author: EASTAUGH, Justice. MATTHEWS, Justice,

text:
    STATE of Alaska, Department of Health and Social Services, Division of Family and Youth Services, Petitioners, v. Sandra SANDSNESS and Marci Burnett, individually and as Personal Representative of the Estate of Richard P. Sandsness, and as parent and legal guardian and next friend of Ryan Burnett, Respondents.
    No. S-9910.
    Supreme Court of Alaska.
    May 23, 2003.
    Robert P. Blasco, Robertson, Monagle & Eastaugh, Juneau, for Petitioner State of Alaska.
    Ronald K. Melvin, Law Office of Ronald K. Melvin, Anchorage, for Respondents. [No brief filed.].

      Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Darrel Whitaker shot and killed Richard Sandsness seven weeks after the State of Alaska released Whitaker, a seventeen-year-old juvenile offender, from eustody. Sandsness's widow and daughter sued the state for negligence, alleging that it knew Whitaker had dangerous propensities. Denying summary judgment to the state, the superior court held that the state, in deciding whether to ask a court to extend Whitaker's state commitment, owed an actionable duty to exercise due care. We reverse. Imposing this duty would conflict with the state's goal of rehabilitating juvenile offenders and could reduce public safety in the long run.

II. FACTS AND PROCEEDINGS

Darrel Whitaker was placed on probation in early 1991 for vandalizing a vehicle and consuming alcohol. He was then fourteen years old. In August 1991, after he violated his probation conditions by possessing fire-starting devices and starting fires in a foster home, Whitaker was committed to the custody of the State of Alaska until August 9, 1993. The Alaska Division of Family and Youth Services (DFYS) placed him at McLaughlin Youth Center (MYC). In June 1993 his treatment supervisor recommended that Whitaker be released to his father's custody to work with his father in a remote logging camp. The recommendation stated that "[the prognosis for successful release and reintegration into society for Darrel is good." It noted the need to reunite him with his father and his "significant gains" during his stay at the youth center, and also stated that the "treatment team feels that the likelihood of any further progress while at MYC by Darrel would be minimal.... Reuniting Darrel with his father, providing an opportunity to continue his school, and the chance for employment would be the next logical treatment move for him." Two other DFYS workers approved this recommendation, which was then referred to a review board, which also approved it. Per the recommendation, DFYS released Whitaker to his father's custody on July 2, 1998, several weeks before his commitment period would have expired on August 9.

On August 21 Whitaker shot and killed Richard Sandsness, an Anchorage taxi cab driver, while attempting to rob him. Whitaker turned seventeen a month after his release and about three weeks before he murdered Sandsness.

The decedent's widow and daughter sued the state and others. They alleged in part that DFYS negligently failed to properly evaluate Whitaker before his release, negligently failed to adequately supervise or control him after his release, and negligently failed "to communicate to the proper decision makers" his allegedly "violent propensities." The state moved for summary judgment on various theories.

The superior court granted in part and denied in part the state's summary judgment motions. Relying on this court's decision in Division of Corrections v. Neakok, the superior court held that the state owed no duty to supervise or control Whitaker at the time of the murder because the crime occurred after Whitaker's period of commitment had expired. The superior court also held that the state owed no duty to warn the general public of Whitaker's dangerous propensity. The court initially declined to decide whether the state has a pre-release duty to petition a court to extend custody of a minor under AS 47.12.120(b)(1) if the state "is aware that the minor poses a danger to the general public." After the state moved for summary judgment on that issue, the superior court held that DFYS had a duty to act carefully and reasonably in deciding whether to ask the superior court to extend Whitaker's period of commitment. The court also held that DFYS's decision not to seek continued commitment of Whitaker was not immune from liability under the discretionary function immunity doctrine codified at AS 09.50.250(1) Accordingly, the court held that issues of material fact regarding whether the state breached this pre-release duty precluded summary judgment for the state.

The state petitioned for interlocutory review of the superior court's order denying the state's motion for summary judgment. We granted review under Appellate Rule 402(b)(2) and ordered full briefing.

III. STANDARD OF REVIEW

We review denials of summary judgment motions de novo to determine whether there are genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law, viewing all facts in the light most favorable to the non-movant. The existence and extent of a duty of care are questions of law which we review de novo.

IV. DISCUSSION

The state asks us to hold that the superior court erroneously determined that DFYS had an actionable duty to use due care in deciding whether to ask a court to extend Whitaker's commitment to the state. Analyzing this case under the REstaTEmMENT (SEconb) or Torts §§ 315 and 819 (1965), we conclude that the state did not owe the duty described by the superior court. We would reach the same conclusion if we were to employ the superior court's approach and apply the policy considerations adopted in DSW. v. Fairbanks North Star Borough School District and other policy considerations applicable to public agencies. Accordingly, we need not reach the other issues presented by the state's petition.

A. DFYS's Relationship with Juveniles Committed to Its Custody Does Not Give Rise to the Actionable Duty Imposed by the Superior Court.

The superior court held that DFYS's relationship with potentially dangerous juveniles committed to its custody justifies imposing an actionable duty on DFYS to exercise due care in determining whether to petition a court for continued commitment before release. The court noted that while there is generally no duty to prevent foreseeable harms committed by third parties, section 315 of the Restatement (SEconp) or Torts provides for an exception to this rule if the defendant has a special relationship with either the third party or the potential victim which justifies imposing such a duty.

Section 315 states the rule as follows: There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Section 319 describes the special relationship rule that potentially applies in this case:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

In holding that the state owed Sandsness an actionable duty, the superior court applied the so-called DSW. factors and treated Division of Corrections v. Neakok as controlling. This court held in Neakok that the state had a special relationship with a parolee, Justifying imposition of a tort duty to control the parolee both because the state had a substantial ability to control him and because it had the "ability to foresee the dangers the parolee poses" to society upon release. The superior court determined that this rationale is equally applicable here, because the state had ample opportunity to observe Whitaker and substantial ability to postpone his release.

The state contends that Neakok and other cases finding special relationships are inap-posite because DFYS did not have any ability to control Whitaker at the time of the murder. The state argues that its special relationship with Whitaker ended with the original two-year commitment, which expired twelve days before the murder. Without a contemporaneous special relationship, the state argues, there is no basis for imposing a duty to control. We need not decide whether these propositions have merit because our agreement with another argument advanced by the state resolves this petition.

The state's argument that is disposi-tive relies on and quotes from Sorge v. State in contending that imposing a duty to control on the basis of DFYS's relationship with Whitaker would "disturb the delicate balance the Legislature has crafted between the best interests of children and the broader interests of public safety." In Sorge, the Vermont Supreme Court rejected the plaintiffs' contention that the state had an actionable duty under RestatEmEnt § 819 to control a juvenile who assaulted a newspaper delivery man during a weekend leave with his mother. While agreeing that the state had a "special relationship" with juveniles committed to its custody, the Vermont Supreme Court rejected the contention that the state's exclusive purpose was to "control" those juveniles for the protection of the public. Accordingly, the court refused to impose liability on the state for harm caused by third persons released from a state rehabilitative program. - The court surveyed relevant case law and noted that similar attempts to impose lability had been rejected by courts "that have recognized that most juvenile and adult programs dealing with persons committed to the custody of the State are intended to rehabilitate conduct rather than control it. " The court reasoned that tort liability for negligent release decisions could pressure states to " 'err more often on the side .of excessive detention" This would "erode the public policy of rehabilitation of juveniles through reunification with their families and the public."

The Vermont Supreme Court's reasoning applies with equal foree in Alaska. We have recognized that "rehabilitation rather than punishment is the express purpose of juvenile jurisdiction. * - Successful rehabilitation demands the earliest possible reintegration of the juvenile with his family and community consistent with public safety. The Alaska legislature has already crafted a balance between the interests of the child and the broader interest of public safety. Alaska Statute 47.12.120(b)(1) provides that the state may petition for and the court may grant extensions of commitment "if the extension is in the best interests of the minor and the public." (Emphasis added.) Further, AS 47.12.260 permits DFYS to release juveniles at any time-without court approval-'"if it appears to the satisfaction of the department that there is a reasonable probability that the minor will remain at liberty without violating the law." Emphasis added.) Thus, the legislature has allocated the risk of repeat offenses to the public in exchange, presumably, for offsetting gains realized by rehabilitating juvenile offenders to make them productive members of society." Imposing tort liability for harm caused by released juveniles would distort this balance.

A minor found to be a juvenile delinquent who by conduct gives sufficient evidence of having reformed may be released at any time under the conditions and regulations that the department considers proper, if it appears to the satisfaction of the department that there is a reasonable probability that the minor will remain at liberty without violating the law.

At least one state supreme court has implicitly rejected this analysis-at least with respect to adult parolees. In Grimm v. Arizona Board of Pardons & Paroles, the Arizona Supreme Court relied on RESTATEMENT § 319 to impose liability on a parole board for harms caused by a negligently released parolee. The parole statute authorized release of prisoners only if there was a "reasonable probability that [the parolee] will live and remain at liberty without violating the law." The court explained that, absent such reasonable probability, parole was not authorized and the board members could not receive immunity for granting parole. The court held that:

The board members should not bear liability for taking the risk allocated to them as a statutory duty. If it reasonably appears that the applicant is a good risk, the board members should not be liable if it turns out that they guessed wrongly.[ ]

Under this view, tort liability for negligent release would simply reinforce rather than distort the legislative scheme-the parole board could only be held liable when reasonable jurors could find that the board subjected the public to a greater risk than that authorized by law.

