Opinion
A-13959 7085
01-03-2024
STEPHEN W. ALVARADO, Appellant, v. STATE OF ALASKA, Appellee.
Nate Crowley, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3DI-11-00334 CR Dillingham, Christina L. Reigh, Judge.
Nate Crowley, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Bolger, Senior Supreme Court Justice. [*]
MEMORANDUM OPINION
ALLARD, JUDGE
Stephen W. Alvarado was convicted, following a jury trial, of two counts of first-degree sexual abuse of a minor based on evidence that he sexually abused his daughter on two separate occasions. We previously affirmed Alvarado's convictions in a published opinion, but we remanded his case for resentencing. On remand, following a sentencing hearing, the superior court imposed 35 years with 5 years suspended on each of the two counts with 15 years consecutive, for a composite sentence of 45 years to serve.
AS 11.41.434(a)(2).
See Alvarado v. State, 440 P.3d 329, 335 (Alaska App. 2019).
Alvarado now appeals that sentence as excessive. Alvarado also appeals various probation conditions. The State concedes error on the majority of the probation conditions. Because the State's concessions are well-founded, we remand this case to the superior court to strike and/or modify most of the challenged probation conditions.However, we affirm imposition of the probation condition for which the State did not concede error, and we affirm Alvarado's sentence as not clearly mistaken.
The State does not argue that Alvarado's failure to object to these conditions in his previous appeal prevents him from now raising these claims. See, e.g., Beal v. Beal, 209 P.3d 1012, 1017 (Alaska 2009); Downs v. State, 349 P.3d 189, 190 (Alaska App. 2015); Hurd v. State, 107 P.3d 314, 329 (Alaska App. 2005). We therefore do not address whether the "law of the case" doctrine would apply to these circumstances.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
The challenged probation conditions
1. The special probation condition requiring residential mental health treatment
Alvarado challenges the special probation condition that requires him to complete residential mental health treatment (if recommended) because the condition does not specify a maximum term for treatment. The State concedes that the failure to set a maximum term is plain error. This concession is well-founded. This Court, in Galindo v. State, made clear that "failure to set an upper limit for the residential treatment provision is contrary to both statute and case law, and thus plainly erroneous[.]" Moreover, because there is no suggestion that the residential treatment condition was "integral" to Alvarado's sentence, and because imposing a maximum term on remand would violate double jeopardy, the superior court shall, on remand, strike the portion of the probation condition requiring residential treatment.
This condition states: "Defendant shall actively participate in and successfully complete all mental health programs, counseling and treatment recommended by the evaluator, including residential placement. Defendant shall sign a release of information allowing DOC to monitor attendance, participation, progress in treatment, and receive evaluations and discharge summaries."
Marks, 496 P.2d at 67-68.
Galindo v. State, 481 P.3d 686, 690 (Alaska App. 2021) (citation omitted); see also AS 12.55.100(c).
Christensen v. State, 844 P.2d 557, 559 (Alaska App. 1993).
2. The special probation condition authorizing warrantless searches for controlled substances, drug paraphernalia, and weapons
Alvarado challenges the special probation condition that authorizes warrantless searches for controlled substances, drug paraphernalia, and weapons, arguing that the condition lacks a nexus to his crimes. (The special probation condition also authorizes warrantless searches for alcohol, which Alvarado does not challenge.) The State concedes error, and this concession is well-founded. A probation condition authorizing warrantless searches must have a "direct relationship . . . to the nature of the crime for which the [defendant] was convicted." The record reveals no relationship between Alvarado's convictions and controlled substance or weapons use. On remand, the superior court shall strike the portion of the provision authorizing warrantless searches for controlled substances, drug paraphernalia, and weapons.
This condition states: "Defendant shall submit to a search directed by a Probation Officer, with or without probable cause, of their person, personal property, residence and any vehicle he/she is in for the presence of alcohol, controlled substances, drug paraphernalia, weapons, pornography."
Marks, 496 P.2d at 67-68.
Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977); see also Dayton v. State, 120 P.3d 1073, 1084-85 (Alaska App. 2005); Sprague v. State, 590 P.2d 410, 418 (Alaska 1979).
3. The special probation conditions authorizing warrantless searches for pornography and prohibiting possession of pornography and sexually stimulating material
Alvarado challenges the special probation condition that authorizes warrantless searches for "pornography," and the special conditions that prohibit possession of "pornography" and "sexually stimulating material," arguing that these terms are unconstitutionally vague and that the conditions lack a nexus to his crimes.The State concedes that these terms are unconstitutionally vague and that a remand is required so that these terms can be modified. This concession is well-founded. This Court has previously found that the terms "pornography" and "sexually stimulating material," absent further clarification, "provided constitutionally inadequate notice of what conduct was prohibited." On remand, the superior court shall either strike these conditions (including the portion of the warrantless search condition) or, if the court finds that a nexus to impose the conditions exists, modify their terms to provide constitutionally adequate notice of the conduct that is prohibited.
These conditions state: "Defendant shall submit to a search directed by a Probation Officer, with or without probable cause, of their person, personal property, residence and any vehicle he/she is in for the presence of alcohol, controlled substances, drug paraphernalia, weapons, pornography"; "Defendant [s]hall not possess pornography"; and "Defendant shall not possess any sexually stimulating material, shall not own or use a computer that has access to the internet, and shall not participate in chat rooms."
Marks, 496 P.2d at 67-68.
Smith v. State, 349 P.3d 1087, 1094 (Alaska App. 2015); Diorec v. State, 295 P.3d 409, 417 (Alaska App. 2013); see also Galindo v. State, 481 P.3d 686, 693 (Alaska App. 2021).
4. The special probation conditions prohibiting possession, ownership, and use of any computer that has internet access and prohibiting participation in chat rooms
Alvarado challenges the special probation conditions prohibiting possession, ownership, and use of any computer that has internet access. He argues that the conditions are overly broad and violative of his First Amendment rights, and that the terms "computer" and "chat rooms" are unconstitutionally vague. The State concedes that the blanket prohibition imposed here was plainly erroneous; this concession is well-founded. Probation conditions that impose a complete, or even only partial ban, on computer and internet use implicate First Amendment rights, require special scrutiny, and are disfavored. In Dalton v. State, this Court surveyed the current state of the law in other jurisdictions regarding internet bans while on probation, and we noted that a significant number of courts have held that requiring probation officer permission to access the internet is overly restrictive, even in cases where there is a clear nexus between the crime and internet use.
These conditions state: "Defendant shall not possess any sexually stimulating material, shall not own or use a computer that has access to the internet, and shall not participate in chat rooms"; and "Defendant shall not possess a computer that has internet access."
Marks, 496 P.2d at 67-68; see also Dalton v. State, 477 P.3d 650, 654 (Alaska App. 2020).
Dalton, 477 P.3d at 653-55 (noting that while restrictions on internet use that "may have been an inconvenience a decade ago - though admittedly a substantial one - may now be an almost total hindrance to reentry into modern society and meaningful participation in public discourse").
Id.
Here, there is seemingly no nexus between Alvarado's crimes and any computer or internet use, and we would be inclined to strike these conditions completely. However, the State has not had an opportunity to argue for a modified version of the conditions because Alvarado never objected to the conditions in the proceedings below. Accordingly, on remand, the State should be given an opportunity to argue for a condition that will withstand special scrutiny under the facts of this case.
See Alvarado v. State, 440 P.3d 329, 335 (Alaska App. 2019).
5. The special probation conditions requiring Alvarado to notify members of his household of his criminal history and to notify employers of his conviction and probation status prior to beginning employment
Alvarado challenges the special probation conditions that require him to notify members of his household and future employers of his crimes. He argues that these conditions are unnecessary because other conditions already prohibit him from having any contact with minors. He also argues that the conditions have no connection to his offense and that they will make securing a residence and finding employment more difficult.
