No. 5828, Court of Appeals No. A-10646.


Court of Appeals of Alaska.

Attorney(s) appearing for the Case

Robert Lee Griffin (opening brief) and Dan Bair (reply brief), Assistant Public Advocates, Appeals & Statewide Defense Section, and Rachel Levitt (opening brief) and Richard Allen (reply brief), Public Advocates, Anchorage, for the Appellant.

Douglas H. Kossler , Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns , Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

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.



Billie Rae Deemer was convicted of controlled substance misconduct, two counts of weapons misconduct, and giving false information to a police officer. Her case was on appeal for quite some time; this Court ultimately issued two separate decisions before we affirmed all but one of Deemer's convictions: Deemer v. State (I), unpublished, 2009 WL 962822 (Alaska App., April 8, 2009), and Deemer v. State (II), 244 P.3d 69 (Alaska App. 2010).

While Deemer's appeal was pending, she asked the superior court to release her on bail, subject to electronic monitoring and also subject to the condition that she reside at Lydia House, a transitional living program for women who are leaving prison or leaving a residential treatment program.

The superior court approved Deemer's request. She was released from prison on December 7, 2007, and she resided at Lydia House until early May 2008 — when her conditions of release were again modified, this time allowing her to move to a private apartment.

Deemer later asked the superior court to award her credit against her sentence for the approximately five months she spent at Lydia House. The superior court denied this request, and Deemer now appeals.

Under AS 12.55.025(c), a sentencing judge must give a defendant "credit for time spent in custody pending [their] trial, sentencing, or appeal". In Nygren v. State, 658 P.2d 141 (Alaska App. 1983), we interpreted this statute as requiring a court to give a defendant credit for time spent in residential treatment, as long as the defendant "is subjected to restrictions approximating those experienced by one who is incarcerated." Id. at 146.

In Nygren, we listed a number of criteria that characterize a "custodial" facility: (1) residents are sent to the facility by court order; (2) the facility's conditions of residency involve a definite element of confinement; (3) residents of the facility are subject to twenty-four-hour physical custody or supervision; (4) if residents are permitted to leave the facility, all periods of absence are expressly limited, both as to time and purpose; (5) while in the facility, residents are under a continuing duty to conform their conduct to institutional rules, and to obey the orders of persons who have immediate custody of them; and (6) residents are subject to sanctions if they violate institutional rules or the orders of their custodians, and residents are subject to arrest if they leave the facility without permission. Ibid.

With these criteria in mind, we turn to the facts of Deemer's case.

According to the testimony given by the director of Lydia House, Eugenia Pauline Hailstone, Lydia House (at the time of Deemer's residence there) was a small "transitional living" program for women, housed in a six-bedroom house, with one to five residents at any given time. Lydia House accepts women who are leaving prison, but it also accepts women who are emerging from treatment programs, as well as women who (in Ms. Hailstone's words) are "coming from various [other] places".1

Residents are required to agree to five pages of "guidelines" for living at Lydia House. These guidelines include a prohibition on all alcohol and non-prescription drugs, an agreement that their room and personal belongings are subject to random search, and a commitment that they will attend all agreed-upon church services, bible classes, prayer times, work details, and recreation.

Lydia House residents are required to obtain and maintain employment (unless they are granted an exception). They also must abide by a week-night curfew of 11:00 p.m. (unless they are employed and working a night shift), and a weekend-night curfew of 1:00 a.m.. Residents are allowed to leave Lydia House for short overnight stays with family members who live close by or who are visiting, but these residents can be asked to submit to urinalysis when they return to the facility.

Under the Lydia House guidelines, residents can be terminated from the facility if they use or possess drugs or alcohol; if they are "constantly uncooperative"; if they engage in life-threatening words or actions; if they strike a staff member, volunteer, or other resident; or if they "are not ready to surrender [their] heart and ways to the Lord[,] allowing Him to work in [their] life through prayer, scripture, and counseling".

In addition, the Lydia House staff acquaint themselves with each resident's court-ordered conditions, and they try to make sure that each resident abides by those conditions.

But even though Lydia House expects its residents to adhere to these guidelines, and to the conditions of their release (if any), Lydia House is not a locked facility. According to its director, Ms. Hailstone, Lydia House residents "can leave of their own free will", in the sense that there are no guards or other security measures to stop them — although Hailstone explained that the staff would contact the authorities if they knew that a resident's conditions of probation or conditions of release forbade them from leaving the property.

