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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                       Court of Appeals No. A-12764
                            Petitioner,               Trial Court No. 3PA-16-424 CR

                     v.
                                                              O P I N I O N
LOWELL JAMES THOMPSON IV,

                            Respondent.                 No. 2595 — April 20, 2018


              Petition for Review from the Superior Court, Third Judicial
              District, Palmer, Kari Kristiansen, Judge.

              Appearances: Ann B. Black, Assistant Attorney General, Office
              of Criminal Appeals, Anchorage, and Jahna Lindemuth,
              Attorney General, Juneau, for the Petitioner. Lars Johnson,
              Assistant Public Defender, and Quinlan Steiner, Public
              Defender, Anchorage, for the Respondent.

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

              Judge MANNHEIMER.




   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
               In 2015, the Alaska Legislature amended AS 12.55.027(d) to give trial
courts the authority to grant credit against a sentence of imprisonment for time that the
defendant spent on electronic monitoring as a condition of bail release, provided that
certain statutory requirements are met. One of these requirements is that the person “has
not committed a criminal offense while under electronic monitoring.”
               In this case, we are required to decide a question relating to criminal
defendants who violated a condition of their bail release while on electronic monitoring
between July 12, 2016 and November 27, 2017. Did a violation of bail conditions during
this 16-month period constitute a “criminal offense” — thus disqualifying the defendant
from receiving credit toward their sentence under AS 12.55.027(d) for the time they
spent on electronic monitoring?
               The significance of these two dates — July 12, 2016 and November 27,
2017 — lies in the fact that, during the past two years, the Alaska Legislature has twice
amended AS 11.56.757, the statute that forbids a person from violating the conditions
of their bail release.
               Before July 12, 2016, Alaska law clearly stated that it was a crime to violate
the conditions of one’s bail release. The pre-July 2016 version of AS 11.56.757(b)
declared that a person who violated a condition of their bail release was guilty of a class
A misdemeanor if they were released on a felony charge, or guilty of a class B
misdemeanor if they were released on a misdemeanor charge. 1
               But the legislature amended AS 11.56.757 effective July 12,
2016. 2 Under this amended version of the statute, a person who violated a condition of
their bail release was guilty only of “a violation punishable by a fine of up to $1,000”.


   1
       Enacted by SLA 2000, ch. 124, § 3.

   2
       SLA 2016, ch. 36, §§ 29-30.


                                             –2–                                        2595

              This was a significant change because, under the Alaska Criminal Code, the
term “violation” has a specialized meaning: it is “a noncriminal offense punishable only
by a fine”, and “conviction of a violation does not give rise to any disability or legal
disadvantage based on conviction of a crime”. AS 11.81.900(b)(65).
              Then, in late 2017, the legislature amended AS 11.56.757 again. Under the
current version of this statute, which took effect on November 27, 2017, 3 violatingone’s
conditions of bail release is again a crime — a class B misdemeanor.
              The question presented in this case is whether, during this interim period
of approximately 16 months, a violation of one’s conditions of release stopped being a
“criminal offense” — so that defendants on electronic monitoring who violated their
conditions of bail release in non-criminal ways did not forfeit the credit they had accrued
toward their sentence under AS 12.55.027(d).
              As we explain in this opinion, we conclude that, during this 16-month
period, defendants who violated their conditions of bail release in a non-criminal way
(i.e., other than by committing a new crime) did not “commit a criminal offense” for
purposes of AS 12.55.027(d) — and, thus, the defendant’s violation of their conditions
of release did not disqualify them from getting credit against their sentence for the time
they spent on electronic monitoring.


       Underlying facts


              In February 2016, Lowell James Thompson IV was arrested on various
charges, including driving under the influence and felony eluding. Thompson was
released on pre-trial bail, with a condition of electronic monitoring. Thompson’s other
bail conditions included prohibitions on his use of alcohol and controlled substances.

