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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SHAWN GREGORY BELKNAP,
                                                      Court of Appeals No. A-12471
                            Appellant,               Trial Court No. 3AN-14-2560 CR

                     v.
                                                               OPINION
STATE OF ALASKA,

                            Appellee.                    No. 2610 — July 27, 2018


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Kevin M. Saxby, Judge.

              Appearances: Lars Johnson (opening brief) and Megan R.
              Webb (reply brief), Assistant Public Defenders, and Quinlan
              Steiner, Public Defender, Anchorage, for the Appellant. Ann B.
              Black, Assistant Attorney General, Office of Criminal Appeals,
              Anchorage, and Craig W. Richards, Attorney General, Juneau,
              for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge ALLARD, writing for the Court and concurring
              separately.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             Pursuant to a plea agreement, Shawn Gregory Belknap was convicted of
felony driving under the influence and sentenced to 3 years to serve.1 A few months
after his sentence was imposed, Belknap filed a pro se motion under AS 12.55.027(d)
requesting sentencing credit for the time he spent on bail release under conditions that
included court-ordered electronic monitoring. Belknap also requested that counsel be
appointed to assist him in this litigation. The superior court denied Belknap’s request
for counsel. The court ultimately granted Belknap’s request for sentencing credit in part,
granting Belknap 62 days of credit out of the approximately 279 days of credit that he
sought.
             Belknap now appeals, arguing that the superior court erred when it denied
him the additional credit he sought. Belknap also argues that the superior court erred
when it denied his request for appointment of counsel. For the reasons explained here,
we conclude that a post-judgment motion for sentencing credit under AS 12.55.027(d)
is a critical stage of a criminal proceeding for which a defendant is entitled to the
assistance of counsel. We therefore conclude that Belknap is entitled to re-litigate his
request for the additional credit with the assistance of counsel that he was previously
denied. Because Belknap’s counsel may have additional evidence or arguments to offer
in support of this request, we express no opinion as to whether Belknap is entitled to the
additional sentencing credit he seeks.


       Background facts and prior proceedings
             Belknap was arrested in March 2014 for felony driving under the influence,
reckless driving, and driving while license revoked. A month after his arrest, Belknap
was released on bail under conditions that included 24-hour GPS-based electronic


   1
       AS 28.35.030(n).

                                          –2–                                       2610

monitoring supervision through a steel cuff monitor on Belknap’s ankle. The bail order
restricted Belknap to his house, with limited passes for work, court, and medical
appointments. Belknap was also required to carry a remote SCRAM breath alcohol
monitor, which would test Belknap’s breath for the presence of alcohol at both scheduled
and random times throughout the day. The SCRAM monitor was equipped with a
separate GPS tracking system and facial recognition software to ensure Belknap’s
compliance with the tests. Belknap successfully completed 62 days without any
violations of the conditions of his bail release while under this bail order.
             At Belknap’s request, the trial court then modified Belknap’s bail release
to eliminate the 24-hour GPS-based continuous electronic monitoring. The court
retained the SCRAM breath alcohol monitoring. Under this modified bail order,
Belknap’s movements were only tracked intermittently, through the GPS-based SCRAM
breath alcohol tests. Belknap’s time at work was also directly supervised by a live third-
party custodian.
             Belknap was less successful on these modified conditions.              After
approximately six months on the modified bail release program, Belknap failed two
different drug tests and he was remanded to custody for that reason. Less than a month
later, Belknap was re-released on the same modified bail conditions, but subsequently
remanded to custody again after another failed drug test.
             On April 6, 2015, Belknap pleaded guilty to felony driving under the
influence pursuant to a plea agreement, and he was sentenced to 3 years to serve.
Belknap was represented by privately retained counsel at his sentencing hearing.
             Shortly after Belknap was sentenced, the Alaska legislature enacted the
current version of AS 12.55.027(d), which allows trial courts to grant sentencing credit
to defendants who are on court-ordered electronic monitoring programs during their bail



                                           –3–                                      2610

release.2 This sentencing credit is not available to defendants who commit “a criminal
offense” while on their electronic monitoring program.3 In most instances, a defendant’s
violation of a condition of release qualifies as a “criminal offense” for these purposes and
precludes a defendant from receiving credit under AS 12.55.027(d).4
              In July 2015, shortly before this new legislation went into effect, Belknap
filed a pro se motion under the new statute. In that motion, Belknap sought credit for the
approximately 279 days that he spent on pretrial bail release in his case. The court
refused to hear the pro se motion because Belknap was still represented by his private
counsel.5 Belknap’s private counsel was then permitted to withdraw, and the court then
accepted the pro se motion for filing.
              The State opposed Belknap’s claim for credit on multiple grounds. The
State argued first that the statute could not be retroactively applied to Belknap. The State
also argued that Belknap’s modified monitoring program was not sufficiently


