Opinion
Court of Appeals No. A-12348 No. 6703
09-19-2018
PARRIS DUANE WILSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 3AN-14-6353 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Parris Duane Wilson was convicted, following a jury trial, of third-degree assault (under the recidivist assault statute) based on evidence that he assaulted his girlfriend in a vacant Anchorage lot and that he had previously been convicted of two or more assaults during the preceding ten years. Wilson challenges his conviction on appeal, arguing that the trial court committed plain error when it failed to instruct the jury on factual unanimity. Wilson also challenges a probation condition that was imposed at the request of his defense attorney. For the reasons explained here, we affirm the judgment of the superior court.
AS 11.41.220(a)(5).
Wilson's factual unanimity claim
At trial, the State presented an eyewitness to Wilson's attack on his girlfriend. This witness testified that she saw a man (later identified as Wilson) repeatedly strike a woman (later identified as Wilson's girlfriend) in the vacant lot next to the witness's building. The witness then saw the woman leave and sit on the steps of a building "for a few minutes, maybe 10" and then saw the woman walk back to the man, who struck her several more times. The woman then lay down on the ground without moving, seemingly unconscious.
On appeal, Wilson argues that the witness's testimony showed that there were two separate assaults, interrupted by the victim sitting on the steps of the building. Wilson therefore argues that the trial court committed plain error when it failed to instruct the jury on the need for factual unanimity.
We find no merit to this claim. As a general matter, "multiple blows struck in the course of a single, continuous criminal episode" are considered a single assault unless the "blows are struck at clearly separate times and in clearly separate incidents, [as] when one blow is separated from another by a change in purpose, a 'fresh impulse,' or a different provocation." Here, the State prosecuted this case as one continuous assaultive episode, and that is how the case was argued and presented to the jury by the prosecutor. Moreover, Wilson never argued to the jury that there were two separate assaults. To the contrary, his defense was that there was no assault at all, and Wilson's defense attorney argued that the eyewitness was simply mistaken about what she thought she observed. (Wilson's girlfriend testified in support of this defense.)
S.R.D. v. State, 820 P.2d 1088, 1092-93 (Alaska App. 1991).
Because there was no obvious need for a factual unanimity instruction in this case, the trial court did not commit plain error in failing to provide one.
The challenged probation condition
As a third felony offender, Wilson faced a presumptive range of 3 to 5 years for this felony assault conviction. Based on Wilson's extensive criminal history and his past failures on probation and parole, the prosecutor argued for a sentence of 5 years to serve, with no suspended time. The trial court indicated during the sentencing hearing that it believed such a sentence would be appropriate.
Former AS 12.55.125(e)(3) (pre-2016 version).
However, the defense attorney argued for a lower sentence, requesting that the court impose 5 years with 2 years suspended (3 years to serve). In support of this more lenient sentence, the defense attorney asserted that Wilson had untreated mental health issues, and the defense attorney argued that proper mental health treatment could improve Wilson's chances for rehabilitation and his success on probation. As part of this argument, the defense attorney told the court that Wilson was willing to have the court impose a probation condition that required Wilson to "obtain a mental health assessment and follow any treatment recommendations." The superior court interpreted "follow any treatment recommendations" as including "take any prescribed medication," and the court modified the defense attorney's proposal to include this requirement. The defense attorney did not object to this modification.
With this new probation condition in place, the superior court sentenced Wilson to 5 years with 1 year suspended (4 years to serve) rather than the 5 years to serve requested by the prosecutor.
Now on appeal, Wilson argues that the trial court committed plain error when it required Wilson to take "any prescribed medication" as a condition of probation. We agree with Wilson that this probation condition infringes on important constitutional rights and requires strict scrutiny. We also agree with Wilson that the current record does not reflect the kind of medically informed findings that would normally be required before such a condition could be imposed.
Kozevnikoff v. State, ___ P.3d ___, Op. No. 2611, 2018 WL 3679314, at *1-2 (Alaska App. Aug. 3, 2018); Kobuk v. State, 1987 WL 1357149, at *2 (Alaska App. June 3, 1987) (unpublished); see also United States v. Williams, 356 F.3d 1045, 1055-56 (9th Cir. 2004).
Kozevnikoff, 2018 WL 3679314, at *2; Williams, 356 F.3d at 1056 (reasoning that probation conditions requiring ingestion of medication must be based upon a medically informed record — a record containing an "independent and timely evaluation ... by a medical professional, including attention to the type of drugs proposed, their dosage, and the expected duration of a person's exposure, as well as an opportunity [for the defendant] to challenge the evaluation and offer his or her own medical evidence in response").
However, we disagree with Wilson that we should vacate his condition based on the deficiency of the evidentiary record before us. In his briefing on appeal, Wilson largely ignores the fact that it was his own attorney who injected the issue of Wilson's mental health problems into the sentencing. More importantly, Wilson's attorney urged the sentencing court to accept his representations regarding Wilson's mental health issues, even though there was no evidence introduced to support those representations, and the defense attorney expressly argued for the challenged probation condition as part of a larger argument for leniency in sentencing that was at least partially successful.
Given these circumstances, we agree with the State that the doctrine of invited error applies to this probation condition. The doctrine of invited error applies when a trial court takes improper action at the express request of a party, and then, on appeal, the party seeks reversal of the court's judgment on the basis of that action. When an error is invited, an appellate court will still review the claim of error, but the claim of error is evaluated under a stricter standard than the "plain error" test that applies to claims of unpreserved error. In cases of invited error, an appellate court will not reverse the judgment unless, because of exceptional circumstances, reversal "is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice."
Anderson v. State, 289 P.3d 1, 3 (Alaska App. 2012), on reconsideration, 337 P.3d 534 (Alaska App. 2014).
Id.
Id.
Having examined the record in this case, we conclude that reversal is not required. Given the context in which this probation condition was proposed by the defense attorney and accepted by the superior court, we interpret "any prescribed medication" to apply only to mental health medication that Wilson's medical providers view as necessary for his rehabilitation and/or the safety of the public. Second, given the serious side effects that some mental health medications can cause, we interpret the probation condition as providing for some form of judicial review if Wilson objects to taking the prescribed mental health medication — review that will take place prior to Wilson being required to take that medication and prior to Wilson facing any legal consequences for refusing to take the medication. With these procedural safeguards in place, we uphold the challenged probation condition.
Cf. Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
Kozevnikoff, 2018 WL 3679314, at *2; Williams, 356 F.3d at 1056. Cf. Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 246, 248 (Alaska 2006); Washington v. Harper, 494 U.S. 210, 221 (1990). --------
Conclusion
The judgment of the superior court is AFFIRMED.