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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                      Court of Appeals No. A-12693
                            Petitioner,              Trial Court No. 3AN-12-5493 CR

                     v.
                                                             O P I N I O N
ROBERT DANIEL BELL,
                                                        No. 2592 — March 9, 2018
                            Respondent.


              Petition for Review from the Superior Court, Third Judicial
              District, Anchorage, Jack W. Smith, Judge.

              Appearances: A. James Klugman, Assistant District Attorney,
              Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for
              the Petitioner. Jason A. Weiner, Gazewood & Weiner, P.C.,
              Fairbanks, for the Respondent.

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

              Judge ALLARD.


              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



   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
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 petition, we are asked to review the superior court’s decision to grant
full credit under AS 12.55.027(d) to the defendant in this case, who was released
multiple times on bail pending appeal under conditions that included electronic
monitoring. For the reasons explained here, we affirm the superior court’s order in part,
reverse the superior court’s order in part, and remand this case to the superior court for
further proceedings consistent with the guidance provided here.


       Underlying facts
             Following a jury trial, Robert Daniel Bell was convicted of second- and
third-degree theft for receiving a stolen computer.1 Bell appealed his convictions to this
Court, and we affirmed his convictions in an unpublished opinion issued on January 11,
2017.2 Bell then petitioned the Alaska Supreme Court to hear his case; that petition was
denied on May 9, 2017.3 Thus, under Alaska Appellate Rules 507(b) and 512(a)(2)[b],
our affirmance of Bell’s conviction became final on May 10, 2017.
             During the time that Bell’s appeal was pending, Bell was granted bail
pending appeal and he served what appears to have been three distinct periods of time
on electronic monitoring. The first period of time (Period I) covered January 14, 2014
through June 6, 2014. This period ended because Bell was remanded to custody based

   1
      Second-degree theft under AS 11.46.100(4); AS 11.46.190; former AS 11.46.­
130(a)(1) (2012) and third-degree theft under AS 11.46.100(3); AS 11.46.180; former
AS 11.46.140(a)(1) (2012), respectively.
   2
       Bell v. State, 2017 WL 127985, at *4 (Alaska App. Jan. 11, 2017) (unpublished).
   3
       See Bell v. State, Supreme Court File No. S-16613.

                                          –2–                                         2592

on allegations that he violated the conditions of his release. However, Bell was re-
released on electronic monitoring on July 18, 2014. This second period of time on
electronic monitoring (Period II) was briefly interrupted by what appears to have been
a remand by the electronic monitoring company (but not by the court) on August 15,
2014. Bell apparently returned to electronic monitoring on September 12, 2014 under
the same court order as before.        Bell’s second period of electronic monitoring
subsequently ended on November 21, 2014, when Bell was arrested and charged with
third-degree theft, a new criminal offense to which Bell later pleaded guilty. Nearly a
year and a half later, Bell was again granted bail pending appeal and released on
electronic monitoring. This last period of time on electronic monitoring (Period III)
continued from the date of his release on electronic monitoring (March 18, 2016) through
the end of his appeal.
             Invoking the provisions of AS 12.55.027(d), Bell asked the superior court
to award him credit against his sentence of imprisonment for the time he spent on
electronic monitoring under the court orders granting him bail release pending appeal.
Over the State’s objections, the superior court granted Bell credit for the entire time he
spent on electronic monitoring, with the exception of one day — the day on which Bell
committed the third-degree theft that he was later convicted of.
             The State petitioned this Court to review the superior court’s ruling. We
granted the petition and requested supplemental briefing on the factual basis for the
State’s objections to the superior court’s decision.
             In its supplemental briefing, the State concedes that Bell is entitled to credit
for Period III — the time from March 18, 2016 until May 10, 2017. We conclude that




                                           –3–                                         2592

the State’s concession is well-founded,4 and we therefore affirm that portion of the
superior court’s order.
              We also agree with the State that the superior court had no authority to
grant Bell credit against his sentence for Period II, because Bell’s release on electronic
monitoring for that time period was terminated based on his commission of a new crime.
Accordingly, we reverse that portion of the superior court’s order.
              However, we conclude that further proceedings are required to determine
if Bell is entitled to receive credit against his sentence for Period I. We therefore vacate
that portion of the superior court’s order, and remand this case to the superior court for
further proceedings consistent with the guidance provided here.


