NOTICE
 

The text of this opinion can be corrected before the opinion is published in the 

Pacific Reporter. Readers are encouraged to bring typographical or other formal 

errors to the attention of the Clerk of the Appellate Courts: 

303 K Street, Anchorage, Alaska 99501
 

Fax: (907) 264-0878
 

E-mail: corrections @ akcourts.us
 

IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

SHAWN GREGORY BELKNAP, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-12471 

Trial Court No. 3AN-14-2560 CR 

O P I N I O N 

No. 2610 — July 27, 2018 

Appeal from the Superior Court, Third Judicial District, 

Anchorage, Kevin M. Saxby, Judge. 

Appearances: Lars Johnson (opening brief) and Megan R. 

Webb (reply brief), Assistant Public Defenders, and Quinlan 

Steiner, Public Defender, Anchorage, for the Appellant. Ann B. 

Black, Assistant Attorney General, Office of Criminal Appeals, 

Anchorage, and Craig W. Richards, Attorney General, Juneau, 

for the Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, 

Superior Court Judge. * 

Judge ALLARD, writing for the Court and concurring 

separately. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Pursuant to a plea agreement, Shawn Gregory Belknap was convicted of 

felony driving under the influence and sentenced to 3 years to serve.1 A few months 

after his sentence was imposed, Belknap filed a pro se motion under AS 12.55.027(d) 

requesting sentencing credit for the time he spent on bail release under conditions that 

included court-ordered electronic monitoring. Belknap also requested that counsel be 

appointed to assist him in this litigation. The superior court denied Belknap’s request 

for counsel. The court ultimately granted Belknap’s request for sentencing credit in part, 

granting Belknap 62 days of credit out of the approximately 279 days of credit that he 

sought. 

Belknap now appeals, arguing that the superior court erred when it denied 

him the additional credit he sought. Belknap also argues that the superior court erred 

when it denied his request for appointment of counsel. For the reasons explained here, 

we conclude that a post-judgment motion for sentencing credit under AS 12.55.027(d) 

is a critical stage of a criminal proceeding for which a defendant is entitled to the 

assistance of counsel. We therefore conclude that Belknap is entitled to re-litigate his 

request for the additional credit with the assistance of counsel that he was previously 

denied. Because Belknap’s counsel may have additional evidence or arguments to offer 

in support of this request, we express no opinion as to whether Belknap is entitled to the 

additional sentencing credit he seeks. 

Background facts and prior proceedings 

Belknap was arrestedin March 2014 for felony driving under the influence, 

reckless driving, and driving while license revoked. A month after his arrest, Belknap 

was released on bail under conditions that included 24-hour GPS-based electronic 

AS 28.35.030(n). 

– 2 – 2610
 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

monitoring supervision through a steel cuff monitor on Belknap’s ankle. The bail order 

restricted Belknap to his house, with limited passes for work, court, and medical 

appointments. Belknap was also required to carry a remote SCRAM breath alcohol 

monitor, which would test Belknap’s breath for the presence of alcohol at both scheduled 

and random times throughout the day. The SCRAM monitor was equipped with a 

separate GPS tracking system and facial recognition software to ensure Belknap’s 

compliance with the tests. Belknap successfully completed 62 days without any 

violations of the conditions of his bail release while under this bail order. 

At Belknap’s request, the trial court then modified Belknap’s bail release 

to eliminate the 24-hour GPS-based continuous electronic monitoring. The court 

retained the SCRAM breath alcohol monitoring. Under this modified bail order, 

Belknap’smovementswereonly tracked intermittently, through theGPS-basedSCRAM 

breath alcohol tests. Belknap’s time at work was also directly supervised by a live thirdparty custodian. 

Belknap was less successful on these modified conditions. After 

approximately six months on the modified bail release program, Belknap failed two 

different drug tests and he was remanded to custody for that reason. Less than a month 

later, Belknap was re-released on the same modified bail conditions, but subsequently 

remanded to custody again after another failed drug test. 

