Opinion
A-13386
05-11-2022
JOSEPH A. SUN, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ryan T. Bravo, Assistant District Attorney, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Trial Court No. 2KB-07-00360 CR Michael P. McConahy, Judge.
Appearances:
Michael L. Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ryan T. Bravo, Assistant District Attorney, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
In 2008, Joseph A. Sun was convicted of first-degree assault for attacking and strangling a young girl, and he received a sentence of 20 years with 10 years suspended. When he was placed on felony probation, he was required - as a condition of his probation - to refrain from possessing or using any illegal drugs and to actively participate in and complete any recommended sex offender treatment.
AS 11.41.200(a).
Sun had been previously convicted of attempted second-degree sexual assault and fourth-degree assault after he pushed a woman down on a couch and tried to remove her pants, and then - after the woman was able to escape - chased after her, pushed her to the ground, and strangled her.
In 2014, Sun violated his probation by consuming alcohol and committing new criminal offenses. He was ultimately convicted of attempted first-degree vehicle theft, driving under the influence, and driving without a valid operator's license. The superior court revoked Sun's probation and imposed 12 months of his suspended time.
In 2018, the State filed a subsequent petition to revoke probation. The State alleged three violations: (1) that Sun had used methamphetamine, (2) that Sun had used marijuana, and (3) that Sun had been discharged from sex offender treatment. Following a contested adjudication, the superior court found that the State had proved all three allegations by a preponderance of the evidence. At a subsequent disposition hearing, the court found that there was good cause to revoke Sun's probation and imposed 6 years of Sun's suspended time.
The record indicates that in 2015, a second petition to revoke probation alleged an "[a]nticipatory failure to complete treatment." But it does not appear that this petition was ever filed in court or adjudicated.
Sun now appeals the disposition of the 2018 petition to revoke his probation. On appeal, Sun does not dispute that he violated his probation as alleged, nor does he challenge the court's findings as to these violations. Rather, Sun raises two claims related to his disposition.
Probation revocation proceedings involve a two-step process. The first question is whether the probationer violated a condition of probation. If the trial court finds a violation, the court then proceeds to the second stage of the proceedings and determines the proper disposition. The trial court's determination of whether there is "good cause" to revoke probation and impose a term of incarceration is part of this second stage. State v. Pulusila, 467 P.3d 211, 218 (Alaska 2020) (citing Trumbly v. State, 515 P.2d 707, 709-10 (Alaska 1973)).
First, Sun argues that the court erred when it found good cause to revoke his probation. In order to establish "good cause" for revocation, a court must find that "continuation of [the defendant's] probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation."
Trumbly, 515 P.2d at 709.
In particular, Sun contends that the superior court lacked sufficient cause for revoking his probation because the court did not have more information about the reasons for his discharge from sex offender treatment and his substance abuse treatment needs - namely, the court lacked direct testimony from the sex offender treatment provider and an updated substance abuse assessment. But the treatment provider's full discharge summary was available to the court, and Sun does not contest the grounds for discharge contained in the report. The court also had a substance abuse assessment that Sun completed eight months prior to the disposition hearing, as well as an updated presentence report.
Cf. Silas v. State, 425 P.3d 197, 201-02 (Alaska App. 2018) (holding that, where a probationer challenges the grounds for termination from treatment, the trial court is obliged to resolve any factual disputes regarding the bases for discharge and determine whether the reasons for discharge constitute good cause for revoking probation).
The information before the court in this case amply supported its decision to revoke Sun's probation. The court reviewed Sun's criminal history and the record of his previous cases and determined that it was "very difficult to conclude that anything ha[d] really changed" since Sun's prior convictions for attempted second-degree sexual assault and fourth-degree assault in 2004. The court found that Sun was not amenable to continued probation based on the nature of his underlying offense, his prior criminal history, his criminal behavior while on probation, his continuing drug use, and his prompt discharge from sex offender treatment based on his unwillingness to commit to treatment. The court expressed particular concern with Sun's repeated failures to comply with the rehabilitation components of his sentence. Given the information before it, the court could reasonably conclude that there was good cause to revoke Sun's probation.
Second, Sun argues that the court's imposition of 6 years of his suspended time was excessive. In imposing this time, the superior court evaluated all of the circumstances of Sun's case in light of the Chaney criteria. The court emphasized Sun's extensive criminal history, which included prior assaultive behavior, his poor historical performance on probation, his continuing drug use and criminal conduct, and his failures to engage with treatment both while incarcerated and on release. We have reviewed the record, and we conclude that the sentence imposed is not clearly mistaken.
See Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988) (recognizing that a court has the duty to justify any imposition of suspended time in light of the Chaney criteria); see also State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970) (codified in AS 12.55.005).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974); Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
We therefore AFFIRM the judgment of the superior court.