       Why we conclude that Bell is entitled to credit for Period III
              Alaska Statute 12.55.027(d) authorizes trial courts to award credit against
a defendant’s sentence for the time a defendant spends on bail release if the conditions
of release include electronic monitoring, and if the conditions of release are otherwise
sufficiently restrictive.
              Here, the parties do not dispute that Bell’s electronic monitoring conditions
were sufficiently restrictive to qualify for credit under AS 12.55.027(d). The parties also
agree that Bell did not commit a crime during Period III of his bail release — i.e., after
Bell was released for the last time on electronic monitoring on March 18, 2016.
              On this basis, the State concedes that Bell is entitled to credit against his
sentence for Period III (from March 18, 2016 until May 10, 2017). We agree.




   4
      See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently assess any concession of error by the State in a criminal case).

                                           –4–                                        2592

       Why we conclude that Bell is not entitled to credit for Period II
              Under the terms of AS 12.55.027(d), a trial court may not grant credit for
time spent on electronic monitoring if the defendant “has ... committed a criminal offense
while under electronic monitoring.”
              Here, the parties agree that Bell committed a new crime while he was
released on electronic monitoring. On November 21, 2014, Bell was arrested for third-
degree theft — and this arrest ended Period II of Bell’s bail release. Bell later pleaded
guilty to this offense.
              Bell argues that AS 12.55.027(d) should not be interpreted as requiring a
complete forfeiture of credit if a defendant on electronic monitoring commits a new
offense. Rather, Bell contends that the statute was intended to give trial courts the
discretion to determine how much credit a defendant should lose if the defendant
commits a new crime while on electronic monitoring.
              We disagree. Bell’s interpretation is at odds with the language of the
statute. Alaska Statute 12.55.027(d) declares that a defendant’s commission of a new
crime is a circumstance that deprives a trial court of the authority to grant credit against
a defendant’s sentence for time spent on electronic monitoring. The statute does not
require that the defendant be formally charged with that criminal offense, or that the
defendant be separately convicted of that offense.
              Moreover, the legislative history of AS 12.55.027(d) shows that the
legislature intended for a defendant to forfeit all of their credit in the event that the
defendant committed a criminal offense while on electronic monitoring.               In her
introductory remarks to the House Judiciary Committee, the sponsor of this legislation
— Rep. Tammie Wilson — stated that the legislation was intended to offer an incentive
to defendants in the form of credit for time spent on electronic monitoring before trial,



                                           –5–                                        2592

but “if you commit another crime when you’re on electronic monitoring, you do not get
[credit].”5
              At the next hearing in front of the Judiciary Committee, Rep. Wilson again
stated that “if the person has committed another criminal offense, [he] won’t be able to
get any kind of [credit].”6 This intent was also reflected in the “Explanation of Changes”
for the updated version of the bill, which stated that the new version “amends
AS 12.55.027(d) to include language that clarifies that defendants can only receive credit
against a sentence of imprisonment if the individual has not committed a criminal offense
while under electronic monitoring.”7
              After the bill was referred to the House Finance Committee, Rep. David
Guttenberg asked if a defendant would lose credit for electronic monitoring if the
defendant violated any condition of bail, even if the violation of bail conditions did not
independently constitute a crime.8 Rep. Wilson explained that a violation of bail
conditions constituted a crime under Alaska law and she stated unequivocally “that while
you’re on the ankle monitor, you can’t commit another crime and expect to get any
[credit].”9




   5
      Minutes of House Judiciary Comm., House Bill 15, remarks of Rep. Tammie Wilson,
02:05:04-02:05:12 (Feb. 20, 2015).
   6
      Minutes of House Judiciary Comm., House Bill 15, remarks of Rep. Tammie Wilson,
01:09:08-01:09:18 (Mar. 18, 2015).
   7
      Explanation of Changes for CSHB 15 ver. P, House Bill 15, Rep. Tammie Wilson,
House Judiciary Comm. Hearing (Mar. 18, 2015).
   8
      Minutes of the House Finance Comm., House Bill 15, remarks of Rep. David
Guttenberg 02:35:15-02:36:00 (Apr. 6, 2015).
   9
       Id., testimony of Rep. Tammie Wilson, 02:36:01-02:36:16.

