Opinion
Court of Appeals No. A-13208 No. 6943
05-19-2021
BRIAN WASSILLIE FANCYBOY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4SM-17-00031 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge. Appearances: Renee McFarland, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Brian Wassillie Fancyboy pleaded guilty to manslaughter for shooting and killing Dennis Alick. At sentencing, Fancyboy objected to two general conditions of probation and two special conditions of probation that were recommended in the presentence report. The trial court seemingly agreed with parts of Fancyboy's challenges, but the court nevertheless rejected most of the requested modifications. Because we have questions about the trial court's reasoning, we remand this case for clarification of the superior court's findings and reconsideration of the challenged probation conditions, as appropriate.
AS 11.41.120(a)(1).
Fancyboy also asserts — and the State concedes — that the court erred by failing to fully black out or otherwise remove assertions that were stricken from the presentence report. The State's concession is well-founded, and we therefore direct the trial court to fully redact the presentence report on remand.
Fancyboy's challenges to the probation conditions requiring full-time employment
In the trial court proceedings, Fancyboy challenged two proposed probation conditions that required him to obtain and maintain full-time employment.
General Condition No. 5, as proposed, required the following:
You shall obtain and maintain verifiable full-time employment unless engaged full-time in an educational or treatment program approved by the Probation Officer. Should you become unemployed, notify your Probation Officer by the next business day. If you are disabled and unable to work, proof of disability shall be provided to your Probation Officer.Similarly, Special Condition No. 10, as proposed, required Fancyboy to "obtain and maintain verifiable full-time employment unless engaged full-time in an educational or treatment program approved by the Probation Officer."
Fancyboy raised two objections to these conditions. First, he asserted that, given the high unemployment rate in the Yukon Kuskokwim Delta, it was "overly burdensome" to require Fancyboy to obtain full-time employment. Second, Fancyboy asserted that the conditions should acknowledge and accept the value of the subsistence lifestyle that Fancyboy intended to engage in when released.
During the sentencing hearing, the judge found that "the Yukon Kuskokwim Delta has a high unemployment rate, and many people do live subsistence lifestyles." The judge also noted that, in his experience, this was taken into account by probation officers in the Yukon Kuskokwim Delta, and he asserted that he had "yet to see anybody in the Delta revoked because they don't have a job."
The judge nevertheless imposed General Probation Condition No. 5 without any modifications, stating only that it was a "standard" condition. The judge agreed, however, to add "attempt" to Special Probation Condition No. 10, so that it only required Fancyboy to "attempt to obtain and maintain verifiable full-time employment . . . ." The judge did not add any language recognizing a subsistence lifestyle as a form of employment.
Emphasis added.
On appeal, Fancyboy renews his objections to the probation conditions, and he argues that the judge's addition of the word "attempt" to Special Probation Condition No. 10 is rendered meaningless by the absence of any such modification to General Probation Condition No. 5. We agree that a remand is required so that the same modification can be made to General Probation Condition No. 5. It is clear from the record that the sentencing judge did not intend Fancyboy's probation to be revoked if he was unable to secure full-time employment despite good-faith efforts, and this intent should be reflected in the actual probation conditions imposed.
It also appears from the record that the sentencing court agreed with Fancyboy regarding the economic, cultural, and rehabilitative value of subsistence activities. And it appears that the court believed that subsistence activities should be included as a form of employment, and that probation officers in the Yukon Kuskokwim Delta generally recognized that fact. Given these beliefs, it is not clear why the court failed to amend the probation conditions to account for a subsistence lifestyle. We therefore direct the court on remand to more clearly explain its reasoning and to consider amending the probation conditions, as appropriate.
See Rich v. State, 640 P.2d 159, 162 (Alaska App. 1982) (noting that conditions of probation must be "sufficiently precise and unambiguous" to inform the probationer of the conduct that the probationer must engage in or refrain from).
Fancyboy's challenges to probation conditions that restrict his association with persons with a felony conviction
At sentencing, Fancyboy also challenged General Probation Condition No. 7 and Special Probation Condition No. 16. General Probation Condition No. 7, as proposed, stated:
Do not knowingly associate with a person who is on felony probation or parole, or a person who has a record of a felony conviction unless prior written permission to do so has been granted by a Probation Officer of the Department of Corrections.Similarly, Special Probation Condition No. 16, as proposed, stated:
The defendant shall not knowingly associate with other felons unless they are in a treatment program together and have a specific assignment from the approved treatment provider that requires collaborative work.
Fancyboy objected to the portion of General Condition No. 7 that prohibited him from knowingly associating with a person "who has a record of a felony conviction," arguing only that the prohibition was "overly burdensome." (Fancyboy told the trial court that he had no objection to the other parts of that probation condition — i.e., the provisions that prohibited him from associating with a person who is currently on felony probation or parole supervision, absent prior permission to do so from a probation officer.) Fancyboy also objected to Special Probation Condition No. 16, arguing that it is "duplicative" of General Probation Condition No. 7.
The court rejected Fancyboy's challenges, emphasizing that only a "knowing" association would be a violation of these probation conditions and finding that petitions to revoke probation based on this type of condition are rarely filed.
