State v. Stefano, S-17892

CourtSupreme Court of Alaska (US)
Writing for the CourtBORGHESAN, Justice.
Docket NumberS-17892
Decision Date02 September 2022



No. S-17892

Supreme Court of Alaska

September 2, 2022

Petition for Review from the Superior Court of the State of Alaska, No. 3AN-19-09950 CI Third Judicial District, Anchorage, Peter R. Ramgren, Judge.

Anna Jay, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Petitioner.

Trevor J. Stefano, pro se, Anchorage, Respondent.

Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Amicus Curiae Public Defender Agency.

Before: Winfree, Maassen, Carney, and Borghesan, Justices.

[Bolger, Chief Justice, not participating.]




The Department of Corrections (DOC) allows some inmates to serve a portion of their prison sentence outside a correctional facility while wearing electronic


monitoring equipment. Inmates serving a sentence on electronic monitoring live and work in the community, but are subject to restrictions on movement and conduct. If an inmate violates those restrictions, DOC may return the inmate to prison.

This case presents a jurisdictional question: does the superior court have jurisdiction to hear an appeal of DOC's decision to remove an inmate from electronic monitoring and return the inmate to prison? Within that jurisdictional question is a more fundamental question: is DOC's decision subject to the constitutional guarantee that "[n]o person shall be deprived of . . . liberty . . . without due process of law?"[1]

We hold that due process applies. Although we reject the argument that removal from electronic monitoring and remand to prison implicates the constitutional right to rehabilitation, as the inmate in this case argues, we conclude that serving a sentence on electronic monitoring affords a limited but constitutionally protected degree of liberty, akin to parole. Just as "a parolee may not be deprived of his limited liberty without due process of law,"[2] an inmate serving a sentence on electronic monitoring may not be returned to prison without safeguards to ensure that liberty is not wrongly taken away.

Nevertheless we hold that the superior court did not have appellate jurisdiction to review DOC's decision in this case. Appellate review of an agency's decision is possible only when the decision is the product of an adjudicative process in which evidence is produced, law is applied, and an adequate record is made. DOC's decisional process in this case was not an adjudicative process and did not create a record


that permits appellate review.[3] We therefore remand this case to the superior court to convert this case from an appeal to a civil action so that the parties can create the record necessary for judicial review of DOC's decision.


A. Facts

Trevor Stefano was found guilty of second-degree murder at the age of 22; he was sentenced to 40 years in prison with 15 years suspended. In February 2018, after serving roughly twelve years of his sentence, he applied to serve the remainder of his sentence on electronic monitoring. Under DOC Policies &Procedures 903.06, which then governed the electronic monitoring program, an incarcerated person was normally ineligible for electronic monitoring if the person had more than three years remaining to serve.[4] But there was an exception to the three-year rule for someone who "exhibit[ed] exceptional rehabilitative progress." DOC determined that Stefano had demonstrated exceptional rehabilitative progress and in May 2018 released him on electronic monitoring in Fairbanks. Stefano's electronic monitoring agreement with DOC required


him to obtain prior approval from DOC before friends, family members, and associates could visit his residence and before having contact with a convicted felon.

Stefano got married while in Fairbanks; he and his wife later moved to Anchorage. In early July 2019 Anchorage Police Department (APD) officers visited Stefano's apartment in response to a report of domestic violence. After investigating, the officers arrested Stefano. The officers also observed that Stefano's brother Connor was at Stefano's home. Connor had previously been convicted of a felony but was no longer in DOC custody. The APD officers reported Connor's presence to a probation officer.