The superior court in the case before us took a similar position. Noting that DFYS was already obligated under its own regulations to consider petitioning the court for continued commitment during its pre-release review,"" the court implicitly reasoned that imposing liability for a negligent failure to do so would not distort the proper balance between rehabilitation of juveniles and protection of the public. But the court also stated that "[in order to prevent future harm, the State must ensure that a potentially dangerous juvenile delinquent is not released." (Emphasis added.) This may be an understandable position in light of the ensuing tragedy in this case. But it illustrates the danger of using tort liability to police the state's discretion in the area of juvenile corrections-the state may well err on the side of excessive detention" to avoid negligence suits or judgments. This may seem to be good policy for citizens going about their private affairs, but it would unduly frustrate the primary goal of our juvenile justice system-rehabilitation.s In exchange for theoretical short-term benefits, the long-term benefits resulting from rehabilitation might be lost or diminished. The benefits of rehabilitation are not limited to those personal to the juvenile; they also include reducing the chances the juvenile will commit new crimes even as an adult. Accordingly, we hold that the state's special relationship with juvenile offenders in its custody does not justify imposing liability for negligently failing to petition the court to extend their commitment.

The superior court decision denying summary judgment to the state on the pre-re-lease liability claim discussed Neakok in some detail and treated it as persuasive when the superior court conducted its D.S.W. analysis. In Neakok this court held that the state's supervisory relationship with its parolees justified imposing a duty to use care to prevent a parolee with known dangerous propensities from causing foreseeable injuries to other people The facts of that case are distinguishable from the facts here. The releasee there was an adult whose release was mandatory. Although the state had no authority to extend his confinement or ask the court to do so, it had authority to impose conditions on his release. Whitaker, however, was a juvenile offender. The social interest in rehabilitating juvenile offenders strongly outweighs any interest in making the state liable for loss resulting from new crimes that might have been prevented had the state asked the court to delay the juvenile's release. The prospect of state tort liability should not be a factor in deciding whether to release a juvenile offender. Neakok does not control the case now before us.

We consequently conclude that RestatE. mMExnt § 319 did not impose a tort duty on the state to seek a court-ordered extension of Whitaker's state commitment.

B. The D.S.W. Considerations Would Not Justify Imposing a Duty Here.

In D.SW. v. Fairbanks North Star Borough School District we adopted a list of considerations used by the California courts to decide whether, as a matter of policy, a tort duty should be imposed. Although we have observed that there is no need to rely on the D.S.W. factors in deciding whether an actionable duty exists if the duty issue is governed by recognized principles of tort law, we have nonetheless sometimes referred to those factors in considering whether a "special relationship" gives rise to an actionable duty." The ultimate question, of course, is whether the nature of the relationship imposes a duty to do particular things to control another. For the reasons discussed in Part IV.A, the pre-release relationship between the state and Whitaker did not give rise to a duty to ask the court to extend his commitment.

The state relies prominently on the D.S.W. factors here, as did the superior court, and as we did in Neakok and in other cases in which there were special relationships. We therefore briefly discuss those factors to confirm our conclusion that the state had no common-law tort duty based on its special relationship with Whitaker. We conclude that if those factors did control our analysis, they would not justify imposing a tort duty here.

While the most important single D.S.W. factor is foreseeability," we also consider the degree of certainty that the plaintiff suffered injury, the closeness of connection between the defendant's conduct and the plaintiff's injury, the moral blame attached to the defendant's conduct, the policy of preventing further harm, and the extent of the burden to the defendant and consequences to the community of imposing a burden of care." When a public agency is involved, we further consider the extent of the agency's power, the role imposed on it by law, and the limitations imposed on it by budget.

The state may only be held liable for negligently failing to seek Whitaker's continued commitment "if it could have foreseen that its failure to do so might cause harm to [Sandsness]." - The superior court held that it was foreseeable Whitaker continued to pose a threat to society, given the state's extensive record of Whitaker's preoccupation with, and tendency towards violence, as well as his behavioral problems at MeLaughlin Youth Center and other state institutions. The state argues that DFYS's general knowledge of Whitaker's dangerous propensity is insufficient to satisfy the foreseeability requirement.

The state places great weight on Dins-more-Poff v. Alvord. But that case did not present the legal question whether the relationship was such that it could give rise to an actionable duty to control another. Rather, the question was whether there was sufficient evidence to allow a jury to decide whether parents had reason to control their child. We noted that "[the [parents] were undisputedly on general notice of [their son's] dangerous propensity" before Dins-more's murder. But we affirmed the lower court's ruling because the plaintiffs did not present any evidence which could allow a jury to believe that the parents had a duty to act to prevent their son from committing a specifically - and - imminently - foreseeable harm.

The superior court here noted that we rejected a similarly narrow view of foreseeability in discussing the duty issue in Neak-ok. We there concluded that the parolee's "victims and his actions were within the zone of foreseeable hazards of the state's failure to use due care in supervising [the parolee]. As we said more recently, "In the context of determining the existence of a duty, we have made it clear that foreseeability is a broad concept and does not require that the precise harm in a given case be predictable."

The superior court discussed evidence that Whitaker had violent propensities. (Given what the state did know, we assume that it was sufficiently foreseeable that Whitaker might commit new crimes after his release from custody to satisfy the first D.S.W. duty consideration.

But foreseeability alone would not necessarily justify imposing a duty to act here. We have declined to impose a duty in some cases in which foreseeability was present. Here the remaining considerations would strongly outweigh the foreseeability factor and complement our analysis under RestatE-mMEnt § 319.

There is no dispute that Sandsness suffered injury. But the connection between the consequence of Whitaker's crime and the state's failure to act is attenuated. As the state notes, DFYS could not have unilaterally extended Whitaker's commitment under AS 47.12.120(b)(1)-the superior court would have had to decide whether to grant the state's extension petition. The state's petition would have been a necessary, but not sufficient condition, for extending the commitment. Because Whitaker presented no particularized threat (as to when he might act, and against whom), the timing of his release was not obviously critical. As a juvenile offender, his commitment could not be extended indefinitely. It is not obvious that extending his commitment would have made him less likely to commit violent acts sometime after his eventual release."

Regarding the degree of moral blame, the state persuasively argues that DFYS's decision not to seek a commitment extension is consistent with the established policy of attempting to rehabilitate juveniles by reintegrating them with their families and the public. Accordingly, the state cannot be blamed for the recognized risks that potentially dangerous juveniles generally pose to society upon release.

Likewise, the policy of preventing future harm would not obviously be served by imposing a duty. Under AS 47.12.010(b), initial commitment periods cannot extend beyond the juvenile's nineteenth birthday, and re-commitment periods cannot extend beyond the juvenile's twentieth birthday. As the state admits, there is no clear correlation between the length of commitment and the rate of recidivism. Thus, there is no reason to believe that incarcerating all dangerous juveniles until their twentieth birthdays would likely produce a safer society,. The opposite conclusion is. at least equally likely. Society's commitment to the goal of rehabilitating juveniles by reintegrating them with their families and the public reflects an implicit belief that early reintegration is more likely to maximize public safety in the long-term than prolonged isolation of juveniles from their families and the broader community of law-abiding citizens.

The remaining D.S.W. factors include the burden on the defendant and the community if a duty of care were imposed, and considerations of the agency's appropriate role and the power accorded to it by law." Collectively, these considerations strongly suggest that we should not impose an actionable duty to petition for commitment extensions for dangerous juveniles.

The state persuasively argues that imposing the duty described by the superior court would lead DFYS to petition to recommit virtually every juvenile with dangerous propensities, because it is impossible to accurately predict which are likely to engage in future criminal activity. - Likewise, the state would be discouraged from releasing these juveniles early (as happened here when DFYS released Whitaker about five weeks before his commitment was to expire). Both results would seriously undermine the goal of rehabilitation.

Also, imposing a duty here would make the courts the sole arbiters of whether Alaska's juvenile offenders should be recommitted. Imposing a duty would encourage DFYS to petition for continued commitment in every questionable case to shield itself from potential liability, shifting the recommitment decision to the courts. This is contrary to the arrangement created by AS 47.12.120(b)(1). The statute requires DFYS and the court to agree to extend a juvenile's commitment period. This structural check against either institution's willingness to recommit juvenile offenders would be frustrated by imposing a civil tort duty.

Additionally, the professionals at DFYS are arguably better suited than the courts to weigh the risks of release against any net benefits of continued commitment. The duty described above could deprive the courts of DFYS's most candid appraisal, because DFYS could not simultaneously petition for continued commitment for the sake of avoiding liability and represent that, in its best judgment, further commitment is not worthwhile. The state further notes that the courts' resources would be significantly strained by requiring them to sereen recom-mitment petitions for possibly 150 juveniles each year.

Finally, there is no principled way to limit the duty imposed by the superior court to the relatively minor governmental function of petitioning the superior court for commitment extensions of juveniles with known dangerous propensities.

v. CONCLUSION

We therefore conclude that imposing the duty described by the superior court would interfere with the state's goal of rehabilitating youthful offenders without yielding any predictable gains in public safety. We accordingly REVERSE and REMAND for entry of summary judgment for the state.

MATTHEWS, Justice,

with whom FABE, Chief Justice, joins, concurring.

I agree with the rationale and the result of today's opinion. But I think that our decision in Division of Corrections v. Neakol!' should be overruled rather than merely distinguished and questioned.

