Medina v. State

418 P.3d 861

Opinion

Judge WOLLENBERG.

Edwin Montal Medina was ordered into residential treatment while he awaited the adjudication of a petition to revoke his probation. Medina's probation was ultimately revoked, but the court released him back to probation without imposing a sentence of imprisonment. The question presented in this appeal is whether Medina was later entitled to seek credit for the time he spent in residential treatment after the court sentenced him to a term of imprisonment in connection with a subsequent probation revocation in the same case. For the reasons explained in this opinion, we conclude that the answer is yes.

Because we conclude that the answer is yes, we direct the superior court to reach the merits of Medina's request. That is, we direct the court to evaluate Medina's request under *862 AS 12.55.027, the statute that sets out the criteria governing the award of jail credit for time spent in treatment.

Underlying facts and proceedings

In 2014, Edwin Montal Medina was on supervised probation in two cases. After the State alleged that Medina violated his probation in both cases, the superior court ordered Medina to enter residential treatment as a condition of bail pending resolution of the petitions to revoke his probation. Medina entered residential treatment at the Salvation Army Adult Rehabilitation Center.

Medina resided at the Salvation Army program for 184 days, and he successfully completed the program. At a subsequent hearing, the parties announced a plea agreement: because Medina had successfully completed treatment, he would admit the allegations, no term of incarceration would be imposed, and Medina would return to probation. The court accepted the agreement of the parties, and the court resolved the petitions to revoke probation by returning Medina to probation without imposing any portion of his suspended sentence. Medina did not, at that time, ask the court for credit for the time he had spent in residential treatment.

In 2015, the State again alleged that Medina had violated his probation. Ultimately, the parties reached a resolution calling for the imposition of a composite 150 days of Medina's previously suspended sentences.

Medina's attorney then moved for credit against this composite term of incarceration for the time Medina had spent at the Salvation Army residential treatment program in 2014. In support of this request, Medina's attorney relied on AS 12.55.027, the statute governing credit for time spent in treatment.

The State opposed the request, relying on a different statute, AS 12.55.025(c). Under AS 12.55.025(c), a defendant is entitled to "credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed[.]" The State argued that the time Medina spent in treatment in 2014 was not served "in connection" with his later 2015 probation violations, and thus, AS 12.55.025(c) precluded credit. 1

The superior court denied Medina's request for credit. The court did not reach the question of whether the conditions of Medina's stay in the treatment program entitled him to credit under AS 12.55.027. Rather, adopting the State's argument regarding AS 12.55.025(c), the court ruled as a legal matter that Medina was not entitled to the requested credit because the time he had spent at the Salvation Army program was served in connection with his earlier 2014 probation violations, not the 2015 probation violations for which he was being sentenced. The court concluded that granting credit for Medina's earlier treatment would effectively give Medina a reserve of credit for use against any sentence later imposed for a subsequent probation violation.

Medina appeals the court's ruling.

A note on the interplay between AS 12.55.025(c) and AS 12.55.027

Alaska Statute 12.55.025(c) entitles defendants to "credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed[.]" Relying on this statute, the superior court denied Medina's request for credit against his sentence for time previously spent in residential treatment.

As an initial matter, we question whether AS 12.55.025(c) applies to Medina's request for credit. In a 1980 case, Lock v. State , the Alaska Supreme Court first recognized a defendant's entitlement to credit for time spent in substantially restrictive residential treatment *863 as a condition of probation. 2 Lock argued that the phrase "in custody" as used in AS 11.05.040(a)-the precursor to AS 12.55.025(c) -should be interpreted broadly to include therapeutic programs in which the conditions of residence are so restrictive that they approximate custody. 3 The supreme court agreed. 4

In a line of cases beginning with Nygren v. State , we then applied the reasoning of Lock to requests for credit for time spent in residential treatment as a condition of bail. 5 We interpreted AS 12.55.025(c) (which is substantially similar to former AS 11.05.040(a) ) as requiring a court to grant a defendant credit for time spent in residential treatment under court order if the defendant was subject to restrictions approximating incarceration. 6

Then, in 2007, the Alaska Legislature enacted a specific statute defining those situations in which a defendant may receive credit for time spent in non-prison treatment programs. 7 This statute, AS 12.55.027, supplanted the rule we had followed in the Nygren cases for determining whether a defendant's stay in a treatment program was sufficiently restrictive to entitle that person to credit. 8 Because AS 12.55.027 authorizes credit for treatment programs regardless of whether those programs would qualify as "custody" under AS 12.55.025(c), it is unclear whether we should look to AS 12.55.025(c) to answer other procedural questions surrounding the award of credit under such circumstances.