On April 6, 2015, Belknap pleaded guilty to felony driving under the 

influence pursuant to a plea agreement, and he was sentenced to 3 years to serve. 

Belknap was represented by privately retained counsel at his sentencing hearing. 

Shortly after Belknap was sentenced, the Alaska legislature enacted the 

current version of AS 12.55.027(d), which allows trial courts to grant sentencing credit 

to defendants who are on court-ordered electronic monitoring programs during their bail 

– 3 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

release.2 This sentencing credit is not available to defendants who commit “a criminal 

offense” while on their electronic monitoring program.3 In most instances, a defendant’s 

violation of a condition of release qualifies as a “criminal offense” for these purposes and 

precludes a defendant from receiving credit under AS 12.55.027(d).4 

In July 2015, shortly before this new legislation went into effect, Belknap 

filed a pro se motion under the new statute. In that motion, Belknap sought credit for the 

approximately 279 days that he spent on pretrial bail release in his case. The court 

refused to hear the pro se motion because Belknap was still represented by his private 

counsel.5 Belknap’s private counsel was then permitted to withdraw, and the court then 

accepted the pro se motion for filing. 

The State opposed Belknap’s claim for credit on multiple grounds. The 

State argued first that the statute could not be retroactively applied to Belknap. The State 

also argued that Belknap’s modified monitoring program was not sufficiently 

2 SLA 2015, ch. 20, §§ 1-3 (House Bill 15). The effective date of this new 

legislation was August 12, 2015. See 2015 House Journal 1188. 

3 AS 12.55.027(d) (“A court may grant credit against a sentence of imprisonment for 

time spent under electronic monitoring if the person has not committed a criminal offense 

while under electronic monitoring ...”); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018 

WL 1221458, at *5 (Alaska App. Mar. 9, 2018). 

4 See AS 11.56.757(b) (violation of condition of release is a class B misdemeanor); see 

also Bell, 2018 WL 1221458 at *5; State v. Thompson, __ P.3d __, Op. No. 2595, 2018 WL 

1885671, at *2-5 (Alaska App. Apr. 20, 2018) (holding that a violation of conditions of 

release did not qualify as a criminal offense for purposes of awarding sentencing credit under 

AS 12.55.027(d) during the time in which the Alaska legislature had categorized this offense 

as a non-criminal violation). 

5 See, e.g., Ortberg v. State, 751 P.2d 1368, 1379 n.9 (Alaska App. 1988) (pro se 

pleadings are properly rejected by the court when a defendant is represented by counsel). 

– 4 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

comprehensive or restrictive to qualify for “electronic monitoring” for purposes of 

AS 12.55.027(d). Lastly, the State argued that Belknap was ineligible for any sentencing 

credit because he had violated the conditions of his release by ingesting illegal drugs 

while on bail release. 

The superior court held an evidentiary hearing on Belknap’s request for 

credit. At the evidentiary hearing, Belknap requested that counsel be appointed to assist 

him in litigating his motion. The superior court denied this request. The court also 

denied Belknap’s request for a continuance, although the court allowed Belknap to 

submit additional materials after the hearing and the court also allowed Belknap to 

submit additional briefing. 

The superior court subsequently issued a written order rejecting the State’s 

retroactivity argument and partially granting Belknap’s motion for credit. The court 

concluded that Belknap was entitled to credit for the 62 days that he spent on bail release 

under the 24-hour GPS-based electronic monitoring program, because Belknap 

successfully completed that time on electronic monitoring without violating the 

conditions of his release or otherwise committing a new criminal offense. But the court 

concluded that Belknap was not entitled to any credit for the time he spent on the 

modified SCRAM-only monitoring program because the court found that this modified 

program was not sufficiently comprehensive or restrictive to qualify as “electronic 

monitoring” for purposes of AS 12.55.027(d). The court also noted that Belknap would 

apparently be ineligible for that credit based on the violations of the conditions of his 

release while on that modified program. 