We will overrule a prior decision when we are "clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent."" In my view this standard has been met regarding Neakok. The decision in that case as to the duty to impose parole conditions is not sound, in my opinion, because it imposes liability for decisions that are inherently discretionary as they involve balancing the sometimes conflicting goals of rehabilitation and protection of the public. Like initial sentencing decisions, this is an area where state officials should not be second-guessed in a tort trial. The result of Neakok, I believe, has been to cause corrections officials to err on the side of restrictiveness when considering discretionary parole. Today's opinion recognizes these problems in the context of juvenile justice and recognizes that they may also apply to adult corrections.

In my judgment, we should frankly recognize that Neakok is unsound and overrule it rather than allow it to continue to work its mischief.

      . 721 P.2d 1121 (Alaska 1986).

      . The court held that the specific decision-makers-as opposed to the state-were nonetheless immune from suit under the doctrine of official immunity.

      . Appellate Rule 402(b)(2) authorizes discretionary review before final judgment where "[the order or decision involves an important question of law ... and an immediate review ... may advance an important public interest which might be compromised if the petition is not granted."
      Counsel who originally appeared for respondents responded to the state's petition for review but filed no brief after we granted the petition and ordered briefing. New counsel appeared for respondents after briefing and argument were complete.

      . P.G. v. State, Dep't of Health & Human Servs., 4 P.3d 326, 330 (Alaska 2000).

      . Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 109 (Alaska 1992).

      . 628 P.2d 554, 555 (Alaska 1981).

      . The petition presents two additional questions: (1) is deciding whether to ask a court to extend the commitment period a "discretionary function" entitled to immunity under AS 09.50.250(1); and (2) could a jury properly find that the state's failure to ask a court to extend that commitment caused Sandsness's injury.

      . Cf. Neakok, 721 P.2d at 1126 (citing Restate. ment (SEconp) or Torts § 315 (1965)).

      . D.S.W. v. Fairbanks North Star Borough Sch. Dist., 628 P.2d 554, 555 (Alaska 1981).

      . 721 P.2d 1121 (Alaska 1986).

      . Id. at 1126. This court accordingly held that "[gliven this special relationship, it is not unreasonable to impose a duty of care on the state to protect the victims of parolees." Id. at 1126-27.

      . Sorge v. State, 171 Vt. 171, 762 A.2d 816, 823 (2000).

      . Id. at 817-18, 820-23.

      . Id. at 820-23.

      . Id. at 820 (citing Rivers v. State, 133 Vt. 11, 328 A2d 398, 400 (1974) (refusing to impose liability on state "where there is release on probation or parole, or even for early release based on good time")).

      . Id. at 820-21.

      . Id. at 821 (quoting Ruf v. Honolulu Police Dep't, 89 Hawai'i 315, 972 P.2d 1081, 1093 (1999)).

      . Id. at 822 (citing Vermont's statutory scheme for juvenile corrections and noting express purposes of rehabilitation and reintegration with society).

      . Rust v. State, 582 P.2d 134, 140 n. 21 (Alaska 1978); see also AS 47.12.010 ("The goal of this chapter is to promote a balanced juvenile justice system" which will protect the public and help juveniles develop into productive citizens).

      . See AS 47.05.060 ("The purpose of this title as it relates to children is to secure for each child the care and guidance, preferably in the child's own home, that will serve the ... welfare of the child and the best interests of the community ...."};, of. Maiter of SD., 549 P.2d 1190, 1199 (Alaska 1976) ("[Rlemoval of children from the family home may be a drastic, traumatic and emotionally damaging experience which is justified only under extreme conditions. Children should, if at all possible, be maintained in their homes with society providing the supportive services necessary to keep the family together.").

      . AS 47.12.120(b) provides in pertinent part:
      If the minor is not subject to (j) of this section and the court finds that the minor is delinquent, it shall
      (1) order the minor committed to the department for a period of time not to exceed two years or in any event extend past the day the minor becomes 19 years of age, except that the department may petition for and the court may grant in a hearing (A) two-year extensions of commitment that do not extend beyond the minor's 19th birthday if the extension is in the best interests of the minor and the public; and (B) an additional one-year period of supervision past age 19 if continued supervision is in the best interests of the person and the person consents to it; the department shall place the minor in the juvenile facility that the department considers appropriate and that may include a juvenile correctional school, juvenile work camp, treatment facility, detention home, or detention facility; the minor may be released from placement or detention and placed on probation on order of the court and may also be released by the department, in its discretion, under AS 47.12.260;
      (2) order the minor placed on probation, to be supervised by the department, and released to the minor's parents, guardian, or a suitable person; if the court orders the minor placed on probation, it may specify the terms and conditions of probation; the probation may be for a period of time not to exceed two years
      and in no event to extend past the day the minor becomes 19 years of age, except that the department may petition for and the court may grant in a hearing | _
      (A) two-year extensions of supervision that do not extend beyond the minor's 19th birthday if the extension is in the best interests of the minor and the public; and
      (B) an additional one-year period of supervision past age 19 if the continued supervision is in the best interests of the person and the person consents to it;
      (3) order the minor committed to the custody of the department and placed on probation, to be supervised by the department and released to the minor's parents, guardian, other suitable person, or suitable nondetention setting such as with a relative or in a foster home or residential child care facility, whichever the department considers appropriate to implement the treatment plan of the predisposition report; if the court orders the minor placed on probation, it may specify the terms and conditions of probation; the department may transfer the minor, in the minor's best interests, from one of the probationary placement settings listed in this paragraph to another, and the minor, the minor's parents or guardian, the minor's foster parent, and the minor's attorney are entitled to reasonable notice of the transfer; the probation may be for a period of time not to exceed two years and in no event to extend past the day the minor becomes 19 years of age, except that the department may petition for and the court may grant in a hearing
      (A) two-year extensions of commitment that do not extend beyond the minor's 19th birthday if the extension is in the best interests of the minor and the public; and
      (B) an additional one-year period of supervision past age 19 if the continued supervision is in the best interests of the person and the person consents to it....

      . AS 47.12.260 provides:

      . One study in Pennsylvania cited in the state's brief found that fifty-five percent of all released juvenile offenders were subsequently rearrested. See In the Interest of J.R., 436 Pa.Super. 416, 648 A.2d 28, 36-37 (1994).

      . 115 Ariz. 260, 564 P.2d 1227, 1234 (1977).

      . Id. at 1232 (quoting ArizRev.Srar § 31-412 (1977) (amended 1978)).

      . Id.

      . Id.

      . See 7 Alaska Administrative Code (AAC) 52.210 (2002) (providing that review board must consider several factors "[in determining whether a resident should be released, whether the resident's commitment should be allowed to elapse, or whether a recommendation should be made for continued commitment") (emphasis added).

      . Sorge, 762 A.2d at 821 (quoting Ruf, 972 P.2d at 1093).

      . Rust, 582 P.2d at 140 n. 21.

      . 721 P.2d at 1130, 1132.

      . The state's brief in this case has not asked us to overrule Neakok. We recognize that considerations similar to those that we find dispositive here may bear on correctional decisions regarding adult offenders. Because we have not been asked to overrule Neakok, because the question whether to do so has not been briefed (indeed, the respondents have filed no brief), and because the present case is factually distinguishable, we decline to consider sua sponte whether Neakok remains good law or should be overruled.

      . 628 P.2d at 555 (citing Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854, 859-60 (1976).

      . See, eg., Kallstrom v. United States, 43 P.3d 162, 167 (Alaska 2002); Wongittilin v. State, 36 P.3d 678, 681 (Alaska 2001); Waskey v. Municipality of Anchorage, 909 P.2d 342, 343-44 (Alaska 1996).

      . See, eg., P.G. v. State, Dep't of Health & Human Servs., 4 P.3d 326, 331 (Alaska 2000); RE. v. State, 878 P.2d 1341, 1347 (Alaska 1994); Neakok, 721 P.2d at 1125.

      . Cf. P.G., 4 P.3d at 334; M.A. v. United States, 951 P.2d 851, 854 n. 6 (Alaska 1998).

      . See, eg., RE., 878 P.2d at 1347 (holding there was duty under D.S.W. analysis and then confirming that this holding was "consistent" with common-law special relationship principles); Neakok, 721 P.2d at 1125.

      . Neakok, 721 P.2d at 1125.

      . Id.

      . Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 733 (1980).

      . Neakok, 721 P.2d at 1127. Neakok explained that "[wlhile a specific case-by-case determination of foreseeability and causation lies within the province of a jury, the existence of a duty is a question of law." Id. at 1127 n. 7. Thus, in reviewing whether Whitaker's crime was sufficiently foreseeable to justify imposing a duty, we are not deciding whether the state should have foreseen the crime. Id. Rather, we are deciding whether, as a matter of judicial policy, a jury should be permitted to consider whether Whitaker's actions were foreseeable. Cf. Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1203-05 (Alaska 1998) (holding summary judgment appropriate where undisputed facts compel conclusion that one party owed no duty to other).

      . 972 P.2d 978 (Alaska 1999).

      . Id. at 985.

      . Id. at 987.

      . 721 P.2d at 1128-29.

      . Id. at 1129.

      . P.G., 4 P.3d at 331 n. 11.

      . Whitaker's initial probation and commitment to the state's custody arose out of property crimes and underage consumption of alcohol. But Whitaker's institutional record included several documented escape plans involving "the planned usage of weapons that could cause deadly injuries," at least one unprovoked assault on another resident, and a period of treatment in the facility's Intensive Behavioral Adjustment Program. Whitaker apparently did not have a history of actually committing violent acts before his release.

