OPINION
CONNOR, Justice.
This appeal presents the question of whether time spent in a residential treatment house as a condition of probation should be credited towards the sentence imposed after the probation is revoked. Additionally, appellant challenges his sentence as being excessive.
While awaiting trial on the charge of burglary not in a dwelling, Lock escaped from the state jail annex. He was recaptured, and pled guilty to escape and to the burglary charge. Sentencing was deferred for two years and Lock was ordered placed on probation. As a special condition of probation, Lock was ordered to enroll in Family House, a residential rehabilitation program. He entered the program on May 4, 1977, and escaped on October 10, 1977. Upon recapture, three days later, Lock was ordered to spend the remainder of his term of probation in Akeela House, another rehabilitation program.
He entered this program on January 25, 1978, and escaped on March 14, 1978. He was returned to jail on March 23, 1978. His probation was subsequently revoked and he was sentenced to the maximum term on each of the original offenses: five years for burglary not in a dwelling,
and three years for escape,
with the sentences to run consecutively. The sentencing judge ordered that the 391 days Lock spent in jail be credited towards his sentence, but refused to give credit for the additional 207 days spent in Family House and Akeela House.
Lock contends that he has both a statutory and a constitutional right to credit for time served at Family House and Akeela House. Initially, he argues that failure to give such credit violates his rights under the double jeopardy clause of both the federal and state constitutions.
By being sentenced to the maximum term for the original offenses, without receiving credit-for time served on probation at the Family and Akeela Houses, Lock maintains, he was given a sentence in excess of the maximum allowed by statute, and is thus subjected to multiple punishment in violation of his right against double jeopardy.
The state urges that this case should be controlled by
Paul v. State,
560 P.2d 754
(Alaska 1977), in which we rejected the contention that the constitutional proscription against multiple punishment requires that credit be given for time spent on probation. In
Paul,
however, no claim was made that the defendant had been sentenced in excess of the statutory maximum by being denied credit for the period of probation. Rather, Paul argued that the reinstatement of his suspended sentence upon revocation of probation without granting credit for his probation time constituted an increase in the sentence originally imposed in violation of his right not to be placed in double jeopardy.
The contention that the double jeopardy clause mandates that credit be given for time spent on probation has been rejected by a number of courts on the premise that probation does not constitute “punishment”.
See e. g., Hall v. Bostic,
529 F.2d 990 (4th Cir. 1975),
cert. denied,
425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976);
Anglin v. Johnston,
504 F.2d 1165 (7th Cir. 1974),
cert. denied,
420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975);
Thomas v. United States,
327 F.2d 795 (10th Cir. 1964),
cert. denied,
377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed.2d 1051 (1964);
Jett v. Leverette,
247 S.E.2d 469 (W.Va.1978);
State v. Saavedra,
5 Conn.Cir. 367, 253 A.2d 677 (1968).
Appellant contends that the rationale of these cases should not be extended in the context of this case, where time on probation is spent under the restrictions of a rehabilitation program. Although appellant’s argument is meritorious, we do not find it necessary to pass on this constitutional question, since there is another ground for decision.
The other basis of Lock’s argument is that under AS 11.05.040(a) he has a statutory right to credit for time served at Family House and Akeela House. AS 11.05.040(a) provides:
“When a person is sentenced to imprisonment, his term of confinement begins from the day of his sentence. A person who is sentenced shall receive credit toward service of his sentence for time spent in custody pending trial or sentencing, or appeal, if that detention was in connection with the offense for which sentence was imposed. The time during which the person is voluntarily absent from the penitentiary, reformatory, jail, or from the custody of an officer after his sentence, shall not be estimated or counted as a part of the term for which he was sentenced.”
Lock’s position is that “in custody” under this statute connotes more than time spent in traditional penal institutions, and should be read broadly to include other types of restrictive environments such as certain therapeutic programs and halfway houses. We agree.
In refuting Lock’s position, the state places heavy reliance on
Paul v. State,
560 P.2d at 758, where we held that upon revocation of probation the court is empowered under AS 12.55.090(b) “to order execution of the sentence up to but not beyond the maximum period originally specified” without crediting the period of probation against the original suspended sentence.
Id.
at 758,
quoting
from dictum in
Jackson v. State,
541 P.2d 23, 26 (Alaska 1975). We think
Paul
is distinguishable from the case at bar in two respects.
First, in
Paul,
the trial court, pursuant to AS 12.55.080,
actually imposed sentence but suspended the execution of a portion thereof. Thus, Paul could not claim that the time he spent on probation was “pending . . . sentencing” within AS 11.-05.040. Here, the
imposition
of sentence was suspended pursuant to AS 12.55.-085(a),
but could be pronounced upon revocation of probation “at any time after the suspension of the sentence within the longest period for which the defendant might have been sentenced.”