We need not determine the precise interplay between AS 12.55.025(c) and AS 12.55.027 because even assuming AS 12.55.025(c) applies to Medina's request for credit, we disagree with the superior court that this statute precludes credit under the circumstances of this case.

Why we reverse the superior court's ruling

We have recognized that AS 12.55.025(c) requires a sentencing court to grant credit for time served " 'in connection' with the same offense." 9 The superior court's ruling in this case was premised on the notion that Medina's 2014 probation violations and his 2015 probation violations were separate "offenses" for purposes of AS 12.55.025(c). But this premise is contrary to Alaska law.

Probation revocation proceedings are not independent criminal proceedings. 10 Rather, they are a continuation of the original criminal proceedings. 11 Accordingly, "[p]robation revocation ... amounts to continuing punishment for the crime for which probation was originally imposed." 12

This continuity is reflected in the responsibilities of the sentencing judge at a probation revocation hearing. When a judge is deciding what portion of a previously suspended term of imprisonment, if any, to impose, the judge must consider all available sentencing information, including "the seriousness of the original offense." 13 And when a judge determines that a probationer can *864 no longer benefit from supervision, the judge "must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the new information at the initial sentencing." 14

Other courts, including the United States Supreme Court, have similarly construed revocation and re-imprisonment for a probation or parole violation as punishment for the underlying criminal offense. 15

Thus, probation violations are not new "offenses," separate and independent from one another and from the underlying criminal conviction. Rather, probation revocations relate back to the underlying criminal offense, constituting "continuing punishment for the crime for which probation was originally imposed." 16

The superior court's reliance on AS 12.55.025(c) to deny Medina credit was therefore misguided. Both Medina's 184 days in treatment in 2014 and his 150-day term of incarceration in 2015 were "in connection with" his underlying criminal offenses. 17 Alaska Statute 12.55.025(c) did not bar credit, even though Medina's time in treatment occurred while he awaited adjudication of the earlier 2014 petition to revoke probation. 18

The opposite conclusion would have far-reaching implications, not only for those in residential treatment but also for those incarcerated. Because AS 12.55.025(c) does not distinguish between custody that results from residential treatment and custody that results from incarceration in a correctional institution, interpreting AS 12.55.025(c) to preclude credit for earlier excess time spent in treatment implies that credit should be likewise precluded for earlier excess time in jail in the same case.

Thus, under the trial court's rationale, a person who served excess time in jail while awaiting sentencing on a first probation violation would not be entitled to credit for that excess time when a later sentence was imposed for a second probation violation in the same case, since the excess time was not "in connection" with the first disposition hearing. But if this person later received the balance of his suspended sentence, without any credit for the excess prior service, that person would serve a sentence longer than his original sentence-an outcome that would raise significant constitutional issues. 19 Other courts have rejected this outcome. 20

*865 Or, extending this logic further, a person who remained incarcerated on a new criminal charge prior to trial because of an inability to make bail, but who ultimately resolved his case through a plea agreement for an entirely suspended sentence, would not receive any credit against his suspended time if it were later imposed because of probation violations. This is precisely the type of inequity that AS 12.55.025(c) was designed to avoid. 21

Our conclusion that Medina is entitled to credit (assuming he meets the requirements of AS 12.55.027 ) is bolstered by considerations of fairness and equity. Putting aside the formal question of whether credit is constitutionally mandated for time spent in restrictive rehabilitative programs (an issue we do not decide), 22 we agree with the Alaska Supreme Court's statement in Lock that there is a certain "unfairness [in] requiring a probationer ... to participate in a treatment program which imposes substantial restraints on his liberty, and then upon a violation of his probation ... imposing a sentence of imprisonment for the original offense, undiminished by the time spent in the treatment program." 23 Accordingly, the Lock court held that a person is entitled to credit for time spent in sufficiently restrictive treatment as a condition of probation on a suspended imposition of sentence, notwithstanding the fact that granting such credit essentially allows for some level of immunity against a sentence for future probation violations. 24