Stefano's probation officer prepared an incident report. The report first cited Stefano for committing a "high-moderate infraction" as defined in 22 Alaska Administrative Code (AAC) 05.400(c)(19) (2018) by "refusing to obey a direct order of a staff member." It then stated that Stefano had "violated the Terms and Conditions of the Anchorage Electronic Monitoring (EM) program and has been terminated from the program." It explained that Stefano had violated term 9, prohibiting unauthorized contact with friends and family members, and term 21, prohibiting unauthorized contact with convicted felons. With respect to Stefano's termination from electronic monitoring, the report stated:

Correspondence . . . indicated that [criminal charges against Stefano] had been dropped. I requested and reviewed the related court documents which indicated the Municipal Attorney had declined to prosecute. Collateral information indicated that the victim had requested the charge not be pursued against [inmate] Stefano. I determined that [inmate] Stefano had initiated contact with the victim from the jail shortly after he was booked; I requested and reviewed copies of some of the recordings. In short, the recordings revealed that [inmate] Stefano manipulated and directed the victim to request the charge be dropped.... The victim indicated that what she had told the police was true and she was fearful of him and worried that he would kill her or have her killed
Additional recordings are pending review however, considering the totality of the situation it is my professional opinion that the victim[']s concern[s] for her safety are adequately supported. My opinion is supported by the facts of the above incident, the victim[']s statements to police, the injury documented in the report, the recordings reviewed after [inmate] Stefano's booking and both offender[s'] history. Ultimately the behaviors demonstrated by [inmate] Stefano are inconsistent with the expectations, directives and Terms and Conditions of the [electronic monitoring] program.

B. Administrative Proceedings

Stefano appealed his termination from electronic monitoring. His appeal was denied by a probation officer, who explained that: (1) Stefano had been given permission to have only telephonic contact, not in-person contact, with his brother Connor; and (2) although the domestic violence charges were dismissed, the officer had heard Stefano's "inappropriate statements to [his] wife" in the recorded calls fromprison.

Stefano requested a classification hearing from DOC, asserting that he had a right to review of his removal from electronic monitoring because it is a rehabilitative program. DOC denied him a classification hearing, maintaining that "[electronic monitoring] is not a rehabilitati[ve] program."

Stefano received a disciplinary hearing on the (c)(19) infraction ("refusing to obey a direct order of a staff member"). Stefano requested that the recorded phone calls between him and his wife be entered into evidence, but the hearing officer denied his request, stating: "I don't think the phone recordings have anything to do with you violating a (c)(19) or not violating a (c)(19)." The hearing officer also refused to call Stefano's requested witnesses: Stefano's wife, his brother, and the arresting APD officer. The hearing officer said that his purpose at the hearing was "to figure out . . . if [Stefano] violated those two conditions" [of the electronic monitoring program] by


having his brother at his residence, and to determine whether Stefano "violated this infraction, (c)(19)." At the end of the hearing the hearing officer found Stefano guilty of the infraction and sentenced him to 30 days in punitive segregation.

Stefano appealed the disciplinary decision that same day. He listed eight points in his appeal statement, including that he "was removed from [the] DOC [electronic monitoring] rehabilitative program with no classification hearing and no consideration to [his] rehabilitation." The superintendent of the Anchorage Correctional Complex affirmed the disciplinary decision, addressing each of Stefano's points in turn. Regarding Stefano's termination from the electronic monitoring program without a classification hearing, the superintendent wrote only "[t]his is up to [the electronic monitoring program]."

Stefano subsequently reapplied to electronic monitoring. After his application was denied, he appealed and was again denied. The denial stated: "Based on the totality of your violations, to include the information included in the [(c)(19) incident report], I see no reason to allow you to reapply for [electronic monitoring] during the remainder of your incarceration."

C. Superior Court Proceedings

Stefano appealed the disciplinary action to the superior court. In his points on appeal he claimed that DOC had improperly refused to provide him with the evidence against him, refused to allow him to call witnesses in his defense, and prevented him from having his attorney at the hearing. He also claimed that DOC had "failed to follow [its] own policy and procedure regarding the electronic monitoring program and improperly discharged Stefano from that program." Stefano later supplemented his points on appeal, adding a claim that his removal from electronic monitoring had violated his constitutional rights to due process and to rehabilitation.


After briefing and oral argument, the superior court issued a written decision in Stefano's favor. It first...

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