   2
       SLA 2015, ch. 20, §§ 1-3 (House Bill 15). The effective date of this new
legislation was August 12, 2015. See 2015 House Journal 1188.
   3
       AS 12.55.027(d) (“A court may grant credit against a sentence of imprisonment for
time spent under electronic monitoring if the person has not committed a criminal offense
while under electronic monitoring ...”); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018
WL 1221458, at *5 (Alaska App. Mar. 9, 2018).
   4
       See AS 11.56.757(b) (violation of condition of release is a class B misdemeanor); see
also Bell, 2018 WL 1221458 at *5; State v. Thompson, __ P.3d __, Op. No. 2595, 2018 WL
1885671, at *2-5 (Alaska App. Apr. 20, 2018) (holding that a violation of conditions of
release did not qualify as a criminal offense for purposes of awarding sentencing credit under
AS 12.55.027(d) during the time in which the Alaska legislature had categorized this offense
as a non-criminal violation).
   5
       See, e.g., Ortberg v. State, 751 P.2d 1368, 1379 n.9 (Alaska App. 1988) (pro se
pleadings are properly rejected by the court when a defendant is represented by counsel).


                                            –4–                                          2610

comprehensive or restrictive to qualify for “electronic monitoring” for purposes of
AS 12.55.027(d). Lastly, the State argued that Belknap was ineligible for any sentencing
credit because he had violated the conditions of his release by ingesting illegal drugs
while on bail release.
              The superior court held an evidentiary hearing on Belknap’s request for
credit. At the evidentiary hearing, Belknap requested that counsel be appointed to assist
him in litigating his motion. The superior court denied this request. The court also
denied Belknap’s request for a continuance, although the court allowed Belknap to
submit additional materials after the hearing and the court also allowed Belknap to
submit additional briefing.
              The superior court subsequently issued a written order rejecting the State’s
retroactivity argument and partially granting Belknap’s motion for credit. The court
concluded that Belknap was entitled to credit for the 62 days that he spent on bail release
under the 24-hour GPS-based electronic monitoring program, because Belknap
successfully completed that time on electronic monitoring without violating the
conditions of his release or otherwise committing a new criminal offense. But the court
concluded that Belknap was not entitled to any credit for the time he spent on the
modified SCRAM-only monitoring program because the court found that this modified
program was not sufficiently comprehensive or restrictive to qualify as “electronic
monitoring” for purposes of AS 12.55.027(d). The court also noted that Belknap would
apparently be ineligible for that credit based on the violations of the conditions of his
release while on that modified program.
              Belknap filed a motion for reconsideration, arguing that the modified
SCRAM-only monitoring program was sufficiently restrictive to be considered
“electronic monitoring” under the statute because Belknap was subject to multiple



                                           –5–                                       2610

random breath tests on a daily basis and those random breath tests also automatically
recorded his GPS location. According to Belknap, there was no functional difference
between the level of supervision provided by the original 24-hour GPS-based steel ankle
cuff monitoring program and the subsequent modified monitoring program.
              The superior court rejected this claim and denied Belknap’s motion for
reconsideration. The court also noted that, even if the SCRAM-only program qualified
as “electronic monitoring” under the statute, Belknap’s illegal drug use while on that
program would make him ineligible for any credit for the time he spent on bail release
under that modified program.6
              Belknap, now represented by the Alaska Public Defender Agency, appeals
the superior court’s rulings, including the superior court’s denial of his request for
counsel. The State has not cross-appealed.7


       Why we conclude that Belknap was entitled to the assistance of counsel in
       litigating his request for credit
              On appeal, Belknap argues that the superior court erred when it denied his
request for appointed counsel. Belknap contends that a motion for sentencing credit
under AS 12.55.027(d) should be considered a “critical stage” of the underlying criminal
action akin to sentencing because resolution of such claims directly affects the length of
time a defendant will have to serve in jail.8

   6
       AS 12.55.027(d).
   7
       On appeal, the State argues that Belknap was not entitled to the 62 days of credit he
received. Because the State did not cross-appeal the granting of this credit, we do not
address the State’s arguments here.
   8
       See Egelak v. State, 438 P.2d 712, 715 (Alaska 1968) (criminal defendant has
                                                                       (continued...)


