated visits to the day care center. As we explained above, when this issue was litigated to the Parole Board, Arnett presented a factual defense: he testified under oath that his visits to the day care center had, in fact, been authorized by his parole officer — because the parole officer had given Arnett permission to pick up his girlfriend from work, and Arnett's girlfriend worked at the day care center.
To rebut Arnett's defense, his Alaska parole officer presented hearsay evidence concerning her conversation with Arnett's Kentucky parole officer. According to the Alaska parole officer, her Kentucky counterpart said that although Arnett received permission to pick up his girlfriend from work, Arnett had failed to mention that his girlfriend worked at a day care center — and the Kentucky parole officer would never have allowed Arnett to visit the day care center if he had known.
After hearing these competing versions of events, the Parole Board concluded that Arnett had not had permission to visit the day care center. Judge Rindner affirmed the Parole Board's factual finding, concluding that it was supported by substantial evidence.
In this appeal, Arnett argues that the Parole Board abused its discretion by crediting the hearsay account of his Kentucky parole officer as opposed to the competing version of events that Arnett presented through in-person testimony. But hearsay testimony is admissible at parole revocation hearings. It was for the Parole Board to decide whether the hearsay account of the Kentucky parole officer was more credible than Arnett's account. We agree with Judge Rindner that the Board's resolution of this factual issue is supported by substantial evidence. We therefore affirm Judge Rindner's dismissal of this aspect of Arnett's petition for post-conviction relief.
See Alaska Evidence Rule 101(c)(2) (declaring that, except for the evidence rules governing privileges not to testify, the evidence rules do not apply at parole hearings).
See Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991); Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989) (the ultimate factual finding or "verdict" of an administrative agency is reviewed under the "substantial evidence" standard of review).
Arnett raises one additional issue in this appeal. He claims that, even if the Parole Board had adequate reason for revoking his parole from his sex offense convictions, the Board had no justifiable basis for revoking his parole from his failure to appear conviction. Arnett points out that, when he was sentenced for failing to appear, the sentencing judge suggested that Arnett's sex offenses had "no bearing" on his sentence for failing to appear. Based on this, Arnett argues that even if he violated his conditions of parole relating to his sex offenses, these violations were not pertinent to his parole from the failure to appear conviction.
Judge Rindner ruled that the Parole Board was not bound by the sentencing judge's view of this matter, and that the Board had a reasonable basis for consolidating the proceedings relating to the two paroles. We agree. Arnett was convicted of failing to appear because he absconded in the middle of his trial for the sex offenses. Thus, the Parole Board could reasonably conclude that, to the extent Arnett was continuing to deny or avoid responsibility for his sex offenses, or to the extent that Arnett was continuing to engage in acts aimed at circumventing or frustrating the penal efforts of the State, Arnett's conduct was relevant both to his parole from his sex offense convictions and to his parole from the failure to appear conviction. Accordingly, we affirm this aspect of Judge Rindner's decision.
Conclusion
We AFFIRM the judgement of the superior court in Arnett's first petition for post-conviction relief (the one attacking the Parole Board's authority to impose Arnett's conditions of parole).
With respect to Arnett's second petition for post-conviction relief (the one attacking the Parole Board's decision to revoke Arnett's parole for violating some of those conditions), we REVERSE the superior court's ruling regarding Arnett's Fifth Amendment claim (and we remand Arnett's case to the superior court for further proceedings on that aspect of the petition). However, we AFFIRM all other aspects of the superior court's ruling.