                                          –6–                                       2592

                 At the next hearing, Rep. Les Gara introduced an amendment to include
third-party custodian release as an opportunity for a defendant to receive credit toward
their sentence, so long as the defendant is under the same restrictions as defendants on
electronic monitoring.10 In explaining his amendment, Rep. Gara declared that his
understanding of the proposed bill was that, if a defendant who was on electronic
monitoring violated a bail condition or committed a new crime, the defendant would not
receive credit against their sentence.11 No one contradicted Rep. Gara’s understanding
of this point.
                 After the bill was sent to the Senate, Sen. Bill Wielechowski specifically
asked if a defendant would lose all of their credit if they violated a condition of their
release, or if the defendant would lose just the credit for the day of the violation and no
more.12 (When Sen. Wielechowski asked this question, he noted that this might well be
an issue where the courts would look for evidence of legislative intent.13) The Alaska
Court System’s representative, Nancy Meade, responded to the senator’s question by
stating her belief that, the way the statute was worded, the commission of another
criminal offense meant that the defendant lost all credit.14
                 When Rep. Wilson joined the hearing, Sen. John Coghill asked if the intent
of the bill was to have a defendant lose all credit if they committed a crime while on

   10
      Minutes of the House Finance Comm., House Bill 15, remarks of Rep. Les Gara
02:24:55-02:28:48 (Apr. 10, 2015).
   11
      Id. at 02:27:08-02:27:19. Rep. Gara’s amendment failed in a roll call vote. Id. at
02:42:00-02:42:57.
   12
      Minutes of the Senate Judiciary Comm., House Bill 15, remarks of Sen. Bill
Wielechowski, 02:26:50-02:27:08 (Apr. 15, 2015).
   13
        Id., 02:27:30-02:27:42.
   14
        Id., testimony of Nancy Meade, 02:27:08-02:27:26.

                                            –7–                                       2592

electronic monitoring, or whether the loss of credit “should ... be prorated?”15 Rep.
Wilson answered that the courts would ultimately have to decide that question, but that
her intent was to “make them lose it all, because I think that’s a bigger incentive [if] it’s
an all-or-nothing.”16
              At the Senate Judiciary Committee’s final hearing on the bill, Sen. Lesil
McGuire noted that the committee had received a legal memo on the only outstanding
issue.17 This memo was authored by Doug Gardner of the Legislative Affairs Agency
and had been requested by the committee.18 Gardner’s memo stated unequivocally that,
given the current wording of the bill, a defendant would forfeit any and all credit if the
defendant committed a crime while on electronic monitoring.19 The memo declared that
there was “nothing ambiguous” about the wording of the bill, and that it was not
necessary to insert further language into the bill to address this issue.20 The senate
committee accepted this position, adopted it as their understanding of the bill, and passed
the bill out of committee.21




   15
        Id., remarks of Sen. John Coghill, 02:39:14-02:39:54.

   16
        Id., testimony of Rep. Tammie Wilson, 02:39:54-02:40:10.

   17
      Minutes of Senate Judiciary Comm., House Bill 15, remarks of Sen. Lesil McGuire,

4:11:58-4:12:05 (Apr. 17, 2015).
   18
      Memorandum from Doug Gardner, Director of Legal and Res. Serv. for the Legis.
Aff. Agency to Sen. Lesil McGuire for House Bill 15 (Apr. 16, 2015).
   19
        Id.
   20
        Id.
   21
      Minutes of Senate Judiciary Comm., House Bill 15, remarks of Sen. John Coghill and
Sen. Lesil McGuire, 04:13:13-04:14:06 (Apr. 17, 2015).

                                            –8–                                        2592

                From all of this, it is clear that the legislative intent of AS 12.55.027(d) was
to deny any credit to a defendant who commits a new crime while on electronic
monitoring.22
                It is true, as Bell points out, that there were some legislative comments in
the earlier hearings suggesting that this issue would ultimately have to be resolved by
judicial interpretation. But these comments occurred prior to the clarification provided
by Doug Gardner’s legal memo. Moreover, a review of the final committee hearing
before the Senate Judiciary Committee indicates that the legislation would not have
passed out of committee and been enacted into law without the clarification provided by
the Gardner memo.
                Bell argues in the alternative that his commission of a new criminal offense
in November 2014 should not bar the court from granting him credit for the first part of
Period II — that is, to the period of time after he was first re-released on electronic
monitoring and was remanded to custody by the electronic monitoring company, only
to return to the same electronic monitoring conditions a month and a half later.23
                The State argues that this type of voluntary interruption in the time spent
on electronic monitoring should not mean that the defendant’s eligibility for credit under
AS 12.55.027(d) begins anew when he returns to electronic monitoring under the same
bail release order as before. Instead, the State argues that the time “spent under