These conditions state: "Defendant shall advise all members of the household in which they are residing of their criminal history, even when their residence is temporary"; and "Defendant shall inform any employer of this conviction and probation status immediately following sentencing if currently employed at the time of sentencing; otherwise prior to beginning any employment."
The State argues that the conditions are justified on public safety grounds, asserting that the superior court judge could reasonably conclude that such precautions are necessary to safeguard other children. Alvarado did not object to these conditions in the proceedings below and therefore must show plain error on appeal. We agree with the State that the conditions in this case serve a public safety purpose and are not plainly erroneous.
State v. Ranstead, 421 P.3d 15, 20 (Alaska 2018).
Diorec, 295 P.3d at 415 (concluding that a similar requirement to notify household members of prior criminal history involving exploitation of a minor was "directly related to the protection of the public").
6. The general probation condition requiring Alvarado to report all motor vehicle information to his probation officer
Alvarado challenges the general probation condition requiring him to report all motor vehicle information to his probation officer, arguing that there is no nexus with his crimes. The State concedes that this probation condition should not have been imposed and makes no argument to justify the condition or explain what purpose it serves. We therefore agree that the concession is well-founded, as there is no evident relation between the condition and his crime. On remand, the superior court shall strike this condition.
This condition states: "Defendant shall report all current motor vehicles belonging to them, together with motor vehicle license numbers for those vehicles as well as all purchases, sales, and trades of motor vehicles within 48 hours of the transaction to their probation officer."
Marks, 496 P.2d at 67-68; Roman v. State, 570 P.2d 1235, 1242-43 (Alaska 1977).
Alvarado's argument that his sentence is excessive
As a second felony offender, Alvarado faced a presumptive range of 30 to 40 years for each count of first-degree sexual abuse of a minor for which he was convicted. Because the superior court found two aggravating factors based on Alvarado's criminal history, the superior court was authorized to impose up to 99 years on each count. In addition, under AS 12.55.127, the court was required to run at least 8 years and 9 months of the second count consecutive to the first.
AS 12.55.125(i)(1)(C).
AS 12.55.125(i)(1).
See AS 12.55.127(c)(2)(E).
On remand, the superior court imposed 35 years with 5 years suspended on each count, and ran 15 years consecutively for a composite sentence of 45 years to serve. As an initial matter, Alvarado asserts that this sentence represents an impermissible increase from the original sentence imposed at his first sentencing. This is incorrect. At his original sentencing, Alvarado received a composite sentence of 57 years and 6 months to serve - a sentence that was higher than the sentence he received on remand.
See Shagloak v. State, 597 P.2d 142, 145 (Alaska 1979) (holding that an increase in sentence on remand violates the due process clause of the Alaska Constitution).
Alvarado also argues that the superior court failed to adequately justify the sentence under the Chaney criteria. We disagree. On remand, the superior court made clear that it had reviewed the prior sentencing proceedings and was familiar with the sentencing findings of the prior judge. The court then went on to independently evaluate the Chaney criteria, emphasizing the need for isolation, community condemnation, and deterrence given the facts of the case and Alvarado's criminal history. The court discussed Alvarado's criminal history, which included assaults against his father and various former girlfriends. And the court noted the lifelong impact that Alvarado's actions would have on his victim. The court also discussed Alvarado's rehabilitation potential, but concluded that this Chaney factor was entitled to less weight than the need for isolation, community condemnation, and deterrence.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970); AS 12.55.005.
When this Court reviews an excessive sentence claim on appeal, we independently examine the sentencing record to determine whether the sentence is clearly mistaken. The "clearly mistaken" standard contemplates that "reasonable judges, confronted with identical facts, can and will differ on what constitutes an appropriate sentence," and that a reviewing court will not modify a sentence that falls within a "permissible range of reasonable sentences." Having independently reviewed the sentencing record in this case, we conclude that the composite sentence imposed here is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
Conclusion
We AFFIRM Alvarado's sentence but REMAND certain probation conditions for further proceedings in accordance with the guidance provided here.
[*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).