Opinion
Court of Appeals No. A-12066 No. 6604
03-14-2018
ADOLPH RIVERS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4BE-13-821 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Adolph Rivers pleaded guilty to third-degree sexual assault. At sentencing, the judge imposed a condition of probation requiring him to reside in a community with an adult probation office. Rivers now appeals this condition, arguing that it unnecessarily infringes several of his constitutional rights.
AS 11.41.425(a)(1)(B), (C).
We conclude that the superior court applied the correct level of scrutiny to this probation condition and that the record supports imposition of the condition.
Background facts and proceedings
In July of 2012, Rivers snuck into a home in the community of Quinhagak. He slipped into bed with a sleeping woman and touched her genitals. The woman awoke and chased Rivers from her home. Based on this incident, the State indicted Rivers for second-degree sexual assault, third-degree sexual assault, and first-degree burglary.
AS 11.41.420(a)(1), AS 11.41.425(a)(1)(B), (C), and AS 11.46.300(a)(1), respectively.
The State submitted a notice of its intent to offer evidence at trial of prior bad acts by Rivers. The State alleged that in July 2003, Rivers entered the home of a different woman in Quinhagak and also touched her sexually before she awoke and he fled. The State further alleged that Rivers behaved similarly in 2004 toward another woman in Quinhagak.
Pursuant to a plea agreement, Rivers pleaded guilty to third-degree sexual assault, and the State dismissed the other charges. As part of the plea agreement, Rivers conceded aggravator AS 12.55.155(c)(18)(B) for having previously engaged in similar conduct.
The presentence report contended that Rivers required close supervision due to "his history of threatening and evading officers" and his criminal record. Rivers had sixteen prior criminal convictions, all misdemeanors. These included multiple assault and harassment convictions. His misdemeanor probation had been revoked on four occasions. The Alaska Public Safety Information Network identified Rivers as an officer safety risk, due to threatening comments and behaviors toward troopers. In a presentence worksheet, Rivers blamed his criminal conduct on alcohol abuse.
The presentence report recommended that the court impose a special condition of probation that restricted Rivers's choice of community in which to reside: "The defendant's residence shall be subject to the approval of his probation officer, and if deemed appropriate, shall be limited to communities with an adult probation office."
Rivers opposed this condition of probation. He argued that the condition violated his constitutional rights to travel and to live in his home community of Quinhagak. He also contended that the condition amounted to an unlawful delegation of authority to the probation officer. Rivers predicted that he would likely be ordered to complete an eighteen-month sex offender treatment program in Bethel upon his release from custody. He proposed that when he finished this program, his probation officer could evaluate his status at that point, and determine whether to ask the court to limit his residential options.
Superior Court Judge Charles W. Ray Jr. imposed the condition, slightly modifying it: "The defendant shall reside in a community with an adult probation office, unless the probation officer deems it appropriate and useful to the defendant's rehabilitation to reside in a community without an adult probation office." The judge reasoned that Rivers required extensive supervision, due to his alcohol and personal behavioral issues. The court also concluded that Rivers had "emotional and psychological issues" that could only be addressed with close supervision.
Rivers now appeals the special condition of probation.
Did the trial court err in imposing the special condition of probation?
Probation conditions that limit where a probationer can live are subject to special scrutiny, and trial courts must affirmatively consider and have good reason for rejecting less restrictive alternatives. This Court has vacated similar conditions where the trial court failed to apply the proper level of scrutiny to these conditions and the record did not appear to otherwise support such residential restrictions. But we have affirmed similar restrictions in cases where the record demonstrated that the court applied the proper level of scrutiny and where imposition of the conditions was justified by the circumstances of the defendant.
Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).
See Peratrovich, 903 P.2d at 1079 (vacating a prohibition on the defendant returning to Prince of Wales Island because the judge failed to affirmatively consider and have good reason for rejecting lesser restrictions); Edison v. State, 709 P.2d 510, 511-12 (Alaska App. 1985) (vacating a condition that prohibited the defendant from returning to the community where he was arrested for driving under the influence); Booth v. State, 2002 WL 31307875, at *2-3 (Alaska App. Oct. 16, 2002) (unpublished) (vacating a geographically restrictive probation condition because it bore no reasonable relationship to the defendant's rehabilitation or his offense); Graf v. State, 1986 WL 1165527, at *2 (Alaska App. Feb. 5, 1986) (unpublished) (remanding the case with directions to strike a residency restriction probation condition).
See Williams v. State, 2016 WL 756970, at *8-9 (Alaska App. Feb. 24, 2016) (unpublished) (upholding the condition because of the defendant's history of mental illness, substance abuse, assaultive behavior, and probation violations); Nicoli v. State, 2003 WL 1732007, at *6-7 (Alaska App. Apr. 2, 2003) (unpublished) (upholding the condition because of its pertinence to the defendant's rehabilitation); Nelson v. State, 2001 WL 694047, at *4-5 (Alaska App. June 20, 2001) (unpublished) (upholding the condition because of its relationship to the offense and the defendant's rehabilitation); Madros v. State, 1998 WL 351236, at *3-4 (Alaska App. July 2, 1998) (unpublished) (upholding the condition because of its relationship to the offense); Burke v. State, 1995 WL 17221370, at *3 ( Alaska App. Dec. 27, 1995) (unpublished) (upholding the condition by requiring the probation officer to act reasonably in restricting the defendant's residence and allowing the defendant to seek judicial review of the restriction); Bryan v. State, 1993 WL 13156671, at *2-4 (Alaska App. May 12, 1993) (unpublished) (upholding a condition prohibiting the defendant from returning to his home community because of the close connection between that community and the defendant's crime).
Here, the record demonstrates that the trial court applied the proper legal standard and engaged in the fact-finding required to support imposition of this type of residential restriction. Specifically, the court found that Rivers would likely require extensive supervision based on his history of probation violations, his lengthy criminal history, his "emotional and psychological issues," and his substance abuse treatment needs. The court also modified the residential restriction to clarify that the probation officer's decision regarding any restriction on Rivers's community of residence must be based on Rivers's rehabilitation needs.
See Burke v. State, 1995 WL 17221370, at *3 (Alaska App. Dec. 27, 1995) (unpublished) (noting that a probationer may seek review in the superior court if their probation officer acts unreasonably with regard to a residential restriction that requires the probation officer's approval).
We note that, at sentencing, the parties agreed that Rivers would be required to reside in Bethel until he finishes his sex offender treatment. After completing this treatment, Rivers will still remain subject to the condition requiring him to live in a community with an adult probation office. But the condition as modified makes clear that Rivers may seek permission to return to Quinhagak or to live in another community without an adult probation office, based on his circumstances and rehabilitation needs at the time. Rivers may also seek judicial review of the probation officer's decision not to allow him to live in a community without a probation officer, should the probation officer act unreasonably in withholding that permission.
Id. --------
Thus, given the record in this case, we find no merit to Rivers's challenge to the special probation condition.
Conclusion
We AFFIRM the superior court's judgment.