   3
       SLA 2017 (4th Special Session), ch. 1, §§ 19-20, effective Nov. 27, 2017.

                                           –3–                                        2595

              On July 12, 2016, while Thompson was on electronic monitoring, a new
version of AS 11.56.757 took effect. Under this new version, the act of violating the
conditions of one’s bail release was no longer a misdemeanor, but only a violation.
              Two weeks later, on July 27, Thompson was remanded to custody
following his arrest for two new crimes: fourth-degree assault and fourth-degree
criminal mischief. The State also alleged that Thompson violated the bail condition that
forbade him from consuming alcohol.
              On August 2, 2016, Thompson was released on electronic monitoring
again. Two and a half months later, on October 19, 2016, Thompson was again
remanded to custody after his urine tested positive for heroin, cocaine, and
methamphetamine. Thompson was not released on bail again in this case.
              Thompson ultimately reached a plea agreement with the State. Under the
terms of this agreement, Thompson pleaded guilty to driving under the influence and to
felony eluding. The State dismissed the other charges, including the fourth-degree
assault and fourth-degree criminal mischief charges for which Thompson was arrested
during his first period of electronic monitoring release.
              Thompson received a composite sentence of 3 years and 90 days, with
60 days suspended. At his sentencing, Thompson asked the superior court to give him
credit against this sentence under AS 12.55.027(d) for the approximately seven months
— a total of 214 days — that he spent on electronic monitoring.
              The State argued that Thompson was disqualified from receivingany credit
against his sentence because, both times that he was released on electronic monitoring,
he violated the conditions of his release — by consuming alcohol and by committing
new crimes during his first release, and by using illegal drugs during his second bail
release.



                                           –4–                                        2595

               Thompson responded that, under the newly amended version of
AS 11.56.757, his violations of the conditions of his release did not qualify as “criminal
offenses” for purposes of AS 12.55.027(d), and thus he was still eligible to receive credit
for the time he spent on electronic monitoring.
               The superior court agreed that Thompson’s violations of the conditions of
his release no longer constituted criminal offenses under Alaska law, and the court
therefore granted Thompson the credit that he requested. The court’s order did not
address the State’s claim that Thompson committed new crimes (fourth-degree assault
and fourth-degree criminal mischief) during his first period of release on electronic
monitoring.
               The State then petitioned this Court to review the superior court’s ruling.


         Why we conclude that defendants who violated the conditions of their bail
         release (other than by committing a new crime) between July 12, 2016 and
         November 27, 2017 remained eligible for credit against their sentences
         under AS 12.55.027(d) for the time they spent on electronic monitoring


               At first blush, the answer to the question in this case might appear to be
straightforward. Under AS 12.55.027(d), a person who is released on electronic
monitoring forfeits the credit they might otherwise have received against their sentence
if they “committed a criminal offense while under electronic monitoring”. From July 12,
2016 until November 27, 2017, the act of violating one’s conditions of bail release was
only a “violation” — a non-criminal offense. Thus, a person who was released on
electronic monitoring during this 16-month period did not commit a “criminal offense”
if they violated their conditions of release in some way other than committing a new
crime.



                                           –5–                                        2595

               But under Alaska law, courts employ a “sliding scale” approach to statutory
interpretation. We do not mechanically apply the “plain meaning” of the statutory
language, even if that language is facially unambiguous. 4 Instead, we look both to the
wording of the statute and to its legislative history to see if we can ascertain the
legislature’s intent when it passed the statute. 5
               Here, the State argues that the legislative history of AS 12.55.027(d)
evinces a clear legislative intent to deny electronic monitoring credit to any defendant
who violated the conditions of their bail release, even if that violation of conditions was
not independently a crime. Under Alaska’s “sliding scale” approach to statutory
interpretation, the State is entitled to make that argument. But even under that “sliding
scale” approach, the plainer the statutory language is, the more convincing the evidence
of a contrary legislative intent must be. 6
               Here, there is nothing facially ambiguous about the wording of
AS 12.55.027(d). This statute provides, in pertinent part, that a court may not grant
credit against a sentence of imprisonment for time that the defendant spent on electronic
monitoring “if the [defendant] has ... committed a criminaloffense while under electronic
monitoring”.
               This statutory credit was enacted in 2015. 7 At that time (as we have
already explained), AS 11.56.757 made it a crime to violate the conditions of one’s bail
release. Thus, when the legislature enacted the present statutory provisions giving credit




   4
       State v. Fyfe, 370 P.3d 1092, 1094 (Alaska 2016).
   5
       Ibid.
   6
       Ibid.
   7
       SLA 2015, ch. 20, §§ 1-3.

                                              –6–                                     2595

for electronic monitoring, the phrase “criminal offense” included any violation of the
defendant’s conditions of release.
               The legislative history of AS 12.55.027(d) also makes clear that the
legislature understood that this was the case — and that the legislature fully intended to
deny electronic monitoring credit to a defendant who violated the conditions of their bail
release.
               The sponsor of the “credit for electronic monitoring” law, Representative
Tammie Wilson, specifically stated that the intent of her legislation was to grant credit
to defendants on electronic monitoring only if “they follow the judge’s orders and obey
the laws of the land.” Other legislative discussions of the proposed law also focused on
the requirement that the defendant comply with all the conditions of their bail release in
order to obtain credit for time spent under electronic monitoring. 8
               Various legislators requested — and received — clarification of this exact
point.     In a House Finance Committee hearing on April 6, 2015, for example,
Representative David Guttenberg asked for clarification of the statutory language “has
not committed a criminal offense”. 9 Rep. Guttenberg pointed out that a defendant’s bail
conditions often prohibit conduct that is not itself criminal; for example, a judge can
order a defendant not to drink alcoholic beverages while on bail release, or can order the
defendant not to contact the victim or other witnesses. In response, the bill’s sponsor,
Rep. Wilson, reminded Rep. Guttenberg that any violation of a condition of bail release
constituted a “criminal offense” under Alaska law — and she declared that the intent of



