Michael Jerome Mosquito v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL JEROME MOSQUITO,
Court of Appeals No. A-13179
Appellant, Trial Court No. 3AN-17-06446 CI
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2717 — January 7, 2022
Appeal from the Superior Court, Third Judicial District,
Anchorage, Erin B. Marston, Judge.
Appearances: Rachel Cella, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Matthias R. Cicotte, Assistant Attorney General,
Department of Law, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge TERRELL.
In 2016, the legislature enacted AS 33.16.270.1 Under the original version
of the statute, a parolee’s period of supervision was reduced by 30 days for each 30-day
1
SLA 2016, ch. 36, § 151.
period during which the parolee complied with the conditions of parole.2 The legislature
provided that AS 33.16.270 “appl[ies] to parole granted before, on, or after [January 1,
2017].”3 This language makes clear that a parolee is entitled to a 30-day reduction to
their period of supervision (an “earned compliance credit”) if they complied with their
conditions of parole for a 30-day period after January 1, 2017, even if they were
originally placed on parole before that date.
But Mosquito argues that parolees must also receive credit for periods of
parole compliance that occurred prior to January 1, 2017. In other words, he argues that
AS 33.16.270 applies retroactively not only, as the statute explicitly provides, to terms
of parole granted before the effective date, but also to periods of compliance that
occurred prior to the statute’s effective date.
The question presented by this appeal is whether AS 33.16.270 applies to
periods of compliance on parole supervision prior to its effective date, or only to periods
of compliance on or after the effective date. For the reasons explained in this opinion,
we conclude that a parolee is only entitled to earned-compliance credits for periods of
compliance on or after AS 33.16.270’s effective date of January 1, 2017.
Why we decide this case under the public-interest exception to the
mootness doctrine
The parties agree that this appeal is moot because Mosquito has now served
all of the incarceration and parole time associated with the criminal conviction at issue
2
See former AS 33.16.270(1) (2018). The statute has since been amended to lower the
award to 10 days of reduction of the parole supervision period for every 30 days of
compliance with parole conditions. See FSSLA 2019, ch. 4, § 116.
3
SLA 2016, ch. 36, §§ 185(p)(10) & 190.
–2– 2717
in this case. But Mosquito asks us to decide his appeal on its merits under the public-
interest exception to the mootness doctrine.
Courts look at three main factors in deciding whether to apply the public-
interest exception to the mootness doctrine: “(1) whether the disputed issues are capable
of repetition, (2) whether the mootness doctrine, if applied, may cause review of the
issues to be repeatedly circumvented, and (3) whether the issues presented are so
important to the public interest as to justify overriding the mootness doctrine.”4
With respect to the first two factors, this issue has already come before this
Court in multiple cases, and each time we have found the issue to be moot and declined
to reach the merits. We therefore think it clear that the issue is capable of repetition, and
that routine application of the mootness doctrine has caused review of the issue to be
repeatedly circumvented.5
We also conclude that the retroactivity of the parole earned-compliance
credits provision is important to the public interest. There are a large number of persons
on parole, and if they are awarded credit against their parole supervision period for time
spent in compliance with parole conditions prior to AS 33.16.270’s effective date, then
many of them would receive sufficient credits to terminate parole supervision.
Accordingly, we conclude that the public-interest exception to the mootness
doctrine is satisfied and that review on the merits is appropriate in this case.
4
Fairbanks Fire Fighters Ass’n, Local 1324 v. Fairbanks, 48 P.3d 1165, 1168 (Alaska
2002) (quoting Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191, 1196 (Alaska
1995)).
5
See, e.g., Morris v. State, Court of Appeals File No. A-13011 (Order dated Jan. 14,
2020).
–3– 2717
Why we conclude that the parole earned-compliance credits statute only
applies to time spent on parole after the statute’s effective date
This case presents a question of statutory interpretation. “When we
interpret a statute, our task is ‘to ascertain the legislature’s intent and then to construe the
statute so as to implement that intent.’”6 We interpret statutes “according to reason,
practicality, and common sense, considering the meaning of the statute’s language, its
legislative history, and its purpose.”7 We use “a sliding scale approach to statutory
interpretation, in which ‘the plainer the statutory language is, the more convincing the
evidence of contrary legislative purpose or intent must be.’”8 Additionally,
AS 01.10.090 states that “[n]o statute is retrospective unless expressly declared therein.”
Alaska Statute 33.16.270, as originally enacted, allowed a parolee to receive
a 30-day reduction in their period of parole supervision for each 30-day period during
which they complied with their conditions of parole. The statute was enacted as part of
Senate Bill 91, a large-scale revision of Alaska’s criminal statutes. Senate Bill 91 also
enacted a virtually identical earned-compliance credits statute for probationers,
AS 33.05.020(h).9
6
R.C. v. State, 435 P.3d 1022, 1026-27 (Alaska App. 2018) (quoting Williams v. State,
2015 WL 4599554, at *3 (Alaska App. July 29, 2015) (unpublished)).
7
State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016) (quoting State, Div. of Workers’
Comp. v. Titan Enters., LLC, 338 P.3d 316, 320 (Alaska 2014)). We independently
determine whether a statute is retroactive. Eastwind, Inc. v. State, 951 P.2d 844, 847 n.8
(Alaska 1997).
