State v. Bourdon

OPINION

COATS, Chief Judge.

Eugene J. Bourdon was convicted of four counts of sexual abuse of a minor in the second degree.1 After serving a period of incarceration, he was released on parole. Later, when the Parole Board learned that Bourdon had probably violated his parole, the Board issued a warrant for his arrest. After Bourdon was arrested, he was placed at Glacier Manor, a halfway house in Juneau run by Gastineau Human Services. The Department of Corrections contracts with Gasti-neau Human Services to house inmates there. Bourdon stayed at Glacier Manor for 248 days, until the Parole Board revoked his parole. The Department of Corrections then transferred him to Lemon Creek Correctional Center.

Under Alaska law a prisoner "is entitled to a deduction of one-third of the term of imprisonment ... if the prisoner follows the rules of the correctional facility in which the prisoner is confined."2 This deduction for good behavior is called "good time."3 Bour-don contends that he was eligible for 83 days of good time credit for the time he spent at Glacier Manor. The Department of Corrections refused to award Bourdon good time on the ground that the good time statute only authorized the award of good time for imprisonment in a state-run institution. Relying on Valencia v. State,4 the Department contended that because Glacier Manor was not a state-run institution, Bourdon was not entitled to good time credit for the time he served in that institution.

Bourdon challenged the Department's ruling by filing an application for post-conviction relief. Superior Court Judge Larry C. Zer-vos held that Bourdon was entitled to good time credit for the time he served in Glacier Manor. The State appeals. We affirm.

Why we uphold Judge Zervos's decision

The State first argues that Bourdon's application for post-conviction relief was deficient because he failed to submit an affidavit in support of his factual contentions. But, as Judge Zervos recognized, the parties do not dispute the facts in this case. Bourdon's application raises a question of law: whether Bourdon was entitled to good time eredit for the time he was incarcerated at Glacier Man- or. Bourdon's application clearly presented this issue, and the State had every opportunity to contest Bourdon's claim and present its case to Judge Zervos.

The State next argues that Bourdon is not entitled to good time credit for the time he spent in Hacier Manor. As we have previously pointed out, under Alaska law a prisoner "is entitled to a deduction of one-third of the term of imprisonment ... if the prisoner follows the rules of the correctional facility in which the prisoner is confined."5 Corree-tional facility is defined as "a prison, jail, camp, farm, half-way house, group home, or other placement designated by the commissioner for the custody, care, and discipline of prisoners."6 In contrast, a "state correctional facility" is defined separately as "a correctional facility owned or run by the state."7 The Commissioner has the duty to "designate the correctional facility to which a pris*1211oner is ... committed" and may do so "without regard to whether it is maintained by the state."8 The definition of "correctional facility" therefore appears to include any placement designated by the Commissioner to house prisoners.9 It is not limited to state-run facilities.

Indeed, it would appear to be unfair to allow the Department of Corrections to send a prisoner to a facility where he would not receive good time. A prisoner sent by the Department of Corrections to a private prison, because he would not receive good time, would serve a longer sentence than the prisoner the Department sent to a state-run institution.

The State relies on Valencia v. State10 in support of its position that Judge Zervos erred in awarding Bourdon good time credit for the time that he served in Glacier Manor. In Valencia we held that the defendant was not entitled to good time credit for the time he spent in a court-ordered residential treatment program as a special condition of probation, although he was entitled to Nygren credit for that time when his probation was revoked.11 We held that Alaska's good time statute applied "only to prisoners who are serving sentences in correctional facilities.12 Judge Zervos correctly recognized that our decision in Valencia applies only to defendants serving time as probationers in a court-ordered residential treatment program. It does not apply to prisoners, such as Bour-don, who were placed by the authority of the Department of Corrections in a correctional facility.

The State contends that the key factor in determining whether Bourdon was entitled to good time eredit is whether the Department of Corrections would forfeit his good time credit or transfer him to a state-run facility if he violated the rules at Glacier Manor. This argument is without merit because prisoners are entitled to good time credit under AS 33.20.010(a) if they "follow{ ] the rules of the correctional facility" in which they are confined. The Department of Corrections does not have the discretion to withhold good time credit from a prisoner under AS 38.20.010(a) unless he violates the rules of the correctional facility where he is confined. Bourdon did not violate the rules of Glacier Manor. He is entitled to good time credit.

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, concurring.

. Bourdon v. State, Alaska App. Memorandum Opinion and Judgment No. 4644 (Dec. 11, 2002), 2002 WL 31761482.

. AS 33.20.010(a). Bourdon was convicted under Former AS 33.20.010(a) (1995). However, the pertinent parts of this statute are the same in the current version.

. AS 33.20.010.

. 91 P.3d 983 (Alaska App.2004).

. AS 33.20.010(a).

. AS 33.30.901(4).

. Id.

. AS 33.30.061i(a).

. See City of Kotzebue v. Dep't of Corr., 166 P.3d 37, 43 n. 28 (Alaska 2007) (noting that when the Commissioner contracts with a facility to provide custody for Alaska prisoners he "necessarily designate[s] it as a 'correctional facility under AS 33.30.901(4)").

. 91 P.3d 983 (Alaska App.2004).

. Id.; see also Nygren v. State, 658 P.2d 141, 146 (Alaska App.1983) (holding that a defendant is entitled to credit for time served in a program that subjects him to "restrictions approximating those experienced by one who is incarcerated").

. Valencia, 91 P.3d at 984.