Belknap filed a motion for reconsideration, arguing that the modified 

SCRAM-only monitoring program was sufficiently restrictive to be considered 

“electronic monitoring” under the statute because Belknap was subject to multiple 

– 5 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

random breath tests on a daily basis and those random breath tests also automatically 

recorded his GPS location. According to Belknap, there was no functional difference 

between the level of supervision provided by the original 24-hour GPS-based steel ankle 

cuff monitoring program and the subsequent modified monitoring program. 

The superior court rejected this claim and denied Belknap’s motion for 

reconsideration. The court also noted that, even if the SCRAM-only program qualified 

as “electronic monitoring” under the statute, Belknap’s illegal drug use while on that 

program would make him ineligible for any credit for the time he spent on bail release 

under that modified program.6 

Belknap, now represented by the Alaska Public Defender Agency, appeals 

the superior court’s rulings, including the superior court’s denial of his request for 

counsel. The State has not cross-appealed.7 

Why we conclude that Belknap was entitled to the assistance of counsel in 

litigating his request for credit 

On appeal, Belknap argues that the superior court erred when it denied his 

request for appointed counsel. Belknap contends that a motion for sentencing credit 

under AS 12.55.027(d) should be considered a “critical stage” ofthe underlying criminal 

action akin to sentencing because resolution of such claims directly affects the length of 

time a defendant will have to serve in jail.8 

6 AS 12.55.027(d). 

7 On appeal, the State argues that Belknap was not entitled to the 62 days of credit he 

received. Because the State did not cross-appeal the granting of this credit, we do not 

address the State’s arguments here. 

8 See Egelak v. State, 438 P.2d 712, 715 (Alaska 1968) (criminal defendant has 

(continued...) 

– 6 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In response, the State argues that a post-judgment motion for sentencing 

credit is not a “critical stage” of the underlying criminal action, and Belknap was 

therefore not entitled to the assistance of counsel. Instead, the State analogizes these 

court proceedings to administrative prisoner disciplinary proceedings in which a 

defendant faces the loss of potential good-time credit based on his alleged misconduct 

while in jail. The State points out that prisoners are not entitled to counsel for these 

administrative hearings even though resolution of those proceedings may also affect the 

amount of time that the prisoner will serve in jail. 

We find this analogy inapt. A prisoner disciplinary proceeding is an 

administrative matter conducted under the authority of the Department of Corrections.9 

The proceeding is entirely separate from the prisoner’s underlying criminal case and its 

focus is on whether the prisoner violated the facility’s rules as a factual matter.10 

In contrast, a motion for sentencing credit is filed as part of the defendant’s 

underlying criminal case and is litigated in the trial court. The motion involves factual 

matters relating to other proceedings in the criminal case — specifically, the court’s bail 

orders and the defendant’s conduct while under those court orders. In addition, it is the 

defendant who bears the burden of showing, by a preponderance of the evidence, that he 

is entitled to the sentencing credit he seeks.11 Moreover, as this case demonstrates, 

resolution of the motion can involve complicated questions of statutory interpretation 

8 (...continued) 

constitutional right to be present and to be assisted by counsel at every critical stage of a 

criminal proceeding). 

9 See 22 Alaska Administrative Code (AAC) 05.400 et seq. 

10 See McGinnis v. Stevens, 543 P.2d 1221, 1228-29 (Alaska 1979). 

11 See AS 12.55.027(e). 

– 7 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

that an unrepresented defendant is ill-equipped to litigate. Likewise, resolution of the 

motion will often require supplementation of the factual record with materials from the 

private electronic monitoring agencies that can be difficult for an incarcerated and 

unrepresented defendant to obtain.12 

In Shannon v. State, an unpublished memorandum, we recognized that a 

defendant litigating a post-judgment motion to reduce sentence would face similar 

difficulties, and we therefore concluded that defendants were entitled to the assistance 

of counsel in litigating those post-judgment motions.13 We also find the reasoning 

articulated by Chief Judge Bryner in his concurrence in Shannon particularly persuasive 

and equally applicable to the circumstances presented here. 