      . - Mesiar v. Heckman, 964 P.2d 445, 450 (Alaska 1998); Kooly v. State, 958 P.2d 1106, 1109-10 (Alaska 1998); Karen L. v. State, Dep't of Health & Soc. Servs., 953 P.2d 871, 876 (Alaska 1998); Schumacher v. City & Borough of Yakutat, 946 P.2d 1255, 1257 n. 3 (Alaska 1997); Hawks v. State, 908 P.2d 1013, 1016 (Alaska 1995); Estate of Day v. Willis, 897 P.2d 78, 82 (Alaska 1995).

      . The state further suggests that Whitaker's intentional murder of Sandsness severs DFYS's connection to the tragedy. But Neakok rejected a similar argument, reasoning that the parolee's intentional acts do not relieve the state of liability when those are the very acts the state may be under a duty to take reasonable steps to predict and prevent. 721 P.2d at 1136 n. 21.

      . See Neakolg, 721 P.2d at 1125; Thompson, 167 Cal.Rptr. 70, 614 P.2d at 733.

      . Neakok, 721 P.2d at 1130 n. 13 (recognizing difficulties inherent in predicting potential dangerousness of released prisoners).

      . See supra Part IV.A.

      . See AS 47.12.120(b)(1) ("[The department may petition for and the court may grant ... extensions of commitment...."). In contrast, either the court or DFYS can release a juvenile before his commitment period lapses. I4.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    CARR-GOTTSTEIN PROPERTIES, LIMITED PARTNERSHIP, Appellant, v. Ruth L. BENEDICT and Gerry L. Zeek, Appellees.
    No. S-10579.
    Supreme Court of Alaska.
    June 20, 2003.

      Dani Crosby and William S. Cummings, Ashburn & Mason, P.C., Anchorage, for Appellant.
    No appearance by Appellees.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

A lot owner violated a covenant in her subdivision by taking more than one year to finish construction on her lot. The covenant contained a flat-rate, per diem liquidated damages provision for covenant violations. The issue presented by this appeal is whether flat-rate, per diem liquidated damages can be charged for construction delays that violate subdivision covenant regulations. We reverse the superior court and hold that such a clause is permissible in this case because the developer's liquidated damages clause attempts to address a situation where it would be difficult to ascertain actual damages or to reasonably forecast the damages likely to oceur in the event of breach.

II. FACTS AND PROCEEDINGS

Carr-Gottstein Properties developed the Southport Subdivision Addition No. 1 in Anchorage. Carr-Gottstein executed a Declaration of Covenants, Conditions and Restrictions (CC & R) that regulates the use of lots within the subdivision. One covenant in the CC & R requires owners of lots within the subdivision to complete any construction of a dwelling within one year. A purpose of this one-year covenant is to protect the aesthetics of the subdivision. The CC & R contains a liquidated damages clause that provides a $25 daily fine for any violation of the CC & R.

Ruth Benedict owned Lot 15, Block 4 in the Southport Subdivision Addition No. 1 (Lot 15). On September 20, 1999, Benedict began construction on her lot. On October 31, 2000, Carr-Gottstein gave Benedict written notice that Benedict was in violation of the one-year construction limitation covenant.

Carr-Gottstein filed suit to require completion of the construction and for assessment of liquidated damages. Carr Gottstein moved for partial summary judgment on the question whether Benedict was in compliance with the covenant. Benedict opposed Carr-Gottstein's motion and filed a eross-motion for summary judgment challenging the validity of the liquidated damages provision. The trial court granted both motions for summary judgment, finding that Benedict was not in compliance with the covenant but also that the CC & R's liquidated damages clause was impermissible because of our ruling in Kalenka v. Taylor Carr-Gottstein now appeals the granting of Benedict's motion for summary judgment.

III. STANDARD OF REVIEW

The general enforceability of flat-rate per diem liquidated damages clauses is a question of law. Whether a particular liquidated damages clause is validly applied is a mixed question of law and fact. What legal test a court should apply in determining the validity of a liquidated damages clause is a legal issue Whether facts in a particular case meet the proper liquidated damages test is a factual determination. For questions of law, the standard of review is de novo; we adopt the rule of law that is most persuasive in light of precedent, reason, and policy. We review a court's factual determinations under the clearly erroneous standard.

IV. DISCUSSION

Generally, parties to a contract are free to stipulate in advance an amount "to be paid as compensation for loss or injury which may result in the event of a breach of the contract, and such stipulations are valid and enforceable." However, such an advance stipulation may only provide compensation for breach of the contract and may not serve as a penalty that punishes the breaching party. Contractual penalties serve no positive purpose, which is why courts do not enforce them. Courts must determine on a case-by-case basis whether a damages provision is a valid liquidated damages clause or an unenforceable penalty.

We 'have instructed trial courts to employ a two-step test in making their determinations regarding the validity of liquidated damages clauses: "Liquidated damages clauses are proper ... where 'it would be difficult to ascertain actual damages," and where the liquidated amount [is] 'a reasonable forecast of the damages likely to occur in the event of breach." "* The Restatement of Contracts uses this widely adopted test.

- Carr-Gottstein's liquidated damages clause meets the first part of our test. The liquidated damages. clause in question is meant to address the aesthetic harm caused by delays in construction. In its summary judgment decision, the superior court found that "the damages caused by [Benedict's] breach are of an aesthetic nature which result in damages that are difficult to quantify, but which nonetheless require a remedial response[.]" Moreover, it is generally accepted that injuries caused by construction delays are "nearly always difficult to determine...." - Carr-Gottstein's _- liquidated damages provision thus meets the first requirement of our liquidated damages test.

Carr-Gottstein's clause also meets the see-ond part of our test, as a $25 daily fine is "a reasonable forecast of the damages" likely to occur as a result of this covenant breach. First, because "injury caused by [construction] delay is nearly always difficult to determine," courts are strongly inclined to accept and enforce an amount agreed to in a liquidated damages provision for construction delay. Furthermore, the per diem liquidated damages provision takes into account the magnitude of the breach because the temporal length of the breach in this situation affects the magnitude of the breach. One purpose of the one-year limitation on construction is protection of the subdivision's aesthetics. Lots with unfinished construction often contain work equipment, displaced earth, unfinished edifices, and other unpleasant sights. Such aesthetic blight harms the sale value of other lots within the subdivision and hampers the other lot owners' enjoyment of their property. Each additional day of unfinished construction prolongs this harm, and its magnitude, therefore, is correlated to its temporal length. In setting a per diem fee, Carr-Gottstein's liquidated damages provision attempts to reasonably forecast damages by assigning different damages to breaches of different magnitudes.

The superior court also agreed that Carr-Gottstein's $25 per diem liquidated damages clause was an attempt to ascertain approximate damages, rather than an attempt to set a penalty: "The $25 liquidated damages provision in the current case is much more in keeping with the type of provisions commonly allowed for breach of covenant claims." Because the liquidated damages provision in question meets both prongs of our test and is not a penalty, it is enforceable.

In properly applying our two-prong test, the superior court made factual determinations that suggested it would have preferred to enforce the liquidated damages provision in question. The superior court apparently determined, however, that it could not enforce Carr-Gottstein's liquidated damages provision as a matter of law due to our decision in Kalenka v. Taylor. In its ruling, the trial court stated that the liquidated damages clause in question "would be perfectly reasonable, but for the ruling in Kalen-ka." Relying on Kalenka, the trial court concluded that "the failure to differentiate between degrees of covenant violations is fatal to the liquidated damages provision of a covenant." The Kalenka and Carr-Gottstein damages clauses are similar in that they both set flat-rate per diem fees for covenant violations. Kalenka's holding, however, does not prohibit all flat-rate per diem damages clauses. Thus, our holding in Kalenka does not in itself make Carr-Gottstein's liquidated damages clause unenforceable.

Kalenka continues our line of cases in which we forbid punitive damages for contractual breaches. Although courts generally enforce bargains according to their terms," public policy limits this principle. We stated in Kalenka that the lack of a public policy justification for allowing punitive contractual damages prevents us from permitting such damages: "Punishment of a promisor for having broken his promise has no justification on either economic or other grounds, and a term providing such a penalty is unenforceable on grounds of public policy.

We found such a penalty provision to be unenforceable in Kalenka, where the developer of a subdivision had executed a restrictive covenant that contained the following liquidated damages clause: "A penalty of $1000.00 per day shall be assessed for unapproved construction." In affirming the trial court's dismissal of this liquidated damages clause, we observed two troubling aspects of the clause. First, we noted that the clause was, on its face, a penalty provision: "We ..20. are inclined to disallow the 'penalties' sought by the Kalenkas based on their moniker alone." Second, we were concerned that the $1,000 per day penalty failed to distinguish between types of contractual breaches. While discussing this second point in Kalenka, we reaffirmed our previous treatment of liquidated damages clauses by holding that a liquidated damages clause is invalid when there is no attempt to forecast actual damages. We added that "(aln indication of this lack of calculation is deemed present when the amount of stipulated damages is the same for a total or partial breach, or for breach of minor or major contract provisions.

We distinguish Carr-Gottstein's liquidated - damages clause from that in Kalenka in two ways. First, Carr-Gottstein does not de-seribe the CC & R's liquidated damages clause as a penalty provision. Second, and more importantly, Carr Gottstein's $25 per diem provision is substantively different from Kalenka's $1,000 per diem penalty. When we disapproved of the $1,000 per day penalty in Kalenka, we were not frowning on the flat-rate per diem aspect of the clause. In fact, we have recognized the validity of flat-rate liquidated damages for per diem violations: "[TThere is no legal objection to stating liquidated damages in terms of a per diem percentage of the contract price or in terms of a stated sum per day...." Additionally, as noted above, the magnitude of the breach in this case is directly linked to its temporal length; consequently, the flat-rate per diem damages provision assigns different damages to different levels of breach.

