Opinion
Court of Appeals No. A-9880.
July 16, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-02-6363 CR.
Doug Miller, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Superior Court Judge Philip R. Volland found that Jackson Calhoun violated a condition of his probation by failing to actively participate in and complete a sex offender treatment program. Judge Volland found that Jackson was terminated from the program when, after admitting his offense and participating in treatment for approximately four months, he began to deny his underlying sexual offense, knowing it would result in his termination from treatment. Jackson appeals, arguing that he did not have sufficient notice that denial of his offense could result in his termination from the program and constitute a violation of his probation. We affirm Judge Volland's decision.
Why we uphold Judge Volland's decision
In 2004, Calhoun entered a no contest plea to sexual abuse of a minor in the second degree. Calhoun was sentenced to 5 years of imprisonment with all but the time that he had already served suspended. The court placed him on probation for 3 years. The court did not require Calhoun to undergo sex offender treatment.
AS 11.41.436(a)(2).
In 2006, the State charged Calhoun with violating his conditions of probation. Calhoun entered into an agreement with the State in which he admitted the probation violations. As part of the agreed-upon disposition, Calhoun's probation was extended for 2 years, he was required to submit to polygraph testing at the direction of his probation officer, and he was directed to actively participate in and complete sex offender treatment.
Calhoun was admitted to a sex offender treatment program that was supervised by Dr. Roger B. Graves. Dr. Graves is a licensed psychologist and directs an approved Department of Corrections sex offender treatment program. After participating in the program for several months, Calhoun denied his underlying offense. As a result, Dr. Graves concluded that Calhoun was not amenable to treatment, and he discharged Calhoun from the program.
The State filed a petition to revoke Calhoun's probation, alleging that Calhoun violated his probation conditions by failing to complete sex offender treatment. Judge Volland conducted an evidentiary hearing at which Dr. Graves and Calhoun testified. Calhoun testified that he did not know when he agreed to the condition of probation requiring him to undergo sex offender treatment that he had to admit his offense to stay in the program and comply with his condition of probation.
Based on the testimony at the hearing, Judge Volland found that approximately one month before the adjudication hearing at which Calhoun entered into the agreement with the State to actively participate in and complete sex offender treatment, Dr. Graves informed Calhoun that the sex offender treatment program required all participants to admit committing a sexual offense. Judge Volland also found that, one day after Calhoun was ordered to participate in and complete a sex offender treatment program, Calhoun called Dr. Graves, admitted his offense, and requested treatment. Judge Volland concluded as follows:
In this case, the testimony of Dr. G raves establishes that before his probation condition requiring sex offender treatment was added, Calhoun knew that Dr. Graves'[s] program required some degree of admission of sexual misconduct. Calhoun then voluntarily agreed to a probation condition that he "actively participate in and complete sex offender treatment." Calhoun admitted to his offense and participated in treatment for approximately four months. He then became hesitant with treatment, and began to deny his underlying sexual offense knowing it would result in termination from treatment.
Judge Volland concluded that "the State has established by a preponderance of the evidence that Calhoun . . . knowingly violated [his] condition of probation by refusing to comply with the conditions for treatment in Dr. Graves'[s] program and by being discharged from the program."
The record supports Judge Volland's finding that Calhoun was fully aware that he would be required to acknowledge a sexual offense to participate in Dr. Graves's sex offender treatment program. The record also supports his finding that Calhoun knew that continuing to deny his prior offense would result in his termination from the program and would violate his condition of probation.
The judgment of the superior court is AFFIRMED.