Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
PER CURIAM.
Adam M. Milazzo was released from custody prior to his trial on numerous charges. The superior court imposed various conditions of release, including conditions requiring Milazzo to be in the presence of a third-party custodian and to submit to electronic monitoring that detected his movement and consumption of alcohol.
Milazzo was ultimately convicted at trial, and he asked the superior court to credit the time he was on release toward his sentence of imprisonment, asserting that the conditions of his release "approximated incarceration." The superior court denied the motion. Because we agree with the superior court that the time Milazzo spent out of custody did not qualify for credit against his sentence, we affirm the trial court's ruling.
Facts and proceedings
Milazzo was convicted of second-degree murder,1 assault in the third and fourth degrees,2 first-degree eluding a peace officer,3 and driving under the influence4 for hitting another vehicle and killing the driver while fleeing from the police.
Before his trial, Milazzo was released on bail. The superior court imposed conditions of release requiring Milazzo to be in the presence of a third-party custodian, to not possess or consume alcohol, to not use drugs, to have no alcohol in his residence, and to submit to urinalysis and blood testing. The court also prohibited Milazzo from being in any place where alcohol was the primary item for sale, and he was subjected to electronic monitoring to track his movement and detect if he consumed alcohol. Approximately eight months later the trial court altered the release conditions to allow Milazzo to leave his third-party custodian to work on the North Slope, but Milazzo was not able to secure employment.
Milazzo spent approximately 500 days on release while awaiting his trial. After his conviction, he filed a motion asking the superior court to credit these days against his sentence, arguing that the conditions of his release approximated incarceration and that he was therefore entitled to credit pursuant to Nygren v. State.5 In support of his motion, he included an affidavit from his mother in which she set forth additional conditions she had imposed on her son as his primary third-party custodian. Superior Court Judge Michael Spaan denied the motion, concluding that Milazzo did not satisfy the criteria of Nygren and that the court was prohibited by statute from awarding Milazzo credit for the time he had served. Milazzo appeals these rulings.
Why we conclude Milazzo is not entitled to credit against his sentence for the time he was on release from custody
Alaska Statute 12.55.025(c) provides, in pertinent part, that a defendant is entitled to credit against his sentence for time spent in custody pending trial if the detention was in connection with the offense for which the sentence was imposed. The general test for whether a defendant is entitled to credit under this statute is whether the conditions of release imposed "substantial restrictions on [the defendant's] freedom of movement and behavior."6 In Nygren, this Court ruled that a defendant is only entitled to credit for time spent on release in a non-prison setting if the conditions of release "approximat[ed] those experienced by one who is incarcerated."7
Milazzo argued in superior court that he was entitled to credit against his sentence for the time he spent on bail release because the conditions of his release satisfied the Nygren test. The superior court denied Milazzo's motion for two independent reasons: because the Nygren criteria were not satisfied and because Milazzo was sentenced after July 1, 2007, when a new statute, AS 12.55.027, went into effect prohibiting such credit.
Under AS 12.55.027(d), a court is prohibited from granting credit against a sentence of imprisonment for time a defendant spends on release in a private residence or on electronic monitoring. This statute applies to credit toward any sentence imposed on or after July 1, 2007, "regardless of when the criminal act was committed."8 Milazzo was released from custody several months before this statute went into effect.
On appeal, Milazzo claims that the superior court erred when it applied AS 12.55.027(d) to his request for credit against his sentence because doing so violated the prohibition against ex post facto laws. As we explain below, we agree with the superior court that Milazzo did not satisfy the Nygren test — the test for jail credit that governed prior to the July 1, 2007 statutory changes. We therefore do not need to address his claim that the superior court erroneously applied AS 12.55.027(d).
To conclude that Milazzo's pre-trial release did not qualify for Nygren credit, the superior court relied on this Court's decision in Matthew v. State.9 In Matthew, the superior court released the defendant from custody after imposing conditions that prohibited him from consuming alcohol, confined him to his home or to his work (or to commuting between those locations), and required that he be monitored by an electronic bracelet system that would detect his location and whether he had consumed alcohol.10 The superior court denied Matthew's motion for credit toward his sentence for the time he spent on electronic monitoring.
On appeal, we concluded that, even with the conditions of release imposed by the court, Matthew's daily activities were not encumbered by "the kind of institutional rules and routines that are the hallmark of correctional or residential rehabilitative facilities."11 We explained that Matthew's conditions did not subject him to the structured and regimented lifestyle experienced by defendants who are incarcerated or in residential treatment facilities.12 We also concluded that as long as Matthew was at home or at work, his activities were not restricted (except for consuming alcohol) and he was free to associate with whomever he wanted.13 We thus concluded that Matthew's conditions of release did not subject him to "restrictions approximating those experienced by one who is incarcerated."14
Milazzo claims that his case is distinguishable from Matthew because his freedom of movement was "significantly more restrained" than Matthew's and approximated incarceration. Milazzo asserts that the superior court imposed conditions of release that were intended to restrict his movement and behavior "as much as possible" and that his third-party custodian (his mother) restricted his behavior further.
We conclude that the restrictions on Milazzo's movement and behavior are not materially different from those in Matthew. It is true that while both Matthew and Milazzo were required to submit to electronic monitoring, Milazzo was also required to be in the presence of a third-party custodian. However, even with this restriction, Milazzo was not prohibited from moving throughout the community and engaging in a variety of activities. Milazzo was not "subjected to restrictions approximating those experienced by one who is incarcerated."15
Milazzo contends that, in addition to the conditions of release imposed by the superior court, he is entitled to rely on the conditions imposed by his third-party custodian (his mother) when arguing that his restrictions approximated incarceration. We do not need to resolve this claim because even if those additional conditions are considered, we conclude that the totality of Milazzo's restrictions do not satisfy the Nygren test.
Conclusion
The superior court did not err when it denied Milazzo's motion to award him credit toward his sentence for the time he was not in custody. The judgment of the superior court is therefore AFFIRMED.