Moreover, under the superior court's ruling in Medina's case, entitlement to credit would essentially turn on the precise wording of a disposition, leaving credit open to arbitrary and unfair manipulation. Whether a probationer received credit against his sentence would hinge, in part, on whether the defense attorney requested a "time served" rather than a "no time imposed" disposition. Indeed, the State faults Medina's attorney for failing to do just that, arguing: "Had Medina bargained for, and had the court ordered, Medina to be sentenced to 'time served,' he may be entitled to credit for the time spent in treatment because he would have had a sentence imposed for the 2014 probation violations." But a defendant's entitlement to credit should not turn on such semantic distinctions. 25

Ultimately, we conclude that any problem of "banking" credit against future sentences in the same case is outweighed by the fairness concerns we have explained here, as well as by the risk that defendants will improperly serve sentences longer than originally imposed. We therefore reverse the superior court's ruling that Medina is not entitled to seek credit for the time he spent at the Salvation Army program in 2014.

Why we remand for further consideration of Medina's request for credit under AS 12.55.027

Our conclusion that AS 12.55.025(c) does not bar credit under these circumstances *866 does not resolve this case. As discussed earlier, the Alaska Legislature has enacted AS 12.55.027, which sets out criteria for determining whether a defendant's time in treatment qualifies for jail credit. A court must evaluate a defendant's request for credit for treatment under AS 12.55.027 and determine whether the defendant's time in the treatment program qualifies for credit. The statute also contains a time frame within which a defendant must generally notify the court of his request for credit, although there is a "good cause" exception for requests that fall outside this time frame. 26

In the trial court, the State objected to Medina's request for credit based solely on the ground that AS 12.55.025(c) precluded credit. Because the superior court adopted the rule that the State proposed, the court did not evaluate the conditions of Medina's residence at the Salvation Army program and did not determine how much credit, if any, Medina should receive under AS 12.55.127. It is appropriate that these questions be resolved by the trial court in the first instance.

Conclusion

We REVERSE the trial court's order and REMAND this case to the trial court for reconsideration of Medina's request for credit under AS 12.55.027.

We do not retain jurisdiction of this case.

Order on Rehearing

The State of Alaska seeks rehearing of our decision in this case, Medina v. State, 418 P.3d 861, 2018 WL 1124440 (Alaska App. Mar. 2, 2018). In its petition, the State raises three primary contentions: (1) Medina's cases were not "pending trial, sentencing, or appeal" while he was in residential treatment and thus, he is not entitled to credit under AS 12.55.025(c) ; (2) our interpretation of the word "offense" in AS 12.55.025(c) conflicts with the use of that word elsewhere in the statutes and in our case law; and (3) our decision impermissibly allows a probationer to "bank" credit for use against a sentence imposed on a future probation violation. We address each contention in turn.

The State's argument that Medina's cases were not "pending trial, sentencing, or appeal" at the time he resided in the treatment program

The State first contests our characterization of a claim it initially raised in the superior court in opposition to Medina's request for credit. In footnote 1 of our opinion, we noted that the State had originally argued that Medina's time in residential treatment was not served while "pending trial, sentencing, or appeal," as required by AS 12.55.025(c) - but that the State had subsequently conceded this point. 1 The State argues that it did not concede this point.

We read the record differently than the State. The prosecutor filed two responses in the superior court contesting Medina's request for credit. In the first opposition, the prosecutor argued that Medina's cases were not "pending trial, sentencing, or appeal" while he was residing in the Salvation Army program - and that, as a result, Medina was not entitled to credit under AS 12.55.025(c). In the second, supplemental opposition, the prosecutor raised the only argument that it later pursued on appeal - that the time Medina spent in residential treatment in 2014 was not served "in connection with" the sentences the court imposed when it revoked Medina's probation in 2015.