As Chief Judge Bryner noted, a post-judgment motion to reduce sentence 

is “neither detached from nor collateral to the original criminal case.”14 Instead “it is a 

component part of the original case and, as such, is available to the accused as a matter 

of right.”15 Chief Judge Bryner further noted that “[o]nce the right to counsel attaches 

in a criminal case ... it attaches to the entire procedural constellation, not just to the trial 

12 Cf. Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973) (holding that the right to 

counsel extends to the initial pleading stage of applications for post-conviction relief because 

“[o]nly the presence of counsel will assure that meritorious claims will be fairly presented 

and full advantage taken of the procedures”). 

13 Shannon v. State, 1995 WL 17220757, at *1-2 (Alaska App. Mar. 29, 1995) 

(unpublished) (concluding that the right to counsel for a post-judgment motion to reduce 

sentence “is at least as basic a right as the right to the assistance of counsel in presenting an 

initial application for post-conviction relief”). 

14 Id. at *2 (Bryner, C.J., concurring). 

15 Id. 

– 8 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

proper.”16 He therefore concluded that the right to counsel should apply to a timely postjudgment motion for reduction of sentence, just as it does to other parts of a defendant’s 

criminal case.17 

We agree with Chief Judge Bryner that the right to counsel in a criminal 

case necessarily extends to post-judgment motions in that criminal case. We also 

conclude that motions for sentencing credit are no less integral to the underlying criminal 

case than the motion to reduce sentence at issue in Shannon. Accordingly, we conclude 

that an indigent defendant is entitled to the assistance of counsel when litigating a postjudgment claim for credit for electronic monitoring. 

We note that, in most instances, a defendant will already be represented by 

counsel at the time these motions are filed. Belknap’s case is unusual in this regard 

because he was represented by private counsel at sentencing, but he apparently became 

unable to pay for his private counsel. The private attorney was then allowed to withdraw 

when Belknap filed his pro se motion for sentencing credit, apparently without any 

inquiry into whether Belknap was now eligible for appointed counsel. 

Having determined that the superior court erred when it refused Belknap’s 

request for appointed counsel, we now turn to the State’s alternative argument that this 

error was harmless beyond a reasonable doubt because Belknap is not entitled to the 

credit he seeks as a matter of law. Belknap argues that deprivation of counsel in these 

circumstances can never be harmless and should be recognized as structural error. 

We conclude that we need not resolve that issue here, because we conclude 

that there are enough questions remaining regarding the nature of the supervision 

16 Id. 

17 Id. at *3. 

– 9 – 2610
 
 

 

 

 

 

 

 

 

 

 

provided under the SCRAM-only monitoring to make the proper outcome of this case 

unclear. Although the attorneys on appeal have done an admirable job in litigating the 

complicated legal issues raised by Belknap’s request for credit, their advocacy has 

necessarily been limited by the existing factual record, which does not provide a clear 

picture of the day-to-day supervision and GPS tracking provided by the SCRAM-only 

monitoring. It may be that, after consultation with counsel, Belknap has no additional 

facts or legal arguments to offer in support of his claim for the additional sentencing 

credit. But we are unwilling to conclude that Belknap’s claim fails as a matter of law 

without giving him the opportunity to re-litigate his claim with the assistance of counsel 

that he was erroneously denied. 

Conclusion 

We VACATE the portion of the superior court’s order denying Belknap 

sentencing credit for the time spent on the SCRAM-only monitoring program, and we 

REMAND this case to the superior court for further proceedings consistent with this 

decision. 

– 10 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Judge ALLARD, concurring. 

I agree that Belknap should be given an opportunity to litigate his claim for 

the sentencing credit with the assistance of counsel. I write separately only to provide 

additional guidance on some of the legal issues presented by this case. 