Rather than criticizing the flat-rate per diem aspect of Kalenka's penalty provision, we reasoned that the $1,000 liquidated damages provision was flawed because it assigned a high penalty to all breaches, whether they were major or minor. For example, "an unapproved alteration to a fence calls for the same penalty as the unapproved construction of a building." Liquidated damages provisions are meant to compensate and not to punish, and it is hard to imagine that an unapproved alteration to a fence could justify daily compensation of $1,000. In other words, it was the disproportionately high penalty, not the flat-rate per diem aspect of Kalenka's liquidated damages clause, that we found problematic. In assigning a high flat-rate per diem penalty, the Kalenkas did not attempt to forecast actual damages; rather, they attempted to maximize a penalty.

The $25 per diem damages clause in this case is different. As the superior court noted, "[ulnlike the current situation, the provision at issue in Kalenka was a penalty provision rather than a damages provision and the amount provided was quite extreme." The superior court clearly made the factual determination that, instead of asserting a high, penalty-like per diem charge for any violation, Carr-Gottstein incorporated a legitimate damages provision into its subdivision covenant. This finding was not clearly erroneous.

v. CONCLUSION

Because Kalenka does not prohibit reasonable flat-rate per diem liquidated damages clauses and because the superior court recognizes Carr-Gottstein's clause as a reasonable liquidated damages clause, we REVERSE the court's grant of summary judgment to Benedict and order the superior court to grant Carr-Gottstein liquidated damages.

      . This covenant is located in Article VII, Section 7.8 of the CC & R.

      . 896 P.2d 222 (Alaska 1995).

      . After the summary judgment motion, Matrix General, Inc. bought Lot 15 in a judicial foreclosure sale. Carr-Gottstein added Matrix General, Inc. as a defendant. Subsequently, Gerry Zeek bought the lot from Matrix General, Inc. The trial court then substituted Gerry Zeek as the real party in interest for Matrix General, Inc.

      . When there is a mixed question of law and fact, we will evaluate the legal and factual issues separately. Wyller v. Madsen, 69 P.3d 482, 485, (Alaska 2003); see also Central Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 277 (Alaska 2002); Nickels v. Napolilli, 29 P.3d 242, 246-47 (Alaska 2001).

      . Central Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 277 (Alaska 2002).

      . Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

      . Gillum v. L & J Enters. 29 P.3d 266, 268 (Alaska 2001).

      . Annotation, Contractual Provision for Per Diem Payments for Delay in Performance as One For Liquidated Damages or Penalty, 12 A.L.R.Ath 891, 899 (1982).

      . See id.

      . - Resratement (Seconp) or Contracts § 356 cmt. a (1981).

      . 11 Artaur Linton Coren & Jorn E. Murray, Jr, Corsin on Contracts § 1057 (Interim ed. 1964 & Supp.2002).

      . Zerbetz v. Alaska Energy Ctr., 708 P.2d 1270, 1281 (Alaska 1985) (quoting Williwaw Lodge v. Locke, 601 P.2d 236, 239 (Alaska 1979)).

      . Restatement (SEcomp) or Contracts § 356(1) (1981); see also 22 Damages § 690 (1988); Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stam. L.Rev. 211, 225 (1995) Milton Constr: Co. v. State Highway Dep't, 568 So.2d 784, 790 (Ala. 1990); Powder Horn Constrs., Inc. v. City of Florence, 754 P.2d 356, 365 (Colo.1988); Brazen v. Bell Atlantic Corp., 695 A.2d 43, 48 (Del.1997); Sun Ridge Investors, Ltd. v. Parker, 956 P.2d 876, 878 (Okla.1998); Phillips v. Phillips, 820 SW.2d 785, 788 (Tex.1991).

      . 11 Cormmnt on Contracts § 1072 (Interim ed. 1964 & Supp.2002).

      . Id.

      . 896 P.2d 222 (Alaska 1995).

      . See, eg., Lee Houston & Assocs. v. Racine, 806 P.2d 848, 856 (Alaska 1991) (reiterating that punitive damages only available if conduct constituting breach also constitutes independent tort); ARCO Alaska, Inc. v. Akers, 753 P.2d 1150, 1153 (Alaska 1988) (same).

      . Melvin Aron Eisenberg, The Limits of Cognition and the Limits of Contract, 47 Stan. L.Rev. 211, 211 (1995).

      . Kalenka, 896 P.2d at 229 (quoting Restatement (SEconp) or Contracts § 356 cmt. a (1981)); see also 22 Am Jur.2n Damages § 686 (1988).

      . Kalenka, 896 P.2d at 229.

      . Id.

      . Id.

      . Id. (quoting Unified Sch. Dist. No. 315 v. DeWerff, 6 Kan.App.2d 77, 626 P.2d 1206, 1209 (1981)).

      . Arctic Contractors, Inc. v. State of Alaska, 564 P.2d 30, 49 (Alaska 1977), disapproved of on an unrelated matter by Native Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1219 (Alaska 1984).

      . Kalenka v. Taylor, 896 P.2d at 229 (internal quotations omitted).

      . 721 P.2d 1121 (Alaska 1986).

      . State v. Coon, 974 P.2d 386, 394 (Alaska 1999).


author: BRYNER, Justice.

text:
    Juliann DUFFUS, Appellant, v. Kenneth DUFFUS, Appellee.
    No. S-10206.
    Supreme Court of Alaska.
    June 20, 2003.

      Peggy A. Roston, Law Office of Peggy A. Roston, Anchorage, for Appellant.
    William S. Cummings, Ashburn & Mason, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

BRYNER, Justice.

I. INTRODUCTION

Juliann Duffus divorced Kenneth Duffus in 1990, receiving primary custody of the parties' two children. Nine years later, no support order having yet been entered, Juliann moved to establish Kenneth's child support obligation. She now appeals, contesting several aspects of the method used to calculate Kenneth's 1990 support obligation, as well as the superior court's refusal to increase Kenneth's support in later years to reflect his increased annual earnings. We hold that Juliann's failure to object to the trial court master's recommended support calculation for 1990 precludes review of support for that year except on one point reflecting plain error. We reverse the support determination for subsequent years, holding that, because no child support order had been entered when Juliann filed her 1999 motion, the rule against retroactively modifying support did not prevent the court from adjusting Kenneth's 1990 support obligation to reflect his increased earnings over the following years.

II. FACTS AND PROCEEDINGS

Juliann and Kenneth Duffus were married in 1978. Two children were born from their marriage-Elizabeth, born in January 1983, and Michelle, born in June 1987. In January 1989 the couple permanently separated.

Prior to their divoree trial, the parties reached an agreement regarding child custody, visitation, and division of the marital estate. Juliann received legal custody and primary physical custody of the children. With respect to child support, the agreement provided that "the child support obligation [should] be established pursuant to Civil Rule 90.8 and that a Civil Rule 90.8 affidavit [should] be completed and filed with the Court. The Court will then enter a separate order regarding the child support obligation." On August 7, 1990, the trial court granted the parents' request for divorce, incorporating their settlement agreement into its Findings of Fact and Conclusions of Law.

Over the following months, the parents exchanged correspondence concerning the Civil Rule 90.3 affidavit, but apparently never filed the affidavit. Consequently, the court never entered a child support order.

In May 1999, approximately nine years after the divorce, Juliann filed a motion to establish child support under the settlement agreement. The motion sought an award of back child support from the date of separation to the present. In February 2000 the superior court ordered that "[Juliann's] Motion to Establish Child Support shall be dealt with on a year-by-year basis in separate hearings for each year, or as the court otherwise directs."

In June 2000 Standing Master Andrew Brown heard evidence and argument concerning the calculation of child support for 1990, and in July issued a report calculating child support for that year. Based on his calculation of both parties' incomes for 1990 and the amount of time each party had physical custody of the children during that year, Master Brown "recommended that the court enter a child support order for 1990 as to [Kenneth] ... for $86.63 per month."

Master Brown further recommended that the court reconsider its decision to "hold[ ] subsequent hearings for each of the post-1990 years as to incomes and support obligations." Master Brown thought that it would be fair to leave his calculation of support for 1990 in effect until Juliann filed her motion to establish child support in 1999 because the parties were at fault for failing to secure a timely support order after their divorcee. Further, he maintained, allowing yearly modifications "would go against Civil Rule 90.3(h)(2)'s prohibition against retroactive modifications of child support."

Juliann objected to Master Brown's report. Her objection focused solely on the master's recommendation that the amount of support calculated for 1990 continue in effect until May 6, 1999-the date Juliann filed her motion to establish child support. Juliann did not object to Master Brown's calculation of support for 1990.

In October 2000 the superior court approved the master's calculation of child support for 1990. With respect to the master's recommendation to leave the 1990 calculation in effect until 1999, the court initially ordered the parties to "mediate their dispute regarding calculation of child support for periods after 1990." When the parties were unable to agree on the issue, the court ordered each party to "file a brief indicating their position on the issue of whether the 1990 child support calculations should apply through 1999 and, if not, at what intervals caleulations should be done." Both parties filed briefs addressing this issue.

On April 16, 2001, the superior court ruled that "for the reasons set forth in Master Brown's July 17, 2000 report ... modification of the now existing child support order, which establishes support as of 1990, will not be allowed for any period prior to the time [Juliann] filed her motion to [elstablish [eJhild support on May 6, 1999."