   8
      These discussions are found in the audio record of the House Judiciary Committee’s
meeting of March 23, 2015, from 1:04:49 to 2:36:32.
   9
      This question, and the discussion it engendered, are found in the audio record of the
House Finance Committee’s meeting of April 6, 2015, from 2:43:40 to 2:47:36.

                                           –7–                                        2595

the proposed law was to preclude electronic monitoring credit for defendants who
violated any of the conditions of their release. 10
              A similar discussion occurred at a Senate Judiciary Committee hearing on
April 15, 2015. At that hearing, Senator Bill Wielechowski discussed a hypothetical
situation in which a defendant was on electronic monitoring for a year and then violated
the conditions of their release by drinking alcoholic beverages. Sen. Wielechowski
wanted clarification as to whether this defendant would lose their electronic monitoring
credit for the whole year, or only for the day on which the drinking occurred. A member
of the legislative staff replied that the intent of the bill’s sponsor was to preclude a
defendant from receiving any credit for electronic monitoring if the defendant “[did] not
adhere to the rules set forth by the court.” As the staffer explained, “If you ... break the
law, you’re not going to get the credit; and I believe that is the intent.” 11
              Following this discussion, Senator John Coghill stated his view that if a
person violated any condition of their bail, they would not receive any credit for
electronic monitoring. Sen. Coghill also emphasized that the legislature needed to be
very clear on this point — and he asked Rep. Wilson whether the proposed language of




   10
       See also House Finance Committee hearing on House Bill 15, April 6, 2015 @
2:19:30, where Rep. Wilson explained that a defendant would receive credit only if the
defendant was compliant with their court-ordered conditions of release, and @ 2:27:43 ­
2:28:03, where Rep. Wilson explained that, in order to receive credit for electronic
monitoring, a defendant would have to comply with all the requirements imposed by the trial
court. See also House Finance Committee hearing on House Bill 15, April 10, 2015 @
2:27:08 - 2:27:19, where Rep. Les Gara stated, “If you violate your bail condition ... , you
don’t get this credit, because you’re not allowed to commit a crime while you’re out there,
and violating your bail condition is a crime.”
   11
      Senate Judiciary Committee hearing on House Bill 15, April 15, 2015 @ 2:32:37 ­
2:33:36 (containing both Sen. Wielechowski’s remarks and the staffer’s response).

                                            –8–                                        2595

her bill was sufficient to clearly indicate that a defendant who failed on electronic
monitoring would lose “all the credit”. 12
              The ambiguity on this issue only arose the following year, when the
legislature amended AS 11.56.757 to reclassify the crime of violating one’s conditions
of bail release as a non-criminal “violation”. This legislative reclassification was part of
a larger 2016 omnibus criminal law reform bill that made substantive changes to a
significant portion of Alaska’s criminal code.
              The legislature’s stated purpose for this change — reclassifying a violation
of bail conditions from a misdemeanor to a “violation” — was to remove the possibility
of imprisonment for conduct that did not necessarily pose a threat to public safety (i.e.,
for violations of bail conditions that did not, themselves, independently constitute a
crime).
              The potential impact of this reclassification on a defendant’s eligibility for
electronic monitoring credit under AS 12.55.027(d) was never acknowledged. Indeed,
there was no discussion of this point at any of the committee hearings on the 2016
amendment to AS 11.56.757.
              In its petition to this Court, the State suggests that even though the
legislature de-criminalized the violation of bail conditions (by eliminating any criminal
penalty for bail violations that did not independently constitute a crime), there is nothing
in the legislative record to indicate that the legislature had changed its mind about
denying jail credit to defendants who violated the conditions of their release while they
were on electronic monitoring.


   12
        Senate Judiciary Committee hearing of April 15, 2015 @ 2:45:10 - 2:45:33 and @
2:48:51 - 2:49:50. See also Senate Judiciary Committee hearing of April 15, 2015 @
2:32:16 - 2:32:21 (taking a drink would be considered a criminal offense if the court had
prohibited alcohol consumption, because disobeying any condition of a bail order is a crime).

