Opinion
Court of Appeals No. A-12362 No. 6695
08-29-2018
JOSEPH MICHAEL DALEY IV, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. June Stein, 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-12-2457 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Jane B. Martinez, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Joseph Michael Daley IV appeals his convictions on two counts of possessing child pornography, arguing that the evidence presented at his trial was legally insufficient to support his convictions. Daley also challenges three of the probation conditions that were imposed by the superior court at his sentencing.
Daley's argument that the evidence was legally insufficient to support his convictions hinges on viewing the evidence in the light most favorable to himself. But when an appellate court evaluates the sufficiency of the evidence to support a guilty verdict in a criminal trial, we must view the evidence (and the inferences that could reasonably be drawn from that evidence) in the light most favorable to upholding the jury's verdict.
See, e.g., Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007).
Viewing the evidence at Daley's trial in that light, we conclude that the evidence was sufficient to convince a reasonable fact-finder that the State had proved its case beyond a reasonable doubt. The evidence was therefore legally sufficient.
Dorman, 622 P.2d at 453; Spencer, 164 P.3d at 653.
We now turn to Daley's challenges to three of his conditions of probation. (Daley challenged these conditions of his probation in the trial court. Thus, his claims are preserved for appeal.)
Special Condition No. 4: This condition of probation requires Daley to actively participate in non-specified treatment programs as directed by his probation officer. According to the wording of Special Condition No. 4, these treatment programs "will include regular periodic polygraph examinations and may include plethysmograph assessment, and [any other] physiological and/or psychological testing".
As Daley points out, and as the State concedes, plethysmographic assessment is so intrusive and demeaning that a sentencing court must apply strict scrutiny before imposing this condition. In Daley's case, the State concedes that the sentencing court committed error by failing to engage in a strict scrutiny analysis before it imposed this condition — and the State does not seek a remand to allow the superior court to reconsider its decision using the correct legal test. We therefore vacate the plethysmograph clause of Special Condition No. 4.
See United States v. Weber, 451 F.3d 552, 568-69 (9th Cir. 2006). --------
Special Condition No. 6: This condition of probation requires Daley to actively participate in any treatment program as directed by his probation officer, and to "comply with [the] use of [any] medications prescribed as part of the treatment program".
Daley points out that this condition apparently requires him to take any type of medication prescribed by a treatment program, regardless of whether that medication will contribute to his rehabilitation, and regardless of its potential side-effects — including psychotropic medications with extreme or irreversible side effects.
See Kiva O. v. Department of Health & Social Services, 408 P.3d 1181, 1187 (Alaska 2018), where the Alaska Supreme Court held that people have a fundamental right to refuse to take psychotropic drugs because of "the nature and potentially devastating impact" of these drugs — and that the State can force a person to take psychotropic medications only "when necessary to advance a compelling state interest[,] and only if no less intrusive alternative exists."
The State concedes that Special Condition No. 6 "raises several issues". We note, in particular, that the superior court made no finding that there was a compelling state interest in forcing Daley to take psychotropic medications (and that there were no less intrusive means to accomplish this government interest).
We therefore adopt the State's suggestion that the superior court should reconsider the necessity for, and the scope of, this probation condition. In its reconsideration of this probation condition, the superior court should be guided by our recent discussion of this issue in Kozevnikoff v. State, ___ P.3d ___, 2018 WL 3679314 (Alaska App., August 3, 2018).
In addition, there is one other aspect in which Special Condition No. 6 is illegal on its face. Special Condition No. 6 requires Daley to enroll in residential mental health and/or substance abuse programs if these programs are "determined [to be] necessary by an appropriate mental health or substance abuse professional", and Daley is required to stay in these residential treatment programs "for [the] length of time determined necessary by the appropriate professionals."
This requirement of residential treatment at the discretion of "appropriate [treatment] professionals" constitutes an illegal increase in Daley's sentence. See Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App. 1994), and the cases cited there. We therefore strike the residential treatment provisions of Special Condition No. 6.
Special Condition No. 8: This condition of probation prohibits Daley from having contact with any person under the age of sixteen unless Daley "[is] in the immediate presence of [an] adult who knows the circumstances of [Daley's] crime [and who has been] approved by a probation officer [in writing]."
Daley notes that this condition of probation limits his contact with his own daughter, and he argues that the superior court did not engage in the strict scrutiny analysis that is required before a sentencing court interferes with a defendant's right of association with their own family. See Johnson v. State, 421 P.3d 134, 138-140 (Alaska App. 2018).
The State notes that, at the time the sentencingcourt imposed this condition of probation, Daley and his wife were engaged in a divorce proceeding that would decide such matters as custody and the terms of visitation. The State concedes that, to the extent this condition of probation restricts Daley's contact with his daughter, this matter was more appropriately handled in the divorce proceeding, and the probation condition should be explicitly limited so that it does not apply to Daley's daughter. We accordingly direct the superior court to expressly limit Special Condition No. 8 in this manner.
Daley raises one final argument: he contends that his remaining probation conditions, taken as a whole, are "unduly restrictive", and that the aims of probation could be adequately accomplished with significantly lesser restrictions.
This argument was not presented to the superior court. It is therefore not preserved for appeal. See State v. Ranstead, 421 P.3d 15, 21-22 (Alaska 2018).
In conclusion, Daley's convictions are AFFIRMED, but the three challenged conditions of probation — Special Conditions Nos. 4, 6, and 8 — must be struck or modified as we have directed in this opinion.