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State v. Fortuny3/8/2002
Brent Fortuny drove while he was intoxicated and injured someone else. He ultimately pleaded no contest to third-degree assault (a class C felony) and misdemeanor driving while intoxicated. While awaiting sentencing, Fortuny spent four months at Genesis House, a residential alcoholism treatment facility. The question is whether Fortuny should receive credit against his sentence for some or all of the time he resided at Genesis House.
For the past thirty-five years, Alaska law has granted defendants credit against their sentence "for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed". Almost twenty years ago, in Nygren v. State, 658 P.2d 141 (Alaska App. 1983), this court expanded a defendant's right to receive "credit for time served" when we held that defendants should receive credit against their sentence for time spent in a treatment facility as a condition of release if the restrictions imposed by that facility "approximat those experienced by one who is incarcerated".
Nygren contains the following description of the types of restrictions that will normally be deemed equivalent to incarceration:
esidents are invariably there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to twenty-four hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission. Id. at 146.
Genesis House is a residential treatment facility for alcohol and substance abuse. The facility is supervised twenty-four hours a day by its staff. Residents must not leave the facility without permission, they must abide by a set of house rules, and they must obey a curfew at night. Residents are subjected to hourly bed checks after curfew, as well as random checks during the day. Residents are also subjected to random urine and breath tests to make sure that they are not consuming alcohol or controlled substances.
At first blush, Genesis House would seem to fit the Nygren criteria, and Fortuny would seemingly be entitled to credit against his sentence for the four months he spent there (February 20, 2000 through June 20, 2000). But there are two wrinkles in the situation.
First, Fortuny did not enter Genesis House pursuant to a court order; instead, he voluntarily entered the treatment program. This situation changed on April 4, 2000, when the court ordered Fortuny to continue the program at Genesis House as a condition of release. But the State argues that Fortuny is not entitled to Nygren credit for the 43 days from February 20th through April 3rd (the last day of Fortuny's voluntary residence at Genesis House).
Second, Fortuny did not spend twenty-four hours a day at Genesis House. Rather, he was granted work release.
At the discretion of the Genesis House staff, some of its residents are allowed to leave the facility to attend work. Patients who are granted work release must fill out a weekly work verification form. In this form, the patient outlines the dates and hours they will be gone, and the patient supplies the names, positions, and telephone numbers of the people who can verif
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