AS 12.55.085(e).
See Cochran v. State,
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OPINION
CONNOR, Justice.
This appeal presents the question of whether time spent in a residential treatment house as a condition of probation should be credited towards the sentence imposed after the probation is revoked. Additionally, appellant challenges his sentence as being excessive.
While awaiting trial on the charge of burglary not in a dwelling, Lock escaped from the state jail annex. He was recaptured, and pled guilty to escape and to the burglary charge. Sentencing was deferred for two years and Lock was ordered placed on probation. As a special condition of probation, Lock was ordered to enroll in Family House, a residential rehabilitation program. He entered the program on May 4, 1977, and escaped on October 10, 1977. Upon recapture, three days later, Lock was ordered to spend the remainder of his term of probation in Akeela House, another rehabilitation program.
He entered this program on January 25, 1978, and escaped on March 14, 1978. He was returned to jail on March 23, 1978. His probation was subsequently revoked and he was sentenced to the maximum term on each of the original offenses: five years for burglary not in a dwelling,
and three years for escape,
with the sentences to run consecutively. The sentencing judge ordered that the 391 days Lock spent in jail be credited towards his sentence, but refused to give credit for the additional 207 days spent in Family House and Akeela House.
Lock contends that he has both a statutory and a constitutional right to credit for time served at Family House and Akeela House. Initially, he argues that failure to give such credit violates his rights under the double jeopardy clause of both the federal and state constitutions.
By being sentenced to the maximum term for the original offenses, without receiving credit-for time served on probation at the Family and Akeela Houses, Lock maintains, he was given a sentence in excess of the maximum allowed by statute, and is thus subjected to multiple punishment in violation of his right against double jeopardy.
The state urges that this case should be controlled by
Paul v. State,
560 P.2d 754
(Alaska 1977), in which we rejected the contention that the constitutional proscription against multiple punishment requires that credit be given for time spent on probation. In
Paul,
however, no claim was made that the defendant had been sentenced in excess of the statutory maximum by being denied credit for the period of probation. Rather, Paul argued that the reinstatement of his suspended sentence upon revocation of probation without granting credit for his probation time constituted an increase in the sentence originally imposed in violation of his right not to be placed in double jeopardy.
The contention that the double jeopardy clause mandates that credit be given for time spent on probation has been rejected by a number of courts on the premise that probation does not constitute “punishment”.
See e. g., Hall v. Bostic,
529 F.2d 990 (4th Cir. 1975),
cert. denied,
425 U.S. 954, 96 S.Ct. 1733, 48 L.Ed.2d 199 (1976);
Anglin v. Johnston,
504 F.2d 1165 (7th Cir. 1974),
cert. denied,
420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975);
Thomas v. United States,
327 F.2d 795 (10th Cir. 1964),
cert. denied,
377 U.S. 1000, 84 S.Ct. 1936, 12 L.Ed.2d 1051 (1964);
Jett v. Leverette,
247 S.E.2d 469 (W.Va.1978);
State v. Saavedra,
5 Conn.Cir. 367, 253 A.2d 677 (1968).
Appellant contends that the rationale of these cases should not be extended in the context of this case, where time on probation is spent under the restrictions of a rehabilitation program. Although appellant’s argument is meritorious, we do not find it necessary to pass on this constitutional question, since there is another ground for decision.
The other basis of Lock’s argument is that under AS 11.05.040(a) he has a statutory right to credit for time served at Family House and Akeela House. AS 11.05.040(a) provides:
“When a person is sentenced to imprisonment, his term of confinement begins from the day of his sentence. A person who is sentenced shall receive credit toward service of his sentence for time spent in custody pending trial or sentencing, or appeal, if that detention was in connection with the offense for which sentence was imposed. The time during which the person is voluntarily absent from the penitentiary, reformatory, jail, or from the custody of an officer after his sentence, shall not be estimated or counted as a part of the term for which he was sentenced.”
Lock’s position is that “in custody” under this statute connotes more than time spent in traditional penal institutions, and should be read broadly to include other types of restrictive environments such as certain therapeutic programs and halfway houses. We agree.
In refuting Lock’s position, the state places heavy reliance on
Paul v. State,
560 P.2d at 758, where we held that upon revocation of probation the court is empowered under AS 12.55.090(b) “to order execution of the sentence up to but not beyond the maximum period originally specified” without crediting the period of probation against the original suspended sentence.
Id.
at 758,
quoting
from dictum in
Jackson v. State,
541 P.2d 23, 26 (Alaska 1975). We think
Paul
is distinguishable from the case at bar in two respects.