We note that in the State's initial opposition, the prosecutor mistakenly stated that Medina violated his probation on December 17, 2014, after Medina had completed residential treatment. In fact, the record reflects a different procedural history: The State alleged that Medina violated his probation on May 20, 2014, and it filed petitions to revoke Medina's probation the following day. Medina then entered treatment on June 9, 2014, pursuant to the superior court's bail order, and Medina remained in the treatment program until December 10, 2014. December 17, 2014 is the date that the court resolved the 2014 petitions to revoke Medina's probation ( i.e ., *867 the adjudication and disposition date) - not the date that Medina violated his probation.

Medina's attorney outlined the correct dates in his reply to the State's initial response.

At the subsequent oral argument in the superior court on Medina's motion, the prosecutor conceded that Medina's attorney had correctly recounted the procedural history, and the prosecutor then effectively abandoned the argument he had made in his initial opposition:

Prosecutor : [T]he State will concede that the procedural history that [defense counsel] outlined appears to be correct. And there was a misunderstanding beforehand. It looks like the defendant was ordered to go to rehab on a prior PTRP, and that was unclear to the State prior to the motion work. It has since become ...

Court : The issue from your perspective, then, is just whether he's entitled to get credit for some previous time on the newer petitions to revoke, essentially.

Prosecutor. Yes, Your Honor.

The prosecutor then presented argument exclusively on the issue raised in his supplemental opposition (and later, on appeal) - that the time Medina spent in residential treatment in 2014 was not served "in connection with" the sentences the court later imposed in 2015.

Accordingly, we conclude that the State did concede, as a factual matter, that Medina's cases were pending resolution of petitions to revoke at the time he resided in the residential treatment program. And we conclude that this concession is supported by the record. We therefore decline to amend footnote 1 of our opinion.

The State next raises a new argument: that our decision in Triplett v. State precludes the award of credit to Medina. 2 But Triplett does not govern this case. First, the State's argument hinges on the factual premise we have already rejected - that Medina's cases were not "pending trial, sentencing, or appeal" while he was in residential treatment, as required by AS 12.55.025(c). In Triplett , we held that, under AS 12.55.025(c), a defendant is not entitled to jail credit for time spent in residential treatment as a condition of probation when that time was not served "pending trial, sentencing, or appeal." 3 (See our description of the holding in Triplett in State v. Walker , 283 P.3d 668 , 669-70 (Alaska App. 2012).)

In contrast, Medina did not spend time at the Salvation Army program as a condition of probation. Rather, Medina spent time at the Salvation Army as a condition of bail pending resolution of outstanding petitions to revoke his probation.

As the State itself recognizes later in its petition, Alaska case law treats probation revocation proceedings as sentencing hearings. 4 Accordingly, Medina's cases were "pending sentencing" at the time he resided at the Salvation Army program. 5 In Walker , we implicitly recognized that Triplett does not bar credit for time spent in residential *868 treatment under these circumstances. 6

Second, Triplett rested squarely on AS 12.55.025(c) ; we expressed no opinion on the application of AS 12.55.027, which was then a new statute governing the award of jail credit for time spent in treatment, since the new statute did not apply to Triplett's case. 7 But AS 12.55.027 does apply to Medina's case. And AS 12.55.027(e) makes it clear that a defendant may apply for jail credit for time spent in a treatment program as a "condition of bail release after a petition to revoke probation has been filed." Accordingly, we reject the State's argument regarding Triplett.

The State's challenges to our interpretation of the word "offense" in AS 12.55.025(c)

The State next argues that our interpretation of the word "offense" in AS 12.55.025(c) conflicts with the legislature's use of that term elsewhere in AS 12.55.025 and in other Alaska statutes. Specifically, the State contests our conclusion that "probation violations are not new 'offenses,' separate and independent from one another and from the underlying criminal conviction" but rather "relate back to the underlying criminal offense." 8

But the word "offense" can have different meanings, depending on the context. 9 As we explained in our opinion, our interpretation of "offense" in the context of AS 12.55.025(c) finds support in long-standing case law and principles of due process and equity. 10

The State raises a number of specific statutory comparisons. First, the State points to subsection (k) of AS 12.55.025. Alaska Statute 12.55.025(k) sets out a time frame within which a defendant must notify the court of a request for jail credit for time spent in a treatment program as a condition of bail "in connection with the offense for which the defendant is being sentenced" (generally, ten days before the sentencing hearing but in any event, absent good cause, no later than ninety days after the sentencing hearing). The State argues that our interpretation of the word "offense" in AS 12.55.025(c) necessarily means that the reference to "offense" in subsection (k) refers only to the underlying criminal offense and not to individual probation violations - an interpretation that the State contends would preclude requests for credit for time spent in residential treatment in connection with probation revocation proceedings, if the proceedings occur outside the timeline established in AS 12.55.025(k).

