Opinion
Court of Appeals No. A-12201 No. 6769
02-06-2019
JIM WAYNE THORNHILL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John K. Bodick, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. Trial Court No. 1KE-14-90 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, William B. Carey, Judge. Appearances: Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John K. Bodick, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
After he was released on mandatory parole, Jim Wayne Thornill resided at Glacier Manor, a community residential center, for approximately one year. Thornhill later requested credit against his sentence for that time, asserting that he was entitled to this credit under State v. Shetters. The State opposed the request for Shetters credit, asserting that Thornhill resided at Glacier Manor voluntarily. Following an evidentiary hearing on this question, the superior court found that Thornhill had not been ordered to stay at Glacier Manor and that Thornhill had declined his parole officer's attempts to have him move to a different residence. Because the record supports these findings, we affirm the denial of credit in this case.
State v. Shetters, 246 P.3d 332, 337-38 (Alaska App. 2010) (holding that a parolee is entitled to day-for-day plus good time credit for the time spent at a CRC if the parolee has been ordered to reside at a CRC by the Parole Board or a member of the Parole Board).
Background facts and prior proceedings
In 2008, Jim Wayne Thornhill was convicted of sexual abuse of a minor and sentenced to 12 years with 6 years suspended (6 years to serve). After Thornhill served his 6 years (with credit for good time), he was released from prison on mandatory parole.
See AS 33.16.010(a), (c); AS 33.20.010(a).
Thornhill wanted to serve his mandatory parole in Ketchikan, where he had lived prior to his incarceration. However, one of his parole conditions required him to reside in a community where he could receive sex offender treatment. Ketchikan does not have a sex offender treatment program, and Thornhill's parole officer made it clear to Thornhill that she would not grant any request to reside in Ketchikan until Thornhill had successfully completed his sex offender treatment program in Juneau.
Because Thornhill had no place to stay in Juneau and no money for a hotel or apartment, his parole officer recommended that he stay at Glacier Manor, a community residential center (CRC), until he could get a job and find suitable alternative housing.
According to the parole officer's testimony at the later evidentiary hearing, she made it clear to Thornhill that she was only recommending that he stay at the CRC, and that it was ultimately his decision whether to do so. The parole officer could not recall whether they specifically discussed other housing options such as the local homeless shelter. But she testified that she would have allowed Thornhill to reside there rather than the CRC, had he requested to do so. (The superior court found this testimony credible.)
In contrast to the parole officer's testimony, Thornhill testified that he had asked if he could stay at the homeless shelter or at Juno House (a transitional housing placement), and his parole officer had refused to approve either of these options. (The superior court did not find this testimony credible.)
The parole officer also testified that when Thornhill complained about staying at the CRC, she encouraged Thornhill to find other housing. The parole officer testified that she was surprised at how long Thornhill stayed at the CRC, and that she had never had a voluntary placement last so long before. The parole officer further testified that, approximately ten months into Thornhill's stay at the CRC, she actively tried to get Thornhill to move to Juno House. Although Thornhill was apparently unhappy with the CRC, he refused to move to Juno House. Instead, a month later, Thornhill asked to move in with his girlfriend. The parole officer did not initially approve this move because the relationship was too new, and she worried that Thornhill would be in a precarious position if it did not work out. (After the parole officer gave tentative approval to the move, Thornhill gave his girlfriend $1000 of his savings, whereupon the girlfriend disappeared with the money, ending all communication with Thornhill.)
Thornhill's parole officer continued to encourage Thornhill to move to Juno House or to the homeless shelter. Approximately a year into his stay at Glacier Manor, Thornhill finally left the CRC and moved into Juno House.
Ten months later, the parole officer discovered sexually explicit material on Thornhill's cell phone. A parole violation report was filed. At the parole hearing, the Parole Board found Thornhill in violation of the terms of his parole and revoked his parole. Thornhill requested Shetters credit for the time he spent at Glacier Manor, but the Parole Board denied this request.
See Shetters, 246 P.3d at 337-38.
Thornhill then filed an application for post-conviction relief, requesting that the superior court order the Department of Corrections to grant him credit for his stay at Glacier Manor. The superior court held an evidentiary hearing on the matter. Following that hearing, the court issued a written order denying the requested credit. In its order, the court found that Thornhill was not ordered to reside at the CRC, and that his stay there was voluntary. The court found that Thornhill's claim that his parole officer would not approve any housing other than the CRC was not credible. The court also found that the parole officer had made repeated efforts to get Thornhill to move out of the CRC, and that Thornhill had largely resisted those efforts.
This appeal followed.
Why we affirm the superior court's ruling
Thornhill argues that he is entitled to Shetters credit for the months he spent at Glacier Manor because (according to Thornhill) his living situation at Glacier Manor was indistinguishable from the living situation of other parolees at the CRC who were forced to live there and were receiving Shetters credit.
See State v. Shetters, 246 P.3d 338, 340 (Alaska App. 2010) ("For any identified set of circumstances, all parolees in that situation either will or will not be entitled to credit for time served.").
But, as the superior court found, Thornhill's living situation was not the same as the other CRC residents because Thornhill was not obligated to remain at the CRC. Unlike the other residents, Thornhill had not been ordered to reside at the CRC, and, unlike the other residents, Thornhill had other housing options that the superior court found would have been approved by his parole officer.
As a general matter, we agree with Thornhill that there are many reasons for the trial courts to be skeptical of purportedly "voluntary" parole placements at a CRC. We also agree with Thornhill that if a parole officer orders a parolee to reside at a CRC, the parolee should receive credit for the time spent there.
See Fox v. State, ___ P.3d ___, Op. No. 2633, (Alaska App. Feb. 1, 2019). --------
Here, however, the court held an evidentiary hearing and found that Thornhill was not ordered or otherwise required to reside at the CRC. Instead, the court found that Thornhill voluntarily chose to stay at the CRC, even in the face of his parole officer's later efforts to move him to other housing. Given these circumstances, we conclude that the superior court did not err when it denied Thornhill Shetters credit for the time he spent at the CRC.
Conclusion
The judgment of the superior court is AFFIRMED.