8
Adamson v. Anchorage, 333 P.3d 5, 11 (Alaska 2014) (quoting McDonnell v. State
Farm Mut. Auto. Ins. Co., 299 P.3d 715, 721 (Alaska 2013)).
9
SLA 2016, ch. 36, § 114. Like the parole earned-compliance credits statute,
AS 33.05.020(h) was amended in 2019 to reduce the award of credits down to 10 days for
every 30 days spent in compliance with probation conditions. FSSLA 2019, ch. 4, § 100.
–4– 2717
These earned-compliance credits statutes result in a substantial reduction
of the parole or probation supervision period for those who comply with their
supervision conditions. They have their origin in the work of the Alaska Criminal
Justice Commission. The Commission issued a report in 2015, recommending that
Alaska enact statutes “establishing an earned compliance policy that grants probationers
and parolees one month credit towards their probation and/or parole term for each month
they are in compliance with the conditions of supervision.”10 The report also noted that:
Historically, probation and parole supervision was focused on
surveillance and sanctioning in order to catch or interrupt
negative behavior. However, research shows that
encouraging positive behavior with incentives and rewards
can have an even greater effect on motivating and sustaining
behavior change.
While incarcerated offenders in Alaska have the opportunity
to receive good time and furlough incentives in
acknowledgment of positive behavior and program
participation, the state provides no similar incentives for
offenders under supervision. Alaska has no earned discharge
policy to allow supervisees to earn time off their supervision
sentence for good behavior.[11]
Turning to the provision at issue in this appeal, the applicability clause for
AS 33.16.270 provides that the parole earned-compliance credits program “appl[ies] to
parole granted before, on, or after [January 1, 2017].”12 This language makes clear that
a parolee is entitled to a 30-day reduction in their period of supervision if they complied
with their conditions of parole for a 30-day period after January 1, 2017, even if they
10
Alaska Criminal Justice Commission, Justice Reinvestment Report, at 24 (Dec. 2015).
11
Id. at 12.
12
SLA 2016, ch. 36, §§ 185(p)(10) & 190.
–5– 2717
were originally placed on parole prior to that date. But it is ambiguous as to whether a
parolee receives credit for periods of compliance prior to January 1, 2017.
On appeal, however, Mosquito argues that this language is not ambiguous.
He argues that the plain language of “before, on, or after” makes it clear that the
legislature intended the statute to apply retroactively, and that the State bears a “heavy
burden” to show that the statute is only prospective.
The problem with this argument is that a statute can be retroactive in one
sense but not in another. Here, the legislature specified that the parole statute “appl[ies]
to parole granted before, on, or after” the effective date. This makes it clear that the
legislature intended the statute to apply retroactively in the sense that it applies to people
who were granted parole before the effective date. But the question presented in this
appeal is different: whether the legislature intended the statute to apply retroactively in
the sense that it applies to periods of compliance that occurred before the effective date.
As to this question, the plain language of the statute is silent. We must therefore turn to
the legislative history and the purpose of the statute.
In early drafts of Senate Bill 91, both the probation and parole earned-
compliance credits statutes applied to individuals placed on probation or parole “on or
after” the effective date of the statute.13 But this language meant that existing parolees
and probationers would not be covered by the earned-compliance credits program. The
drafters reworked the applicability clauses to avoid this result. Specifically, Senator
Anna MacKinnon introduced an amended applicability clause for the probation earned­
13
Sponsor Substitute for Senate Bill (S.S.S.B.) 91, § 139(h)(8), (j)(20), 29th Leg., 2d
Sess. (Feb. 3, 2016); Committee Substitute for Sponsor Substitute for Senate Bill
(C.S.S.S.S.B.) 91, § 143(h)(8), (j)(12), 29th Leg., 2d Sess. (S. St. Aff. Comm., Mar. 9, 2016);
C.S.S.S.S.B. 91, § 163(j)(6), (l)(26), 29th Leg., 2d Sess. (S. Judiciary Comm., Mar. 25,
2016).
–6– 2717
compliance credits provision, AS 33.05.020(h), which said that it applies “to sentences
imposed before, on, or after the effective date . . . for time served on probation on or after
the effective date” of the provision.14 An aide to Senate Bill 91’s chief sponsor, Senator
John Coghill, explained that Senator MacKinnon’s amendment meant that both earned-
compliance credits provisions would “apply to those individuals who were on probation
or parole at the time of passage of the bill.”15 The senate subsequently approved the
passage of this amendment with regard to the probation earned-compliance credit statute.
As Mosquito notes, however, the legislature never amended Senator
MacKinnon’s applicability clause for probation earned-compliance credits to include
parole earned-compliance credits, and never adopted an identical applicability clause
specific to parole earned-compliance credits. Instead, the legislature changed the
applicability clause for the parole earned-compliance credits program so that it applied
to individuals placed on parole “before, on, or after” the effective date. Mosquito argues
that this history demonstrates an intent to break with the original plan that the parole and
probation earned-compliance credits provisions have the same temporal reach.