First, in
Paul,
the trial court, pursuant to AS 12.55.080,
actually imposed sentence but suspended the execution of a portion thereof. Thus, Paul could not claim that the time he spent on probation was “pending . . . sentencing” within AS 11.-05.040. Here, the
imposition
of sentence was suspended pursuant to AS 12.55.-085(a),
but could be pronounced upon revocation of probation “at any time after the suspension of the sentence within the longest period for which the defendant might have been sentenced.”
AS 12.55.085(e).
See Cochran v. State,
586 P.2d 175, 177 (Alaska 1978);
Jackson v. State,
541 P.2d at 26. The time Lock spent on probation in Family House and Akeela House was therefore literally “pending . . . sentencing” within the language of AS 11.05.040.
More importantly,
Paul
is distinguishable as to the degree of restraints imposed as conditions of probation. Although certain limited restrictions were imposed on Paul while on probation, “the court, in an effort to rehabilitate Mr. Paul, permitted him to remain at liberty.” 560 P.2d at 758. As conditions of probation, Paul was ordered to remain on his good behavior and “to' make
reasonable efforts
to complete a course in vocational training.” [emphasis added]
Id.
at 755. These restrictions did not interfere in any significant way with Paul’s existing life. He was in no sense physically confined and was still free to make his own decisions regarding where to live and work, and with whom to associate. As such, Paul’s restrictions could “in no manner ... be equated to serving a period of incarceration.”
Id.
at 758.
We think that under certain circumstances the restraints imposed as conditions of probation may be so substantial that the defendant is, in legal effect, “in custody” although on probation. Confinement need not be penal in nature to be custodial.
McNeil v. Director of Patuxent Institution,
407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972). Nor need the defendant be confined to a prison or jail in order to be “in custody” within the meaning of AS 11.05.040. Custodial confinement takes many forms and has been interpreted to include time spent in a mental hospital,
a juvenile detention center,
a diagnostic
center,
a hospital,
a halfway house,
and a hotel room.
The West Virginia Supreme Court, in holding that a parolee is entitled to credit towards his sentence for time spent on parole prior to revocation, recognized that:
“Time spent serving a sentence does not depend on the manner or location in which it is served. There are, to be sure, different degrees of confinement recognized in any penal system. The fact that some confinements are less restrictive than others should have no bearing in computing the time served on the sentence.”
Conner v. Griffith,
238 S.E.2d 529, 534 (W.Va.1977) (in
Jett v. Leverette,
247 S.E.2d 469, 470 (W.Va.1978), the court declined to extend
Conner
to probation). Similarly, in construing California’s statute
governing credit for time spent “in custody” prior to commencement of sentence, the court in
People v. Rodgers,
79 Cal.App.3d 26, 144 Cal.Rptr. 602, 605 (Cal.App.1978) observed:
“[I]t is clear that the word ‘custody’ connotes a concept quite different from incarceration or imprisonment. Further enlightenment regarding the plain meaning of ‘custody’ in the context of criminal law may be drawn by analogy to use of that concept in habeas corpus proceed-mgs. Traditionally the writ served the function of releasing a person from actual restraint, and early cases would only consider granting it to one in actual physical detention. Now, of course, the concept of ‘custody’ has been expanded, so that anyone subject to restraints not shared by the ‘public generally’ may be heard to seek the writ, for example, persons free on bail, on their own recognizance, on parole, on probation, and the like.” (citations omitted)
The
Rodgers
court concluded that the defendant was entitled to credit upon his sentence for the time he spent on probation in Delancey Street, a halfway house rehabilitation program, even though the house “is not enclosed by locked fences; the doors are not locked during the day; there are no bars on the windows; there are no armed or unarmed guards.”
Id.
144 Cal.Rptr. at 604.
The United States Supreme Court has made it clear that one may not be deprived of the protections guaranteed to those incarcerated in a traditional penal institution, simply because confinement is for purposes of “treatment” rather than punishment.
McNeil v. Director of Patuxent Institution,
407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972);
Jackson v. Indiana,
406 U.S. 715, 92
S.Ct. 1845, 32 L.Ed.2d 435 (1972). That Court established in
Jackson
that an accused does not forfeit his due process rights when committed to a mental hospital pending a determination of competency to stand trial. In
McNeil,
the Court concluded that the defendant had been unconstitutionally confined in excess of the sentence imposed by the trial judge, despite the state’s assertions that McNeil was being held for “treatment”. We too find unconvincing the state’s contention that commitment which is not penal in character does not constitute time spent in custody.
We are also unpersuaded by the state’s assertion that a probationer cannot be considered “in custody” when he “voluntarily” accepts confinement as a condition of his probation. When faced with the choice between two years probation in a rehabilitation program and a potential sentence of eight years imprisonment, it can hardly be said that Lock voluntarily placed himself in Family House.