                                             –9–                                        2595

              The State notes that the legislative record from 2015 clearly shows that the
legislature wanted to deny electronic monitoring credit to defendants who violated any
bail condition, even if the defendant’s conduct did not constitute an independent crime.
Based on the clarity of the 2015 debates, and based on the fact that the legislature
engaged in only tangential discussions of this point in 2016, the State argues that the
legislature did not intend to expand eligibility for electronic monitoring credit when they
amended AS 11.56.757 in 2016.
              For this reason, the State asks us to construe AS 12.55.027(d) as if it
precluded electronic monitoring credit for defendants who “committed a criminal
offense” (the language of the statute) and also for defendants who otherwise violated a
condition of their bail release.
              The State offers a reasonable interpretation of the events of 2015 and 2016.
But it is also reasonable to construe AS 12.55.027(d) as it is written.
              When the legislature enacted its omnibus criminal law reform in
2016, 13 one of the legislature’s chief goals was to reduce criminal penalties for a range
of conduct — types of conduct where the legislature concluded that the threat to public
safety no longer justified the economic and societal costs of imprisoning offenders for
lengthy periods, or where the legislature concluded that shorter penalties would achieve
the same community goals. As we have explained, this was clearly the legislature’s
thinking when it amended AS 11.56.757 to eliminate criminal penalties for violations of
bail conditions that did not, themselves, constitute new criminal offenses.
              This new attitude toward non-criminal violations of bail conditions is
consistent with the legislature’s decision to leave the wording of AS 12.55.027(d) alone
— so that defendants would continue to lose electronic monitoring credit if they violated


   13
        SLA 2016, chapter 36 — popularly known as “Senate Bill 91”.

                                          – 10 –                                      2595

their bail conditions by committing new criminal offenses, but defendants would no
longer lose their electronic monitoring credit if they committed non-criminal violations
of bail.
              Because we conclude that both of these interpretations are reasonable, our
decision in this case is guided by the principle that, the plainer the language of the
statute, the more convincing the evidence of a contrary legislative intent must be.
              Here, that principle counsels us to reject the State’s proposed construction
of the statute, and to affirm the trial court’s ruling that Thompson’s violation of his bail
conditions by drinking alcoholic beverages and illicitly using drugs does not disqualify
him from receiving credit for the days he spent on electronic monitoring.


       The remaining issue in Thompson’s case


              Our ruling regarding the proper construction of AS 12.55.027(d) does not
wholly dispose of Thompson’s case.
              As we explained earlier, the State argued that Thompson was disqualified
from receiving electronic monitoring credit for the first period of his release because he
committed new crimes — fourth-degree assault and fourth-degree criminal mischief.
These charges were dismissed as part of a plea bargain. But AS 12.55.027(d) does not
speak of a defendant’s conviction of a new crime while on electronic monitoring. Rather,
the statute speaks of a defendant’s commission of a new crime.
              Thus, for purposes of deciding whether Thompson is eligible to receive
credit for his first period of electronic monitoring, the State must be allowed to litigate
whether Thompson did in fact commit either fourth-degree assault or fourth-degree
criminal mischief (or both) during that first period of electronic monitoring release.



                                           – 11 –                                        2595

               The State must produce evidence showingthat Thompson committed these
crimes. But this is only a burden of production, not a burden of ultimate persuasion.
Moreover, the State need not actually prosecute Thompson for these crimes by
presenting witnesses. Instead, as is the case at a probation or sentencing hearing, the
State may rely on hearsay reports or other forms of evidence that are shown to be
reliable, even if the evidence would not be admissible at a criminal trial.
               Once the State has come forward with a prima facie case that Thompson
committed the crimes, the burden shifts to Thompson to prove, by a preponderance of
the evidence, that the State’s proffered evidence is insufficient, or is otherwise unreliable,
and that he did not commit either fourth-degree assault or fourth-degree criminal
mischief. 14


        Conclusion


               We AFFIRM the superior court’s ruling that Thompson’s non-criminal
violations of his conditions of bail release do not disqualify him from receiving credit for
the time he spent on electronic monitoring.
               However, we REMAND this case to the superior court with directions to
allow the State to litigate whether Thompson committed the crimes of fourth-degree
assault and fourth-degree criminal mischief during his first period of electronic
monitoring release.
               If the State presents a prima facie case that Thompson committed these
crimes while on electronic monitoring, and if Thompson does not then prove by a
preponderance of the evidence that he did not commit these crimes, then Thompson is


   14
        Cf. AS 12.55.027(e) (“The defendant must prove by a preponderance of the evidence
that the credit claimed meets the requirements of this section.”).

                                            – 12 –                                       2595

not eligible for electronic monitoring credit for his first period of release. See State v.
Bell, __ P.3d __, 2018 WL 1221458 at *2-4 (Alaska App. 2018).




                                          – 13 –                                      2595