But the timeline for requesting credit for treatment served in connection with probation is set out in a different statute, AS 12.55.027(e). Alaska Statute 12.55.027(e) specifically establishes a time frame for notifying the court of a request for credit for time spent in treatment "either as a condition of probation or as a condition of bail release after a petition to revoke probation has been filed[.]" Our interpretation of "offense" in subsection (c) is therefore consistent with the meaning of that term in subsection (k).

Second, the State contends, in a single sentence, that its position - that the underlying conviction and the related probation violations are separate "offenses" - is supported by the legislature's addition of the following italicized language to AS 12.55.025(c) : "A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which sentence was imposed including a technical violation of probation as provided in AS 12. 55 .110 ." This language was added in 2016 and was effective on January 1, 2017, after the conclusion of the appellate briefing in this *869 case. 11 The State does not explain why the addition of this language supports its position. We therefore reject this claim.

In any event, we interpret this language as simply clarifying that a defendant is entitled to jail credit for the (often short) terms of incarceration specified in AS 12.55.110, even if the defendant has already completely served this term prior to the actual imposition of sentence under AS 12.55.110(c). 12 The State has provided no basis for concluding that the legislature intended, through the addition of this limited language, to effect a wholesale change to AS 12.55.025(c) or to revise long-standing case law regarding the relationship between the underlying criminal offense and probation revocation proceedings. 13

Third, the State points to AS 11.81.900(b)(40), which defines "offense" for purposes of the statutes in Title 11 as "conduct for which a sentence of imprisonment or fine is authorized; an offense is either a crime or a violation." The State puts much stock in the inclusion of the word "violation" in the definition of "offense," suggesting that it includes probation violations. But this argument overlooks the fact that the term "violation" is separately defined in AS 11.81.900 as "a noncriminal offense punishable only by a fine , but not by imprisonment or other penalty [.]" 14 This further underscores the point we made earlier: terms can be defined differently in different contexts.

The State's remaining claims

Finally, the State reiterates its argument that our decision would allow probationers to improperly "bank" a line of credit. But for the reasons explained in our opinion, we reject this claim. The State argues that we did not meaningfully distinguish our earlier decisions in Triplett, Marker v. State, 15 and State v. Berumen , 16 But none of those cases are factually similar to Medina's.

We reject the comparison to Triplett for the reasons we have already explained. We similarly reject any comparison to Marker . In Marker, we affirmed the denial of a defendant's request to credit excess jail time served on one case against the sentence imposed in a later case for an unrelated crime subsequently committed by Marker. 17 Here, Medina sought jail credit against a sentence imposed in the same cases for which he had previously served time in treatment.

And with respect to Berumen, an unpublished case, we note that the State relies exclusively on the dissenting opinion. The majority opinion is contrary to the State's claim. 18

Conclusion

For all these reasons, we adhere to the conclusion in our original opinion. Accordingly, the State of Alaska's petition for rehearing is DENIED.

Entered at the direction of the Court.

1 The State also initially argued that Medina's time in residential treatment was not served "pending trial, sentencing, or appeal," as required by AS 12.55.025(c). The State subsequently acknowledged that Medina's cases were in fact pending sentencing - i.e. , pending resolution of the 2014 petitions to revoke probation - when he resided at the Salvation Army program. The State therefore abandoned this claim. Cf. Triplett v. State , 199 P.3d 1179 , 1181 (Alaska App. 2008) (denying credit, under AS 12.55.025(c), for time spent in residential treatment when that time was not served "pending trial, sentencing, or appeal").

2 Lock v. State , 609 P.2d 539 , 545 (Alaska 1980).

3 Id. at 542 .

4 Id.

5 See Nygren v. State , 658 P.2d 141 (Alaska App. 1983) ; see also McKinley v. State , 275 P.3d 567 (Alaska App. 2012) (noting that the " Nygren line of cases" governed requests for jail credit for time spent in non-prison residential treatment for "close to a quarter-century").