In enacting AS 11.05.040 we believe that the legislature intended that credit be given, upon sentencing, for time spent in special facilities and treatment programs.
Such an interpretation is consistent with the penal objective of rehabilitation which is expressed in the Alaska Constitution. See
State v. Chaney,
477 P.2d 441, 444 (Alaska 1970). The language of AS 11.05.040 is in accord with § 3.6(a) of the American Bar Association’s Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1971),
which proposes that credit be given “for time spent in custody . . . pending sentence.” The commentary to this section states that it “is designed to assure that credit is awarded in instances where special treatment is imposed as a result of the conduct which underlies the criminal charge.” Commentary (b) at 192.
Concerning another section of the ABA Standards, relating to commitment to special facilities and treatment programs as part of the sentencing process, the commentators note: “Credit should likewise be given against any prison term which is served after specified treatment has been provided. Credit in [this] contexts] would be required by section 3.6.” American Bar Association Standards Relating to Sentencing Alternatives and Procedures, § 2.6, comment (b) at 115.
We conclude that upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior. In the case at bar, there is no evidence on the record regarding the requirements of the Family House and Akeela House programs or the restrictions actually imposed on Lock while participating in those programs. While
placing Lock on probation, however, the sentencing judge described Family House Program as “pretty tough” and “much tougher than . . serving time in jail.” In addition, the sentencing judge warned Lock that he would be returned to jail if he did not comply with the program’s rules or left the home without permission. These admonishments, coupled with the fact that Lock “escaped” from both Family House and Akeela House and had to be “recaptured,” sufficiently establishes that he was subjected to severe restraints on his freedom of movement. Therefore, we conclude that AS 11.05.040(a) compels that Lock be given credit against his sentence for the 207 days spent in Family House and Akeela House.
In reaching our decision, we are aware that denying credit for time in a treatment program would have the desirable effect of encouraging a probationer to complete the program and refrain from violating the terms of his probation. However, this deterrent effect does not outweigh the unfairness of requiring a probationer, because he is considered amenable to rehabilitation, to participate in a treatment program which imposes substantial restraints on his liberty, and then upon a violation of his probation, which may be trivial in nature, imposing a sentence of imprisonment for the original offense, undiminished by the time spent in the treatment program.
Appellant’s other contention, that his sentence is excessive, is not persuasive. Lock was sentenced to the maximum term for both offenses for which he was convicted, with both sentences to run consecutively. We have recognized that “maximum sentences generally should not be imposed ‘without some foundation for characterizing a defendant as the worst type of offender.’ ”
State v. Wortham,
537 P.2d 1117, 1120 (Alaska 1975);
Galaktionoff v. State,
486 P.2d 919, 924 (Alaska 1971). Factors to consider in determining whether a defendant fits within this characterization include “prior criminal convictions, age, military records, employment history, drug or alcohol addiction, presentence report evaluations and recommendations, and behavior which has been considered to demonstrate an antisocial nature or dangerous propensities which pose a clear risk to the public.”
State v. Wortham,
537 P.2d at 1120.
Appellant is 36 years old. He has an extensive history of criminal involvement
and anti-social behavior. His work record is sporadic largely because he has been in numerous penal institutions since the age of 16. Lock admits to being an alcoholic, but attempts at treatment have been unsuccessful. Presentence reports and evaluations describe Lock as “anti-social” and a “fairly high risk in terms of committing further criminal acts.”
The burglary offense was a breaking and entering of a store near Houston, Alaska. Assorted foodstuffs and other items were taken with a value of approximately $600. Although the amount of the property taken was not substantial, Lock’s extensive past history of theft offenses is persuasive in our determination that the maximum sentence is appropriate.
As for the escape conviction, Lock was given the maximum sentence of three years.
By escaping first from jail, then from Family House, and finally from Akee-la House, Lock has shown himself to be unamenable to rehabilitation. We cannot find that the maximum sentence was clearly mistaken when the escape conduct was recidivistic and a prior record of significant anti-social behavior had been shown.
Further, the superior court did not act incorrectly in having these maximum sentences run consecutive to each other. We have held that “the use of consecutive sentences is particularly appropriate in cases such as this, i. e., where one escapes while incarcerated on another charge.”
Walton v. State,
568 P.2d 981, 986 (Alaska 1977).
In view of the foregoing facts, we are unable to find that the judge was clearly mistaken in characterizing appellant as the worst type of offender.
Nicholas v. State,
477 P.2d 447, 449 (Alaska 1970). Thus we affirm Lock’s sentence, but order that the 207 days he spent in Family House and Akeela House be credited against his sentence.
AFFIRMED IN PART, BUT MODIFIED.