Belknap is correct that there is no definition of “electronic monitoring” in 

the statute. However, Belknap misreads the legislative history on this matter. On appeal, 

Belknap points to various committee minutes in which the legislature discussed, but did 

not decide, whether “electronic monitoring,” for purposes of AS 12.55.027(d) should be 

restricted to the traditional steel cuff ankle monitor used by the Department of 

Corrections.1 But these discussions were framed in terms of not wanting to limit the 

courts if there were technological advancements that could provide the same level of 

supervision as provided by the traditional steel cuff monitor. Thus, in those discussions, 

the sponsor of the bill, Rep. Tammie Wilson, explained that the bill did not include a 

specific definition of “electronic monitoring” because the technology kept advancing and 

she did not want to limit the courts in deciding which technology to use in a particular 

case.2 There is nothing in those discussions to suggest that the legislature was willing to 

approve an electronic monitoring system that provided less supervision than the 

supervision provided by the traditional steel cuff ankle monitoring used by the 

Department of Corrections. 

Instead, as the State points out, there are other discussions in the legislative 

history suggesting that the legislature was only interested in granting sentencing credit to 

1 See Minutes of House Judiciary Comm., House Bill 15, Remarks of Rep. Gabrielle 

LeDoux and Rep. Tammie Wilson, 01:36:33-01:38:00 (Mar. 18, 2015). 

2 Id. 

– 11 – 2610
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

monitoring systems that were at least as reliable and as accurate as the traditional 24-hour 

GPS-based steelcuffankle monitoring system. For example, the legislaturedismissed the 

idea that credit could be given to a person whose movements were tracked by a smart 

phone’s GPS system.3 The legislature concluded that such a system would not be 

sufficiently reliable because the defendant could easily circumvent the systemby handing 

the phone to another person.4 

The legislature likewise rejected an amendment proposed by Rep. Les Gara 

that would haveextended sentencing credit todefendants who weremonitored by24-hour 

live third-party custodians.5 Rep. Gara proposed this amendment because there are places 

in rural Alaska that do not have adequate GPS coverage to support electronic monitoring.6 

Although various legislators expressed concerns about the fact that some rural Alaskans 

would be excluded from the benefits of AS 12.55.027(d), the legislature ultimately 

rejected the amendment, concluding that third-party custodians were not as reliable as 

electronic monitoring and that third-party custodians could not provide the kind of 

instantaneous reporting of location violations that a 24-hour GPS-based system could.7 

3 See Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie 

Wilson, Remarks of Rep. Lynn Gattis, Remarks of Nancy Meade, General Counsel, Alaska 

Court System, 02:35:49-02:45:37 (Apr. 10, 2015). 

4 See Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Lynn Gattis, 

02:45:25-02:45:37 (Apr. 10, 2015). 

5 Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Les Gara, 

02:31:14-02:31:23, 02:46:54-02:47:30 (Apr. 10, 2015). 

6 Id. at 02:13:30-02:14:22. 

7 Minutes of House Finance Comm., House Bill 15, Remarks of Rep. Tammie Wilson, 

02:33:54-02:34:55; Testimony of Nancy Meade, General Counsel, Alaska Court System, 

(continued...) 

– 12 – 2610
 
 

 

 

 

 

 

 

Given this legislative history, it appears that Belknap faces an uphill battle 

in demonstrating that the modified SCRAM-only monitoring program was sufficiently 

comprehensive to qualify as “electronic monitoring” under AS 12.55.027(d). I also note 

that Belknap’s apparent drug use while on the modified SCRAM-only program presents 

a separate obstacle that Belknap must also overcome before he can be found eligible for 

the additional sentencing credit he seeks.8 

7 (...continued) 

02:45:55-02:46:09 (Apr. 10, 2015). 

8 AS 12.55.027(d) (“A court may grant credit against a sentence of imprisonment for 

time spent under electronic monitoring if the person has not committed a criminal offense 

while under electronic monitoring ...”); see also State v. Bell, __ P.3d __, Op. No. 2592, 2018 

WL 1221458, at *5 (Alaska App. Mar. 9, 2018) (explaining that the State bears the burden 

of production regarding any alleged new criminal offenses but the defendant bears the 

ultimate burden of persuasion). 

– 13 – 2610