Juliann appeals.

III. DISCUSSION

Juliann challenges both the superi- or court's caleulation of child support for 1990 and its order providing that, to avoid violating the rule against retroactive modification, this amount could not be modified for the period before Juliann's 1999 motion to establish child support. We usually review awards of child support for abuse of discretion. But issues concerning the proper method of calculating child support present questions of law, which we review de novo. We similarly review de novo the superior court's interpretation of civil rules.

A. Juliann's Failure To Object to the Master's Recommended Calculation of Kenneth's 1990 Child Support Obligation Precludes All But Plain-Error Review of the Court's Order Adopting that Calculation.

Juliann first challenges the superior court's calculation of Kenneth's child support obligation for 1990. In particular, she contends that the superior court erred in caleu-lating both parents' adjusted incomes for child support purposes.

But as Kenneth points out, although Ju-liann objected to the master's recommendation that the child support obligation should remain unchanged from 1990 until Juliann filed her motion to establish child support in 1999, she "did not object to any part of the Master's factual findings or his calculation of child support based on 1990 income." Kenneth urges this court to follow the lead of a majority of other courts and "adopt a rule requiring a party to raise objections [to the master's report] to the superior court in order to preserve them, as this rule promotes efficient use of judicial resources and promotes the proper development of a record as to whether the findings are clearly erroneous." Juliann responds that if this court adopts such a rule, we should do so only prospectively because she had no "specific notice that the failure to file objections would constitute a waiver of the right to raise on appeal issues not presented in the form of objections to the superior court."

Alaska Civil Rule 53(d)(2) governs the superior court's adoption of a master's report:

In an action to be tried without a jury the court shall accept the master's findings unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for an action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 77. The court may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

The key language here is the rule's provision that "any party may serve written objections" within ten days after being notified of the master's findings.

Although this court has never considered whether this provision requires objections to be raised in superior court to preserve them for appeal, we have long adhered to the tenet " 'that matters not raised at trial will not be considered on appeal, " and have explained that this requirement "arises out of notions of judicial finality and efficiency, as well as fairness to the opposing party." Moreover, other state courts have required trial court objections as a prerequisite to appellate challenge of orders adopting masters' findings, uniformly holding that only those points specifically raised in a trial court objection can be raised on appeal.

Federal courts, too, support this requirement. They have interpreted the nearly identical Federal Rule of Civil Procedure 58(e)(2) to require an objection at the district court level to preserve a party's right to appeal a special master's factual findings. Similarly, almost all federal appellate courts addressing the analogous issue of appellate challenges to orders approving magistrates' reports " have ruled that a party's failure to file objections in the trial court limits the party's right to challenge the magistrate's report on appeal.

In Thomas v. Arn, the United States Supreme Court explained that this rule is supported by considerations of judicial economy:

The filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute. The Sixth Circuit's rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing. Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every
issue in every case, no matter how thorough the magistrate's analysis and even if both parties were satisfied with the magistrate's report. Either result would be an inefficient use of judicial resources. In short, the same rationale that prevents a party from raising an issue before a circuit court of appeals that was not raised before the district court applies here."[]

In light of these authorities, and in keeping with our own consistently expressed interest in judicial economy and fairness to opposing litigants, we hold that Alaska Civil Rule 58(d)(2) requires any party who disagrees with a master's finding to file a timely objection to the finding at the trial court level as a prerequisite to challenging the finding on appeal.

We further hold that this interpretation must apply in the present case. Juliann had ample notice of the need to object to the master's report at the trial court level. Although our own decisions had not squarely resolved the point, Rule 53(d)(2)'s language is fairly straightforward, and virtually every court that has addressed similar rules has held that a party's failure to object to a master's findings at the trial court level limits that party's ability to challenge those findings on appeal. Moreover, here, the master expressly informed both parties that "[alny objections to this Master's report must be filed under Civil Rule 53 within ten days after its mailing." And Juliann actually did object to some parts of the master's decision-his recommendation not to alter the 1990 support calculation in subsequent years-thereby expressing her opposition to those specific recommendations, while implie-itly acquiescing to the remaining recommendations.

Considering the totality of these cireum-stances, then, we hold that Juliann's failure to object to Master Brown's proposed caleu-lation of Kenneth's child support obligation for 1990 precludes appellate review of this point except for plain error.

"Plain error exists 'where an obvious mistake has been made which creates a high likelihood that injustice has resulted. Applying this rigorous standard, we reject Juliann's primary challenges to the order establishing Kenneth's 1990 child support obligation-her claims concerning the master's decision to disregard, for purposes of calculating Kenneth's 1990 adjusted gross income, all profits, losses, and related tax

consequences arising from his involvement in three side business ventures. Because our cases recognize that trial courts exercise " 'broad discretion' in deciding whether ... funds [of this kind] should be included in income for Civil Rule 90.3 purposes," the master's decision to disregard these items is not an "obvious mistake" giving rise to plain error.

We nevertheless do find plain error in one other respect. Juliann points out that the master's $480 deduction for child care expenses reflects only the amount of her child and dependent care tax eredit. Under Civil Rule 90.3, Juliann contends, the master should have deducted the actual amount of her child care expenses, $5,010. - Acknowledging this error, Kenneth argues only that his own 1990 adjusted gross income should similarly be adjusted to reflect his actual child care expenses, $1,537, rather than his child and dependent care tax credit, $461, the amount used by the master.

We agree with the parties. Civil Rule 90.3(a)(1)(D) provides that "work related child care expenses for the children who are the subject of the child support order" should be deducted when calculating a parent's income for child support purposes. The Commentary to Rule 90.38 clarifies this to mean that "reasonable child care expenses that are necessary to enable a parent to work, or to be enrolled in an educational program which will improve employment opportunities, are deductible. * We find plain error, then, in the 1990 caleulation's reliance on the child and dependent care tax credit. On remand the trial court will need to determine whether the amounts of actual child care expenses both parents claimed on their tax returns were in fact "reasonable" and "necessary" to enable them to work.

B. Requiring Kenneth's Support Obligation To Remain Unchanged from January 1, 1990 through May 6, 1999, Was Not Necessary To Avoid the Rule Barring Retroactive Modification.

Juliann objected to the master's recommendation that Kenneth's 1990 child support obligation should remain unchanged until May 6, 1999, the day Juliann filed her motion to establish Kenneth's child support. The superior court nevertheless approved Master Brown's recommendation, expressly adopting the reasons set forth in the master's report; the report, in turn, reasoned that Kenneth's 1990 support obligation should be left unmodified until 1999 because "any mistake ... by the court in not entering the support order in 1990, or soon thereafter, was the parties' fault," and because "[alllowing hearings as to a pre-1999 modification of support would go against Civil Rule 90.3(h)(2)'s prohibition against retroactive modifications of child support."

On appeal, Juliann renews her objection to the master's findings, arguing that Civil Rule 90.3(h)(2)'s bar on retroactive modifications is inapplicable here because there was no outstanding support order to modify before she filed her motion to establish support: "If a child support order has not been entered, ... retroactive modification of the child support order would be impossible [because] [there is no order to modify." We find this argument persuasive.

Alaska Civil Rule 90.3(h) governs the modification of a child support award. Rule 90.3(h)(1) provides that "[a] final child support award may be modified upon a showing of a material change of cireumstances as provided by state law." (Emphasis added.) Rule 90.3(h)(2) goes on to say that "[clhild support arrearage may not be modified retroactively" and that "[a] modification which is effective on or after the date that a motion for modification ... is served ... is not considered a retroactive modification." (Emphasis added.) The rule against retroactive modification thus only prohibits modifying "arrearage" already due under a "final child support award" in existence when a motion to modify is filed.

Here, no final support order was entered in the immediate aftermath of the parties' divorce, and no support order existed a decade later, when Juliann filed her motion to establish Kenneth's child support obligation on May 6, 1999. Juliann's motion thus requested entry of the "final child support award" that had never been entered in her case-an award that would initially establish Kenneth's child support obligation for the nine-year period that preceded her motion, not an award that would modify arrear-age that was already due. Of course, onee the court did establish Kenneth's support for 1990, any increase in the first-year amount would have modified that obligation. But this modification would not be retroactive under Rule 90.3(h)(@): Juliann's May 6, 1999, motion sought to establish support for the entire ten-year period since the divorce; because the court established Kenneth's 1990 obligation after Juliann filed this motion, any modification of that obligation to reflect his later increased earnings necessarily would take effect after the date of Juliann's motion and so "is not considered a retroactive modification" under Rule 90.3(bh)(2). In short, nothing in Civil Rule 90.3(h) either commanded or supported the master's recommendation, which in effect retroactively froze Kenneth's first-year support obligation immediately upon establishing it in response to Juliann's motion. We conclude, then, that it was error to fix Kenneth's support obligation at its 1990 level for the entire period preceding Juliann's motion.

This conclusion does not resolve the question of how Kenneth's child support should be calculated for the post-1990 years covered by Juliann's motion-1991 to 1999. In Spott v. Spott we observed that "in making retrospective rather than prospective child support awards actual income rather than earlier predictions as to income should be used." There, a divorced parent appealed a post-trial order requiring him to pay interim child support for a nineteen-month period when the divorcee had been pending. The trial court calculated the back support based on a master's earlier predictions of the father's income for that period. We held that, since the support obligation was established after it accrued, the court should have based the amount on the parent's actual income, rather than on the master's earlier predictions of likely income.