                                           –6–                                        2610

              In response, the State argues that a post-judgment motion for sentencing
credit is not a “critical stage” of the underlying criminal action, and Belknap was
therefore not entitled to the assistance of counsel. Instead, the State analogizes these
court proceedings to administrative prisoner disciplinary proceedings in which a
defendant faces the loss of potential good-time credit based on his alleged misconduct
while in jail. The State points out that prisoners are not entitled to counsel for these
administrative hearings even though resolution of those proceedings may also affect the
amount of time that the prisoner will serve in jail.
              We find this analogy inapt. A prisoner disciplinary proceeding is an
administrative matter conducted under the authority of the Department of Corrections.9
The proceeding is entirely separate from the prisoner’s underlying criminal case and its
focus is on whether the prisoner violated the facility’s rules as a factual matter.10
              In contrast, a motion for sentencing credit is filed as part of the defendant’s
underlying criminal case and is litigated in the trial court. The motion involves factual
matters relating to other proceedings in the criminal case — specifically, the court’s bail
orders and the defendant’s conduct while under those court orders. In addition, it is the
defendant who bears the burden of showing, by a preponderance of the evidence, that he
is entitled to the sentencing credit he seeks.11 Moreover, as this case demonstrates,
resolution of the motion can involve complicated questions of statutory interpretation


   8
       (...continued)
constitutional right to be present and to be assisted by counsel at every critical stage of a
criminal proceeding).
   9
        See 22 Alaska Administrative Code (AAC) 05.400 et seq.
   10
        See McGinnis v. Stevens, 543 P.2d 1221, 1228-29 (Alaska 1979).
   11
        See AS 12.55.027(e).


                                            –7–                                         2610

that an unrepresented defendant is ill-equipped to litigate. Likewise, resolution of the
motion will often require supplementation of the factual record with materials from the
private electronic monitoring agencies that can be difficult for an incarcerated and
unrepresented defendant to obtain.12
               In Shannon v. State, an unpublished memorandum, we recognized that a
defendant litigating a post-judgment motion to reduce sentence would face similar
difficulties, and we therefore concluded that defendants were entitled to the assistance
of counsel in litigating those post-judgment motions.13 We also find the reasoning
articulated by Chief Judge Bryner in his concurrence in Shannon particularly persuasive
and equally applicable to the circumstances presented here.
               As Chief Judge Bryner noted, a post-judgment motion to reduce sentence
is “neither detached from nor collateral to the original criminal case.”14 Instead “it is a
component part of the original case and, as such, is available to the accused as a matter
of right.”15 Chief Judge Bryner further noted that “[o]nce the right to counsel attaches
in a criminal case ... it attaches to the entire procedural constellation, not just to the trial




   12
       Cf. Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973) (holding that the right to
counsel extends to the initial pleading stage of applications for post-conviction relief because
“[o]nly the presence of counsel will assure that meritorious claims will be fairly presented
and full advantage taken of the procedures”).
   13
        Shannon v. State, 1995 WL 17220757, at *1-2 (Alaska App. Mar. 29, 1995)
(unpublished) (concluding that the right to counsel for a post-judgment motion to reduce
sentence “is at least as basic a right as the right to the assistance of counsel in presenting an
initial application for post-conviction relief”).
   14
        Id. at *2 (Bryner, C.J., concurring).
   15
        Id.


                                                –8–                                        2610

proper.”16 He therefore concluded that the right to counsel should apply to a timely post-
judgment motion for reduction of sentence, just as it does to other parts of a defendant’s
criminal case.17
               We agree with Chief Judge Bryner that the right to counsel in a criminal
case necessarily extends to post-judgment motions in that criminal case. We also
conclude that motions for sentencing credit are no less integral to the underlying criminal
case than the motion to reduce sentence at issue in Shannon. Accordingly, we conclude
that an indigent defendant is entitled to the assistance of counsel when litigating a post-
judgment claim for credit for electronic monitoring.
               We note that, in most instances, a defendant will already be represented by
counsel at the time these motions are filed. Belknap’s case is unusual in this regard
because he was represented by private counsel at sentencing, but he apparently became
unable to pay for his private counsel. The private attorney was then allowed to withdraw
when Belknap filed his pro se motion for sentencing credit, apparently without any
inquiry into whether Belknap was now eligible for appointed counsel.
               Having determined that the superior court erred when it refused Belknap’s
request for appointed counsel, we now turn to the State’s alternative argument that this
error was harmless beyond a reasonable doubt because Belknap is not entitled to the
credit he seeks as a matter of law. Belknap argues that deprivation of counsel in these
circumstances can never be harmless and should be recognized as structural error.
               We conclude that we need not resolve that issue here, because we conclude
that there are enough questions remaining regarding the nature of the supervision



   16
        Id.
   17
        Id. at *3.


                                           –9–                                       2610

provided under the SCRAM-only monitoring to make the proper outcome of this case
unclear. Although the attorneys on appeal have done an admirable job in litigating the
complicated legal issues raised by Belknap’s request for credit, their advocacy has
necessarily been limited by the existing factual record, which does not provide a clear
picture of the day-to-day supervision and GPS tracking provided by the SCRAM-only
monitoring. It may be that, after consultation with counsel, Belknap has no additional
facts or legal arguments to offer in support of his claim for the additional sentencing
credit. But we are unwilling to conclude that Belknap’s claim fails as a matter of law
without giving him the opportunity to re-litigate his claim with the assistance of counsel
that he was erroneously denied.