6 Nygren , 658 P.2d at 146 .

7 SLA 2007, ch. 24, § 20.

8 See McKinley , 275 P.3d at 567-68 .

9 See Marker v. State , 829 P.2d 1191 , 1194 (Alaska App. 1992) (discussing AS 12.55.025(c) ).

10 State v. Sears , 553 P.2d 907 , 910 (Alaska 1976) ; Demientieff v. State , 814 P.2d 745 , 747 (Alaska App. 1991) (citing Paul v. State , 560 P.2d 754 , 756 (Alaska 1977) ).

11 See Kvasnikoff v. State , 535 P.2d 464 , 466 (Alaska 1975) (holding that a probation revocation hearing is a "supplemental proceeding" to the original proceeding placing the defendant on probation). See also McRae v. State , 909 P.2d 1079 , 1083 (Alaska App. 1996).

12 Demientieff , 814 P.2d at 747 ; see also Toney v. State , 785 P.2d 902 , 903 (Alaska App. 1990).

13 DeMario v. State , 933 P.2d 558 , 562 (Alaska App. 1997) ; Toney , 785 P.2d at 903 .

14 Luepke v. State , 765 P.2d 988 , 990-91 (Alaska App. 1988).

15 See Johnson v. United States , 529 U.S. 694 , 700-01, 120 S.Ct. 1795 , 146 L.Ed.2d 727 (2000) ("attribut[ing] postrevocation penalties to the original conviction" and noting the constitutional questions that would otherwise be raised from treating postrevocation penalties as new punishment); see also State v. Black , 153 N.J. 438 , 710 A.2d 428 , 440 (1998) ; State v. Corkum , 224 N.C.App. 129 , 735 S.E.2d 420 , 423 (2012).

16 See Demientieff , 814 P.2d at 747 ; see also Toney , 785 P.2d at 903 .

17 Cf. Raymond v. State , 2004 WL 1837708 , at *3 (Alaska App. Aug. 18, 2004) (unpublished) (applying credit for time spent in custody on a violating conditions of release charge against sentence imposed for earlier DUI because the violating conditions of release charge was "sufficiently connected to" the DUI to satisfy AS 12.55.025(c) ).

18 Cf. State v. Shetters , 246 P.3d 332 , 338 (Alaska App. 2010) (holding that mandatory parolees are entitled to credit for time served at a halfway house as a condition of their parole "if the Board later revokes their parole and orders them to serve some or all of their remaining sentence").

19 See, e.g. , Hester v. State , 777 P.2d 217 , 218-19 (Alaska App. 1989) ; cf. North Carolina v. Pearce , 395 U.S. 711 , 718, 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) (constitutional prohibition against double jeopardy requires credit against sentence imposed after retrial for time previously served in prison in connection with the same case).

20 See, e.g. , Corkum , 735 S.E.2d at 425 (holding that defendant was entitled to credit against second violation of supervision for time spent in custody pending resolution of first violation of supervision, since he was "serving the same nine-month sentence that he would have served had post-release supervision been revoked following the first violation"); Ex parte Canada , 754 S.W.2d 660 , 667-68 (Tex. Crim. App. 1988) (holding that denying credit to a parolee for time spent confined pursuant to a pre-revocation warrant who "has his parole continued only to have it later revoked is violative of the parolee's right of due course of law" under the Texas Constitution). But see Bryant v. Warden , 776 F.2d 394 (2d Cir. 1985) (denying request to offset sentence imposed for parole violation with time served on a prior parole violation).

21 See Thompson v. State , 496 P.2d 651 , 656 (Alaska 1972) ; cf. Smith v. State , 685 So.2d 1362 , 1363 (Fla. Dist. App. 1996) ("A prisoner sentenced to prison for violating probation which constitutes the second portion of a split sentence is entitled to credit for time actually served in prison prior to the commencement of the probationary term."); Neil P. Cohen, 2 The Law of Probation and Parole § 28:10, pp. 21-23 (2d ed. 1999) (noting that "[a]fter a probation revocation, most jurisdictions give full credit for time spent in jail prior to the initial criminal trial or while awaiting sentencing, unless such credit has already been given" and also that "credit for time in jail awaiting revocation, like credit for jail time prior to the original criminal trial, is usually given").