Spott points to actual income as an appropriate basis for establishing past support aceruing over a relatively short duration. But the present case requires the court to look back over a considerably longer period than the nineteen months at issue in Spott; here we deal with a span of approximately ten years. Considering the inherent difficulties of accurately reconstructing parental income over this lengthy period, we think it impractical and unnecessary to require automatic recalculation of support on a yearly basis, as the superior court initially contemplated doing here. Instead, we think that onee Kenneth's first-year support obligation has been accurately calculated based on his actual adjusted income, the superior court may maintain that amount of support unchanged for subsequent years in which no change in Kenneth's annual income is shown that would qualify as a substantial change of cireumstances under Civil Rule 90.3. On remand, then, after the court corrects its calculation of Kenneth's 1990 obligation in keeping with the directions in Part III.A of this opinion, Juliann should be given the opportunity to make a prima facie showing of changed cireumstances warranting modification of Kenneth's 1990 support obligation in subsequent years.

IV. CONCLUSION

For these reasons, we VACATE the superior court's order establishing Kenneth's child support obligation for 1990-1999 and REMAND for further proceedings.

      . See, eg., Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001); Bennett v. Bennett, 6 P.3d 724, 726 (Alaska 2000).

      . See Spott, 17 P.3d at 55.

      . See Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996).

      . Doyle v. Doyle, 815 P.2d 366, 372 (Alaska 1991) (quoting Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987)); see also Rowen v. Rowen, 963 P.2d 249, 255 (Alaska 1998) (quoting same).

      . Pieper v. Musarra, 956 P.2d 444, 446 (Alaska 1998).

      . - See In re Marriage of Doolittle, 265 Mont. 168, 875 P.2d 331, 334 (1994) ("'The intent-implicit but clear-of Rule 53 ... is that all objections to a master's report must be timely made in a party's written objections."); In re Marriage of Hayes, 259 Mont. 302, 856 P.2d 227, 229 (1993) ("We hold that the permissive word 'may' refers to the permission given to 'any party' to object. The objection must be made within the ten day limit.") (emphasis added); Mahoney v. Mahoney, 567 NW.2d 206, 210 (N.D.1997) ("Generally, the failure to file timely objections to the report and recommendations of a special master waives the right to appeal the recommended findings."); In re Miamisburg Train Derailment Litig., 132 Ohio App.3d 571, 725 N.E.2d 738, 744 (1999) ("Under Civ. R. 53(E)(2), appellants had fourteen days from the filing of the master's order to object to this or any other factual finding. Having failed to do so, the plaintiffs waived any objection to the factual finding that they might now wish to raise on appeal.").

      . - See Doolittle, 875 P.2d at 334 ("[AJll objections to a master's report must be timely made in a party's written objections.") (emphasis added); Mahoney, 567 N.W.2d at 211 ("[Bly not making his specific arguments about net income to the trial court, [the father] waived his right to argue on appeal that the court erred in adopting the special master's computation of his net income.") (emphasis added).

      . Federal Rule of Civil Procedure 53(e)(2) provides:
      In an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Rule 6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.
      (Emphasis added.)

      . See Stone v. City & County of San Francisco, 968 F.2d 850, 858 (9th Cir.1992) (holding that the city had waived its right to appeal several of the district court's factual findings that supported its contempt order by not contesting them when they were submitted by the Special Master as part of his progress reports); Provident Bank v. Manor Steel Corp., 882 F.2d 258, 261 (7th Cir.1989) ("[We hold that when a matter has been referred to a magistrate, acting as a special master pursuant to 28 U.S.C. § 636(b)(2) and Fed.R.Civ.P. 53, a party waives his right to appeal if he has not preserved the issues for appeal by first presenting them to the district court as objections to the magistrate's report.").

      . Under 28 U.S.C. § 636(b)(1) a United States district court judge may refer dispositive pretrial motions and petitions for writ of habeas corpus to a magistrate, who must conduct appropriate proceedings and recommend dispositions. Like Federal Rule of Civil Procedure 53, the statute also provides that any party that disagrees with the magistrate's recommendations "may serve and file written objections" to the magistrate's report within ten days after receiving it. See also Smith v. Frank, 923 F.2d 139, 141 n. 1 (9th Cir.1991) (Failure to object to special master's findings of fact and conclusions is treated identically to failure to object to magistrate's findings and conclusions.").

      . Courts in the First, Second, Fourth, Sixth, and Seventh Circuits have adopted a rule that a party's failure to file objections to a magistrate's report waives the right to consideration of all issues on appeal, both factual and legal. See, e.g., Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995) ("Failure to file objections with the district court to a magistrate's report and recommendation waives the right to appeal all issues addressed in the recommendation, both factual and legal."); Wimmer v. Cook, 774 F.2d 68, 74 n. 8 (4th Cir.1985) (recognizing that failure to file objections to a magistrate's report ordinarily precludes consideration on appeal of the substance of the report); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir.1983) ("When a party fails to object timely to a magistrate's recommended decision, it waives any right to further judicial review of that decision."); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981) (prospectively adopting rule that in order to appeal a district court's adoption of a magistrate's decision a party must first object to the magistrate's decision at the trial court level); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) (interpreting 28 U.S.C. § 636(b)(1)(C)'s language "may serve and file written objections" to mean that "a party 'may' file objections within ten days or he may not, as he chooses, but he 'shall' do so if he wishes further consideration").
      Courts in the Fifth, Ninth, and Eleventh Circuits have concluded that the failure to file objections waives factual, but not legal, issues on appeal. See, eg., Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.1998) (holding that "[flailure to object to a magistrate judge's recommendation waives all objections to the magistrate judge's findings of fact" and is "a factor to be weighed in considering" whether the party also waived the right to challenge the magistrate judge's purely legal conclusions); Deloney v. Estelle, 679 F.2d 372, 372-73 (5th Cir.1982) ("[Flailure to file written objections to the magistrate's report ... bar{[s] the party from attacking on appeal factual findings in the report accepted or adopted by the district court."); United States v. Warren, 687 F.2d 347, 348 (11th Cir.1982) (''The absence of objections to the magistrate's report and recommendations limits the scope of appellate review of factual findings to plain error or manifest injustice but does not limit review of legal conclusions.").
      The Eighth Circuit has not squarely addressed the issue but seems to lean toward the Fifth, Ninth, and Eleventh Circuits' view, declining to hold that failure to make timely objections to a magistrate's - recommendations - categorically waives a party's right to challenge the findings on appeal. See Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202, 1205-06 (8th Cir.1983) (holding that appeal should not be dismissed on a theory of waiver through failure to object to magistrate's report).

      . 474 U.S. 140, 106 S.Ct. 466, 88 LEd.2d 435 (1985).

      . Id. at 147-48, 106 S.Ct. 466 (quotations and citations omitted).

      . - See United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984) (holding that because the magistrate's report explicitly stated that "written objections to the proposed findings of fact and conclusions of law ... must be filed within ten (10) days after service," appellant's failure to object to the magistrate's report constituted a waiver of his right to appellate review) (emphasis added).

      . D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)).

      . Specifically, while not disputing the master's recommendation to disregard losses resulting from Kenneth's participation in these business ventures, Juliann contends that it was improper to exclude from Kenneth's gross income the $4,333 in profits he realized from one of the businesses, the D & G Enterprises partnership. Juliann further argues that, in calculating Kenneth's adjusted gross income, the master should have deducted from Kenneth's gross wages only the federal income tax that he actually paid, not the much higher amount that the master estimated Kenneth would have paid had he not reported his business losses on his tax return.

      . Coghill v. Coghill, 836 P.2d 921, 926 (Alaska 1992) (quoting Bergstrom v. Lindback, 779 P.2d 1235, 1237 (Alaska 1989)); see also Eagley v. Eagley, 849 P.2d 777, 779 (Alaska 1993).

      . DJ., 36 P.3d at 668.

      . Alaska R. Civ. P. 90.3 cmt. III(D).

      . See Bergstrom, 779 P.2d at 1237 n. 7 (holding that the trial court erred "to the extent it did not reduce (the father's] income by his actual work-related child care expenses as required by Civil Rule 90.3") (emphasis added).

      . Civil Rule 90.3(h) provides in full:
      (1) Material Change of Circumstances. A final child support award may be modified upon a showing of a material change of circumstances as provided by state law. A material change of circumstances will be presumed if support as calculated under this rule is more than 15 percent greater or less than the outstanding support order. For purposes of this paragraph, support includes health insurance payments made pursuant to (d)(1) of this rule. (2) No Retroactive Modification. Child support arrearage may not be modified retroactively, except as allowed by AS 25.27.166(d). A modification which is effective on or after the date that a motion for modification, or a notice of petition for modification by the Child Support Enforcement Division, is served on the opposing party is not considered a retroactive modification.
      (3) Preclusion. The court may find that a parent and a parent's assignee are precluded from collecting arrearages for support of children that accumulated during a time period exceeding nine months for which the parent agreed or acquiesced to the obligor exercising primary custody of the children. A finding that preclusion is a defense must be based on clear and convincing evidence.
      AS 25.27.166(d), referred to in 90.3(b)(2), allows for the retroactive extinguishment of child support arrearages where paternity is disestablished.

      . Our case law confirms this conclusion, establishing that Civil Rule 90.3(h) does not restrict awards of back child support based on fluctuating annual earnings when, as here, an initial support order has never been entered. See, eg., Spott v. Spott, 17 P.3d 52, 55 (Alaska 2001) (holding that the retroactive order of child support for a child for whom no support was ever ordered does not violate Rule 90.3(h)(2) because "'[als to that child there is no child support order and thus no order to retroactively modify"); Vachon v. Pugliese, 931 P.2d 371, 382 (Alaska 1996) (holding that reimbursement of child support for a period during which there was no existing child support order does not violate Rule 90.3(h)(2) because the reimbursement does not modify any existing arrears).