   22
        See State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016); Muller v. BP Expl. (Alaska)
Inc., 923 P.2d 783, 787 (Alaska 1996); Beck v. State, Dep’t of Transp. & Pub. Facilities, 837
P.2d 105, 116 (Alaska 1992).
   23
      We note that the current record does not explain why this remand occurred. The
State has characterized it as a “voluntary remand” and Bell did not dispute this
characterization at the oral argument held on this appeal. It is possible that Bell may
have been remanded because he was temporarily unable to pay for his electronic
monitoring program.

                                              –9–                                         2592

electronic monitoring” for purposes of determining eligibility for credit under AS
12.55.027(d) should be defined in terms of the court order that grants the defendant the
bail release on electronic monitoring. In other words, a new period of time “spent under
electronic monitoring” does not occur unless it is accompanied by a new determination
of the defendant’s suitability for bail release on electronic monitoring and a new court
order allowing that release.
             The State argues that such an approach is most consistent with the
underlying legislative purpose of AS 12.55.027(d), which was to motivate defendants
to obey the law and comply with the conditions of their court-ordered bail release while
under electronic monitoring. The State also points out that if the rule were otherwise, a
defendant would be able to improperly “bank” his credit under AS 12.55.027(d) by
periodically remanding himself to custody only to be released a few days later under the
same court order and the same electronic monitoring conditions.
             We agree that this type of manipulation would be contrary to the legislative
purpose underlying AS 12.55.027(d) and we therefore adopt the State’s proposed rule
for determining when a defendant’s “time on electronic monitoring” under AS 12.55.­
027(d) begins and ends.
             On appeal, Bell does not dispute the State’s contention that the two periods
of time he spent on electronic monitoring during Period II were governed by the same
court order. Accordingly, we conclude that Bell’s commission of a new crime at the end
of Period II bars him from receiving any credit for the entirety of Period II.


      Why we conclude that further proceedings are required to determine if Bell
      is entitled to receive credit for Period I
             Period I of Bell’s electronic monitoring release came to an end on June 6,
2016, when he was taken into custody for allegedly violating the conditions of his


                                         – 10 –                                    2592

release. There do not appear to be any findings in the record regarding whether Bell
violated his bail conditions as alleged, or whether those violations constituted criminal
offenses.
               We therefore remand Bell’s case to the superior court so that the court can
make findings regarding these alleged violations of the conditions of Bell’s release. As
already explained, Bell need not have been formally charged or actually convicted of
violating the conditions of his release under AS 11.56.757 in order for Bell to be found
to have committed these violations for purposes of making him ineligible to receive
credit under AS 12.55.027(d).
               However, Bell is entitled to notice of the alleged violations and the factual
basis for those allegations.24 On remand, therefore, the State must produce the evidence
it believes shows that Bell would be found guilty of violating the conditions of his
release had such a charge been brought. To be clear, this is only a burden of production,
not a burden of persuasion. The State is therefore not required to put on witnesses or to
actually prosecute Bell for violating the conditions of his release. Instead, the State may
rely on hearsay reports or other forms of evidence that can be shown to be reliable, even
if the evidence would not be admissible at a criminal trial.
               Once the State has fulfilled this burden of production and has presented a
prima facie case that Bell would be found guilty of violating the conditions of his release
under AS 11.56.757, the burden then shifts to Bell to prove, by a preponderance of the
evidence, that the State’s proffered evidence is insufficient or otherwise unreliable and
that he did not commit any of the alleged violations of the conditions of his release.25




   24
        Alaska Const. art. 1, § 11.
   25
        Cf. AS 12.55.027(e).

                                           – 11 –                                     2592

      Conclusion
             The superior court’s ruling is AFFIRMED in part, REVERSED in part, and
VACATED in part. Bell is entitled to credit for Period III of the time he spent on
electronic monitoring. Bell is not entitled to credit for Period II. And with respect to
Period I, the case is REMANDED for further proceedings consistent with the guidance
provided here.




                                         – 12 –                                   2592