As we noted earlier, the applicability clause for the parole earned-
compliance credits program is facially ambiguous as to whether the statute applies to
time spent in compliance with parole conditions prior to the statute’s effective date.16
14
Minutes of the Senate Fin. Comm., Senate Bill 91, at 2:21:21 p.m. (Apr. 2, 2016).
15
Id., Testimony of Jordan Schilling, Staff to Sen. John Coghill (emphasis added).
16
Notably, the applicability clause for the parole earned-compliance credits program
included two other statutes that clearly regulated conduct occurring after the statutes’
effective date — (1) AS 33.16.180, regarding duties of DOC’s commissioner with respect
to the newly created administrative parole scheme, and (2) AS 33.16.215, involving a new
system of graduated sanctions for technical parole violations. This further suggests that the
phrase “parole granted before, on, or after” the statutes’ effective date was intended to
(continued...)
–7– 2717
And the provision governing the identical probation program shows that the legislature
understood how to write an applicability clause that clearly applied to persons placed on
probation before the effective date, but only for periods of compliance that occurred after
the effective date. Indeed, the existence of the unambiguous applicability clause
governing the probation program is the strongest evidence that the legislature must have
intended something different when it enacted the ambiguous applicability clause
governing the parole program.
But nothing else in the legislative history supports that conclusion.
Mosquito has cited to no evidence that the drafters discussed, let alone approved,
granting earned-compliance credits for past conduct, and our own independent review
of the legislative history discloses no such discussion. Instead, the focus of discussion
was on whether the incentive program should apply only to individuals granted parole
on or after the effective date, or whether it should also apply to individuals granted
parole before the effective date. Under these circumstances, the ambiguous applicability
clause governing the parole earned-compliance credits program appears more the product
of inartful drafting than a specific intent to treat the probation and parole programs
differently.
Subsequent developments support this conclusion. In Senate Bill 55,
passed only one year after Senate Bill 91, the legislature enacted a provision stating:
“Nothing in the provisions of AS 33.16.270 may be construed as applying to credit for
time served on parole before January 1, 2017.”17 Such “clarifying legislation” is not
binding on the courts, but it is “a factor that the courts should consider when determining
16
(...continued)
include a person on parole before the statutes’ effective date, while applying only to time
spent on parole after the effective date.
17
SLA 2017, ch. 13, § 30.
–8– 2717
the meaning and effect of the pre-existing statute.”18 Here, the legislature’s clarification
supports the conclusion that the legislature did not intend for parolees to receive earned-
compliance credits for time served on parole prior to January 1, 2017.
Policy concerns also weigh against Mosquito’s proffered interpretation.
The earned-compliance credits program was designed to incentivize good behavior.
Because parolees in the past cannot have been expected to change their behavior in
response to a program that did not yet exist, the policy goal of incentivizing good
behavior would not be served by granting earned-compliance credits for time served on
parole prior to January 1, 2017.
Mosquito contends that the purpose of the statute was to reduce the
caseloads of parole officers and to save the state money, and he asserts that his proposed
interpretation would further those goals. But we do not pursue the policy goals of the
legislature by whatever means necessary; rather, we attempt to implement those goals
through the framework designed and adopted by the legislature.
Here, the legislature designed an earned-compliance credits program to
incentivize compliance with parole conditions. Mosquito’s interpretation would serve
the overarching policy goals of that program by reducing caseloads and saving the state
money, but it would do so through a mechanism of judicial invention rather than the
forward-looking incentive system envisioned by the legislature.
Furthermore, it would be difficult to award earned-compliance credits for
past compliance, because parole officers are unlikely to have kept records designed to
implement a program that did not yet exist. Even if some parole officers kept sufficiently
detailed records, it is highly unlikely that all of them did, which would mean that a
parolee’s entitlement to earned-compliance credits would turn on the idiosyncracies of
18
Collins v. State, 494 P.3d 60, 67 (Alaska App. 2021).
–9– 2717
their parole officer’s record-keeping process, rather than their own good behavior. We
doubt the legislature intended to enact such an arbitrary program.19
Conclusion
For the reasons explained in this opinion, we hold that the parole earned-
compliance credits program only applies to time spent on parole after AS 33.16.270’s
effective date of January 1, 2017. The superior court’s grant of summary judgment to
the State correctly rejected Mosquito’s request for retroactive application of the parole
earned-compliance credits statute. Accordingly, the decision of the superior court is
AFFIRMED.
19
Mosquito argues that the rule of lenity, i.e., the rule that ambiguous penal statutes
should be construed against the government, applies here. But “this rule . . . comes into play
only when, after employing normal methods of statutory construction, the legislature’s intent
cannot be ascertained or remains ambiguous.” DeNardo v. State, 819 P.2d 903, 907 (Alaska
App. 1991). Because AS 33.16.270’s applicability is not ambiguous after standard principles
of statutory construction are applied, the rule of lenity does not apply.
– 10 – 2717