      Conclusion
             We VACATE the portion of the superior court’s order denying Belknap
sentencing credit for the time spent on the SCRAM-only monitoring program, and we
REMAND this case to the superior court for further proceedings consistent with this
decision.




                                          – 10 –                                    2610

Judge ALLARD, concurring.


              I agree that Belknap should be given an opportunity to litigate his claim for
the sentencing credit with the assistance of counsel. I write separately only to provide
additional guidance on some of the legal issues presented by this case.
              Belknap is correct that there is no definition of “electronic monitoring” in
the statute. However, Belknap misreads the legislative history on this matter. On appeal,
Belknap points to various committee minutes in which the legislature discussed, but did
not decide, whether “electronic monitoring,” for purposes of AS 12.55.027(d) should be
restricted to the traditional steel cuff ankle monitor used by the Department of
Corrections.1 But these discussions were framed in terms of not wanting to limit the
courts if there were technological advancements that could provide the same level of
supervision as provided by the traditional steel cuff monitor. Thus, in those discussions,
the sponsor of the bill, Rep. Tammie Wilson, explained that the bill did not include a
specific definition of “electronic monitoring” because the technology kept advancing and
she did not want to limit the courts in deciding which technology to use in a particular
case.2 There is nothing in those discussions to suggest that the legislature was willing to
approve an electronic monitoring system that provided less supervision than the
supervision provided by the traditional steel cuff ankle monitoring used by the
Department of Corrections.
              Instead, as the State points out, there are other discussions in the legislative
history suggesting that the legislature was only interested in granting sentencing credit to

    1
     See Minutes of House Judiciary Comm., House Bill 15, Remarks of Rep. Gabrielle
LeDoux and Rep. Tammie Wilson, 01:36:33-01:38:00 (Mar. 18, 2015).
    2
        Id.


                                            – 11 –                                      2610

monitoring systems that were at least as reliable and as accurate as the traditional 24-hour
GPS-based steel cuff ankle monitoring system. For example, the legislature dismissed the
idea that credit could be given to a person whose movements were tracked by a smart
phone’s GPS system.3 The legislature concluded that such a system would not be
sufficiently reliable because the defendant could easily circumvent the system by handing
the phone to another person.4
              The legislature likewise rejected an amendment proposed by Rep. Les Gara
that would have extended sentencing credit to defendants who were monitored by 24-hour
live third-party custodians.5 Rep. Gara proposed this amendment because there are places
in rural Alaska that do not have adequate GPS coverage to support electronic monitoring.6
Although various legislators expressed concerns about the fact that some rural Alaskans
would be excluded from the benefits of AS 12.55.027(d), the legislature ultimately
rejected the amendment, concluding that third-party custodians were not as reliable as
electronic monitoring and that third-party custodians could not provide the kind of
instantaneous reporting of location violations that a 24-hour GPS-based system could.7


    3
      See Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie
Wilson, Remarks of Rep. Lynn Gattis, Remarks of Nancy Meade, General Counsel, Alaska
Court System, 02:35:49-02:45:37 (Apr. 10, 2015).
    4
      See Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Lynn Gattis,
02:45:25-02:45:37 (Apr. 10, 2015).
    5
      Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Les Gara,
02:31:14-02:31:23, 02:46:54-02:47:30 (Apr. 10, 2015).
    6
        Id. at 02:13:30-02:14:22.
    7
      Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie Wilson,
02:33:54-02:34:55; Testimony of Nancy Meade, General Counsel, Alaska Court System,
                                                                       (continued...)


                                           – 12 –                                     2610

             Given this legislative history, it appears that Belknap faces an uphill battle
in demonstrating that the modified SCRAM-only monitoring program was sufficiently
comprehensive to qualify as “electronic monitoring” under AS 12.55.027(d). I also note
that Belknap’s apparent drug use while on the modified SCRAM-only program presents
a separate obstacle that Belknap must also overcome before he can be found eligible for
the additional sentencing credit he seeks.8




   7
      (...continued)
02:45:55-02:46:09 (Apr. 10, 2015).
       8
       AS 12.55.027(d) (“A court may grant credit against a sentence of imprisonment for
time spent under electronic monitoring if the person has not committed a criminal offense
while under electronic monitoring ...”); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018
WL 1221458, at *5 (Alaska App. Mar. 9, 2018) (explaining that the State bears the burden
of production regarding any alleged new criminal offenses but the defendant bears the
ultimate burden of persuasion).


                                            – 13 –                                       2610