      . Indeed, were the bar against retroactive modification so easily triggered, it could presumably be as easily avoided by simply calculating the most recent year of Kenneth's obligation first, and working backward to 1990, the year of divorce.

      . Since the master's recommendation to freeze support at the 1990 level was based on the mistaken view that changing support would "go against Civil Rule 90.3(h)(2)'s prohibition against retroactive modification of child support," we need not address the issue whether the parties were to blame in failing to secure a timely child support order.

      . 17 P.3d at 56.

      . Id. at 53-54.

      . Id.

      . Id. at 56.

      . We note that this approach seems particularly sensible here because Juliann concedes in her opening brief no substantial change in Kenneth's circumstances occurred until she moved to Colorado in 1994.


author: STEWART, Judge. MANNHEIMER, Judge,

text:
    Joseph Jorge COLE, Appellant, v. STATE of Alaska, Appellee.
    No. A-8169.
    Court of Appeals of Alaska.
    June 20, 2003.
    Dan S. Bair, Anchorage, for Appellant.
    Michael Sean Mclaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Ap-pellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury found Joseph Jorge Cole guilty of first-degree murder. The superior court imposed a 65-year sentence with 20 years suspended. We upheld Cole's conviction on direct appeal. Cole pursued an application for post-conviction relief, claiming that his trial attorney was incompetent in two ways: first, because she did not retain a forensic pathologist to present evidence on the cause of the victim's death, and second, because she did not advise him concerning the potential difference in his parole eligibility if he was convicted of first-degree murder instead of accepting a charge bargain from the State for a guilty plea to second-degree murder with open sentencing.

The superior court dismissed Cole's application for failing to state a prima facie claim. We conclude that the superior court did not abuse its discretion and therefore affirm.

Facts and proceedings

On October 20, 1995, Cole and another man, Allen Cole (no relation), walked up, handguns drawn, to a car that was stopped at a red light in Anchorage. Both men mistakenly believed the car contained their intended victim. They opened fire as they came alongside, firing more than a dozen shots into the vehicle. Two of the shots hit Thomas Kusmider, a person unknown to the men. A bullet from Cole's gun struck Kusmider in the shoulder and a bullet from Allen Cole's gun struck Kusmider in the chest. The driver of the car fled from the seene and rushed Kusmider to the hospital. In spite of emer-geney treatment, Kusmider bled to death.

The grand jury indicted the Coles for first-degree murder. Allen Cole accepted the State's charge bargain and pleaded no contest to second-degree murder. Although Cole's attorney advised him to accept the same offer, Cole persisted in his not guilty plea and the jury convicted him as charged.

Cole's claim that his attorney was ineffective because she did not present expert testimony on the cause of death

Cole's application alleges that his trial attorney provided ineffective assistance of counsel because she did not call a forensic pathologist to testify on the ecause of Kusmi-der's death. Cole supported his application with an affidavit from Dr. Donald R. Rogers, a forensic pathologist. Cole contends that Dr. Rogers' opinion, as set out in his affidavit, supports his claim that his attorney could have presented testimony that would show that Kusmider would not have died had he only been wounded in the shoulder-that is, had he been struck by Cole's bullet alone. From this, Cole argues that he would have been able to show at least a reasonable doubt whether he was guilty of first-degree murder as a principal.

The State moved to dismiss this claim and argued that Cole's factual averments for this claim were deficient because Dr. Rogers' opinion was no more favorable than the evidence Cole's trial attorney brought out during cross-examination of the forensic pathologist called by the State, Dr. Norman Thompson.

Superior Court Judge Elaine M. Andrews, who presided over Cole's jury trial, compared the assertions in Dr. Rogers' affidavit with Dr. Thompson's trial testimony concerning Kusmider's cause of death. Judge Andrews found "essentially no difference" between Dr. Rogers' affidavit and Dr. Thompson's testimony. She also found that Dr. Thompson's testimony appeared to be "much more persuasive" on the theory Cole advanced than Dr. Rogers' affidavit. Judge Andrews noted that Cole's trial attorney interviewed Dr. Thompson before trial and elected not to call an expert. The trial attorney reasoned that a pathologist would be unlikely to opine that a significant gunshot wound did not legally contribute to death by exsanguination. Because the facts in the application showed that Cole's trial attorney made a tactical choice about calling a forensic pathologist and because Cole had not alleged facts that established any prejudice, Judge Andrews dismissed this claim.

A prima facie claim of ineffective assistance of counsel must allege facts to show that the trial attorney's conduct fell outside the range of reasonable actions that might have been taken by an attorney skilled in the criminal law, and that there is a reasonable doubt whether the incompetence contributed to the conviction. Both Dr. Rogers and Dr. Thompson agreed that Kusmider's shoulder wound would not have been life-threatening on its own, assuming timely medical care, and both agreed that his chest injury was a lethal wound. And, because Kusmider bled to death, Dr. Rogers agreed with Dr. Thompson that the shoulder injury that was directly caused by Cole's gunshot "would have contributed to Mr. Kusmider's death." Therefore, Judge Andrews' ruling that Cole's application did not allege a prima facie case of prejudice was not an abuse of discretion.

Cole's claim that his attorney was ineffective because she did not advise him of potential parole considerations

Next, Cole argues that he established a prima facie claim when he alleged that his attorney was incompetent because, although she advised him to accept the offered charge bargain, she did not advise him that he might be eligible for parole sooner if he accepted. Judge Andrews granted the State's motion to dismiss this claim, reasoning that Cole's counsel was not required to advise Cole of his potential for parole when advising him on the advantages and disadvantages of the State's charge bargain.

In Hampel v. State, the defendant accepted a plea bargain in which he would plead guilty to first-degree murder in return for a guarantee of no more than a 60-year sentence. The trial court sentenced Hampel to serve 60 years with 20 years suspended. Hampel pursued post-conviction relief claiming, in part, that he was unaware that he would not receive "good time credit" against the 20-year mandatory minimum sentence for first-degree murder. Hampel claimed that this lack of awareness rendered his plea involuntary. We rejected Hampel's claim because it was based on his unilateral subjective belief about parole eligibility (ie., his belief was not influenced by advice or promises from his attorney or a promise from the court).

A court is not required to advise defendants on the potential for parole release, even when the court is asking defendants whether they understand their rights during a change of plea hearing. Here, Cole argues that his attorney was incompetent because she did not advise him about parole eligibility. But Cole has not cited any persuasive authority in support of this assertion. Cole concedes he was informed of the minimum and maximum penalties that applied in his case. And Cole does not aver that his attorney provided him with any misleading advice about the offered charge bargain or the consequences of his desire to reject the charge bargain and go to trial on first-degree murder.

We conclude that an attorney is not required to advise a defendant about parole eligibility when the defendant is offered a charge bargain with open sentencing. We agree with Judge Andrews' conclusion that Cole's attorney was not required to provide Cole with an analysis of his potential for parole release when she recommended that he accept the charge bargain.

Conclusion

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, concurring.

MANNHEIMER, Judge,

concurring.

I agree with my colleagues that Cole failed to show that he was prejudiced by his trial attorney's failure to call Dr. Rogers to testify about the cause of death. However, I reach this result for a different reason.

Cole and his accomplice, both armed with firearms, stood outside their victim's car and fired over a dozen bullets into it. Ballistics analysis revealed that a bullet from Cole's gun wounded the victim in the shoulder, while a bullet from his accomplice's gun wounded the victim in the chest. The victim later died from the loss of blood caused by these wounds.

At trial, Cole tried to convince the jury that he should not be convicted of first-degree murder as a principal by arguing that the bleeding caused by the shoulder wound had not contributed in a significant way to the victim's death. To this purpose, Cole's attorney cross-examined the State's pathologist, Dr. Thompson, to suggest that the shoulder wound was largely insignificant. Now, Cole asserts that his attorney should also have introduced the testimony of Dr. Rogers to bolster this point.

But even if the jury believed that the shoulder wound did not contribute in any significant way to the victim's death, Cole would still be guilty of first-degree murder. The crime of first-degree murder requires proof of the defendant's intent to kill. Thus, when the jury found Cole guilty of first-degree murder, they necessarily found that when Cole participated in the armed assault on the occupants of the car, he acted with the intent to kill. And, because Cole participated equally in this assault (working together with his accomplice to fire more than a dozen bullets into the vehicle), Cole was accountable under AS 11.16.1102) for the conduct of his accomplice-that is, for the gunshots fired by his accomplice. Thus, even if none of Cole's bullets had struck the victim, Cole would still be properly convicted of first-degree murder. See Riley v. State, 60 P.3d 204 (Alaska App.2002); Knutson v. State, 736 P.2d 775, 780 (Alaska App.1987).

For this reason, 1 conclude that Cole's trial attorney's decision to refrain from calling Dr. Rogers could not have affected the outcome of the trial.

      . AS 11.41.100(a).

      . Cole v. State, Alaska App. Memorandum Opinion and Judgment No. 3845, 1998 WL 395224 (July 15, 1998).

      . AS 11.41.110(@).

      . Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).

      . 911 P.2d 517 (Alaska App.1996).

      . Id. at 519.

      . Id.

      . Id. at 524.

      . Id. at 525.

      . See Morgan v. State, 582 P.2d 1017, 1027 (Alaska 1978).