Indeed, according to the Lydia House guidelines, and according to Ms. Hailstone's testimony, Lydia House is expressly not intended to be a treatment center or a halfway house. Hailstone told the superior court that Lydia House "was nowhere near what you would envision [as] a halfway house, as far as [a] lock-down [and] all that kind of stuff." She explained that "monitoring [the residents] wasn't the idea behind [Lydia] House". If a resident left the house, saying that they were going somewhere, "they were free [to do so]". The Lydia House staff "didn't follow them" and "didn't check up [on them]".

Rather, Lydia House was intended to function as a "faith-based transitional house" — a safe living environment where women could obtain counseling, pursue employment opportunities, participate in treatment offered by outside treatment programs, and "seek the Lord to transform [their] lives".

Based on this record, Superior Court Judge Eric Smith ruled that Deemer was not entitled to credit against her sentence for the five months she spent at Lydia House:

The Court: It sounds like Lydia House is a very good program ... . But it was not, itself, a treatment program. ... And there wasn't the kind of strict monitoring [and] pass system that is the hallmark of most of the [residential] treatment programs I know about. And [I intend] no dis-respect to the [Lydia House] program, [because] that was not its intention; it was not its goal. But the programs that [qualify for] Nygren credit [generally] have day-passes and [are] pretty restrictive as to when [residents] get out and when they don't get out. [Such a program] looks a lot more like incarceration. ... Lydia House [had] some rules in terms of [residents] being able to stay there, but there weren't a lot of rules in terms of [their] coming and going. And I think that that's the big distinction here. ... [I]n terms of meeting the Nygren [criteria], I find that [Lydia House] does not. So I'm not going to grant [the requested] Nygren credit.

Judge Smith's ruling is consistent with this Court's prior decisions in this area. For instance, in Matthew v. State, 152 P.3d 469 (Alaska App. 2007), we held that the defendant was not entitled to Nygren credit, even though the defendant was subject to electronic monitoring, because the defendant's "day-to-day activities were unencumbered by the kind of institutional rules and routines that are the hallmark of correctional or residential rehabilitative facilities," and because the defendant was not subjected to the "structured, regimented life style that is the central feature of both incarceration and residential treatment programs". Id. at 472-73. See also Fungchenpen v. State, 181 P.3d 1115, 1116 (Alaska App. 2008), where this Court held that a defendant who was released on electronic monitoring, and who was required to be in his wife's presence around the clock except when he was at work, was not entitled to Nygren credit.

Deemer's residence at Lydia House is, in many ways, analogous to the facts of McKinley v. State, 215 P.3d 378 (Alaska App. 2009). In McKinley, the defendant spent six months in court-ordered treatment at the Salvation Army's residential treatment program (for which he did receive Nygren credit), and then, immediately after he completed the residential treatment program, the defendant entered the Salvation Army's after-care program. Id. at 379. While participating in this after-care program, the defendant lived in a "grad room" in a Salvation Army residence. In order to remain in this facility, he had to comply with the Salvation Army's house rules. Ibid.

But one of the primary Nygren criteria is twenty-four-hour physical custody or supervision, and that criterion was not met. Id. at 380. The record in McKinley showed that people who resided at the Salvation Army facility during after-care "were free to do anything during the day[,] subject only to the obligation to sign out", and that after-care residents "could leave as early as 6:00 a.m. and not return until 11:00 p.m." Ibid.

Deemer's case is similar. Even though Deemer was obliged to follow Lydia House rules (the house "guidelines") if she wished to continue living there, Deemer was not subject to custody or to monitoring during most of the day. For this reason, we agree with Judge Smith that Deemer is not entitled to credit against her sentence for the time she spent at Lydia House.


The judgement of the superior court is AFFIRMED.


1. According to Lydia House's description of itself — which can be found at — Lydia House is "[a] safe-house program designed to assist women who are seeking to re-enter the community from incarceration, treatment centers, half-way houses, or [who wish to attain] a life style free of bondage, alcohol, drugs & prostitution." It is "a faith-based non-profit Christian women's program designed to equip and help women while they transition back into the community."


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