22 See Lock v. State , 609 P.2d 539 , 542 (Alaska 1980) (declining to address Lock's argument that double jeopardy protections mandate credit for time spent under the restrictions of a rehabilitation program).

23 Id. at 546 .

24 Id.

25 See generally Walters v. State , 798 P.2d 357 , 359 (Alaska App. 1990) (noting that "parolees and probationers should be treated with basic fairness" and holding that a prisoner should not be "unfairly and arbitrarily deprived of credit because of the failure to institute revocation proceedings in a prompt and timely manner"). Cf. Wells v. State , 706 P.2d 711 , 714 (Alaska App. 1985) (holding that the legislature did not intend application of mandatory consecutive sentencing to turn on "such fortuitous and haphazard considerations" as whether a defendant had the foresight to arrange consolidated sentencing proceedings).

26 AS 12.55.027(e).

1 See Medina , 418 P.3d 861, 2018 WL 1124440 , at * 1 n.l.

2 Triplett v. State , 199 P.3d 1179 (Alaska App. 2008).

3 Id. at 1181 .

4 See Gilligan v. State , 560 P.2d 17 , 19 (Alaska 1977) (holding that a term of imprisonment imposed at a probation disposition hearing is a "sentence of imprisonment lawfully imposed" within the meaning of the statutes providing for sentence review); Hernandez v. State , 691 P.2d 287 , 291 (Alaska App. 1984) (recognizing, based on Gilligan , that imposition of a previously suspended sentence constitutes a "sentence" and holding that, prior to imposing sentence at a probation revocation hearing, the trial court should obtain an updated presentence report and consider all the Chaney criteria); see also DeMario v. State , 933 P.2d 558 , 562 (Alaska App. 1997) (recognizing that when a court revokes a defendant's probation, the court must consider all currently available information in light of the Chaney criteria, and "[t]he court's sentence must be based on the totality of the circumstances"); Luepke v. State , 765 P.2d 988 , 990-91 (Alaska App. 1988) (holding that when a defendant rejects probation, the court "must carefully reevaluate all currently available information and impose a sentence that would have been appropriate for the original offense had the trial court known the information at the initial sentencing"),

5 In fact, Medina's cases were also "pending trial" - i.e., adjudication.

6 See State v. Walker , 283 P.3d 668 , 673 (Alaska App. 2012). We vacated the award of credit in Walker on different grounds - our concern that Walker had already received the credit against a different case.

7 Triplett , 199 P.3d at 1181 .

8 Medina , 2018 WL 1124440 , at *3.

9 Cf. Bridge v. State , 258 P.3d 923 , 930 (Alaska App. 2011) (noting that the definition of "confinement" for purposes of the second-degree escape statute does not necessarily govern the meaning of this term for other purposes "because it is possible for the same word or phrase to have different meanings in different contexts"); Kelly v. State , 663 P.2d 967 , 971 (Alaska App. 1983) (noting that the word "conviction" can have different meanings depending on the context).

10 See Medina , 2018 WL 1124440 , at * 3.

11 SLA 2016, ch. 36, §§ 67,190. This new language applies to sentences imposed on or after January 1, 2017 for conduct occurring before, on, or after that date. Id. at §§ 185(d), 190.

12 We note that under AS 12.30.055(b), a person who is in custody for a technical violation of probation under AS 12.55.110 must be released after serving the maximum number of days that the court could impose under AS 12.55.110.

13 See Gilligan, 560 P.2d at 19 ("Although a probation revocation hearing is not a criminal proceeding in the sense that indictment, jury trial and proof beyond a reasonable doubt are required, it is necessarily an outgrowth of the initial criminal case.").

14 AS 11.81.900(b)(65) (emphasis added).

15 Marker v. State, 829 P.2d 1191 (Alaska App. 1992).

16 State v. Berumen, 2011 WL 3631134 (Alaska App. Aug. 17, 2011) (unpublished).

17 Marker, 829 P.2d at 1193-95 .

18 Berumen, 2011 WL 3631134 , at * 1-2 (holding that trial court properly credited time served in connection with an invalidated sentence against remaining suspended time on defendant's second case for which he had been sentenced simultaneously, noting that such credit did not involve improper banking of time).