On appeal, Fancyboy reframes his legal argument, claiming for the first time that prohibiting him from having contact with such a large number of people — i.e., those with a record of a felony conviction — infringes on his constitutional right to free association. In support of this argument, Fancyboy makes a number of new factual assertions — that there is a high rate of felony convictions in the United States, that the rate of felony convictions is particularly high among Alaska Natives, that he resides in Pilot Station, and that the community of Pilot Station is predominantly Alaska Native. In response, the State notes that Fancyboy did not make this constitutional argument to the trial court, and the State accordingly argues that Fancyboy must show plain error.
U.S. Const. amends. I, XIV; Alaska Const. art. I, § 5; see also Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984) (recognizing the right to associate for the purpose of engaging in activities protected under the First Amendment).
When a probation condition implicates a defendant's constitutional rights, a court must apply special scrutiny to ensure that the condition is "narrowly tailored to avoid unnecessary interference with the constitutional right at issue." A court must therefore "affirmatively consider and have good reason for rejecting lesser restrictions." Because Fancyboy did not frame his objection in constitutional terms in the trial court, we review the trial court's order for plain error.
Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015).
Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).
State v. Ranstead, 421 P.3d 15, 23 (Alaska 2018).
Here, we cannot find plain error. As a general matter, courts have the authority to restrict a probationer's association with those who would encourage the probationer to engage in criminal conduct. Such conditions are reasonably related to the goals of promoting rehabilitation and protecting public safety. While the fact that a person has a prior felony conviction is not a perfect proxy for determining whether that person is likely to be engaged in criminal activity, we cannot say, on the record before us, that the trial court's reliance on this proxy was obvious error.
Conditions restricting the freedom of parolees and probationers to associate with persons who have been convicted of crimes have been upheld against First Amendment challenges. See, e.g., United States v. Albanese, 554 F.2d 543, 545-47 (2d Cir. 1977) (probation condition restricting association to "law-abiding persons"); Birzon v. King, 469 F.2d 1241, 1242-43 (2d Cir. 1972) (parole condition restricting association with persons having criminal records). But cf. Johnson v. State, 421 P.3d 134, 140 (Alaska App. 2018) (vacating a probation condition that restricted contact between parent and child co-defendants because "their status as . . . felons[] alone did not override the importance of their familial relationship").
See Albanese, 554 F.2d at 546 ("A person disobeying the law today and hence not being law-abiding may as yet have no criminal record, and a person with a past record may be entirely law-abiding today."); cf. Fla. Admin. Code r. 23-23.010(5)(a)(5) (providing, as a condition of conditional release supervision, that a person refrain from "knowingly associat[ing] with any person(s) who is engaging in any criminal activity, a criminal gang member, or person(s) associated with criminal gang members").
We nonetheless stress that our conclusion depends on the fact that General Probation Condition No. 7 allows Fancyboy's probation officer to permit him to associate with a person who has been convicted of a felony. Our expectation is that such permission will be liberally granted, particularly if the probation officer does not have a reason to suspect the convicted felon of current criminality.
We must address one additional point. In order to comport with the requirements of due process, a condition of probation must be sufficiently precise and unambiguous to inform the probationer of the conduct that is required to retain his liberty. We note that, unlike General Probation Condition No. 7, which gives Fancyboy's probation officer the discretion to allow Fancyboy to associate with someone with a felony conviction, Special Probation Condition No. 16 does not contain a similar provision. Instead, Special Probation Condition No. 16 seems to be absolute, apparently prohibiting Fancyboy from knowingly associating with anyone who has been convicted of a felony, except in a treatment setting, without any exceptions. Because this provision is inconsistent with the language of General Probation Condition No. 7, we remand these conditions to the trial court to harmonize them and to clearly explain what conduct is prohibited.
Rich v. State, 640 P.2d 159, 162 (Alaska App. 1982).
Insufficient redaction of assertion stricken from the presentence report
At sentencing, Fancyboy successfully challenged certain information in the presentence report. But rather than completely redacting this information, the sentencing judge only drew a line through the challenged information. As a result, the information is still legible. Fancyboy claims this was error, and the State agrees.
The State's concession is well-founded. Under Alaska Criminal Rule 32.1(f)(5), the sentencing judge should have completely blacked out or otherwise removed the contested information so that it was no longer legible. On remand, the trial court shall fully redact the contested information from the presentence report and distribute the corrected presentence report as required by Criminal Rule 32.1(f)(5).
See Akelkok v. State, 475 P.3d 1136, 1142-43 (Alaska App. 2020).
The parties also agree that the first page of the presentence report mislabels Fancyboy's first-degree weapons misconduct charge as first-degree murder. We accordingly direct the trial court to correct this clerical error before distributing the corrected presentence report.
Conclusion
We REMAND this case to the trial court for reconsideration of General Probation Conditions Nos. 5 and 7, as well as Special Probation Conditions Nos. 10 and 16. We also direct the trial court to correct the incomplete redactions in the presentence report and to prepare and distribute a corrected presentence report in compliance with its prior ruling and with Alaska Criminal Rule 32.1(f)(5).
These probation conditions were renumbered on the final judgment as Special Probation Condition Nos. 9 and 14.