Opinion
Court of Appeals No. A-9713.
November 21, 2007.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-05-1041 Cr.
S. Joe Montague, Assistant Public Defender, Kenai, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Aaron J. Bullard pleaded no contest to one count of attempted fourth-degree misconduct involving controlled substances and one count of felony failure to appear.
AS 11.71.040(a)(3)(A), AS 11.31.100(a); and AS 12.30.060, respectively.
The single issue Bullard appeals is the legality of a probation condition imposed by the superior court requiring Bullard to undergo a mental health evaluation and submit to residential treatment if warranted. We conclude that the superior court's findings do not justify the probation condition.
Background facts and proceeding
Kenai Police Officer Michael Louthan was on patrol on July 6, 2005, when he saw a vehicle speeding in the other direction. Officer Louthan turned around, caught up with the vehicle, and stopped it. Bullard was the driver.
Bullard was driving on a suspended license and had no liability insurance. He also had an outstanding warrant for his arrest. The police found a small bag of cocaine near Bullard's vehicle, and Bullard admitted that the bag was his. Officer Louthan arrested Bullard.
The State charged Bullard with fourth-degree misconduct involving controlled substances, driving without liability insurance, and driving on a suspended license. When Bullard failed to appear for a scheduled court appearance on November 10th, the State charged Bullard with felony failure to appear.
Ultimately, the parties reached a plea agreement. The State agreed that in exchange for Bullard's no contest plea to attempted fourth-degree misconduct involving controlled substances and to felony failure to appear, the State would dismiss the other charges. The parties agreed that Bullard would receive a 6-month term with 5 months suspended for attempted misconduct involving controlled substances and a 12-month term with 8 months suspended for failure to appear. The parties had no agreement as to the probation conditions for the felony charge, but agreed that Bullard would be referred to the Alcohol Safety Action Program for an evaluation. The plea agreement provided an additional condition that Bullard would have to attend inpatient treatment for a period of time set by the court and that: "The State will argue for treatment [as] a condition for both felony and misdemeanor charges and the defendant will oppose."
The presentence report prepared by a probation officer recommended that Bullard submit to a mental health evaluation because of his history (Bullard's criminal record began in his teenage years and he was forty-two years old when sentenced) and what the probation officer described as "extreme lapses in his judgment and criminal thinking errors." The probation officer recommended that Bullard be required to submit to residential treatment should the mental health evaluation reveal a need for it.
Superior Court Judge Charles T. Huguelet accepted the plea agreement and imposed the agreed term on each count. As a condition of probation for the attempted controlled substance misconduct charge, Judge Huguelet ordered Bullard to attend up to thirty days of inpatient substance abuse treatment. He also concluded that Bullard's criminal history warranted a mental health evaluation because Bullard's history showed the "possibility of a mental health pathology." Judge Huguelet ordered Bullard to attend a residential program if the evaluation recommended that treatment. The judge did not specify how long Bullard would be required to submit to residential treatment should it be recommended.
Discussion
Bullard argues that ordering a mental health evaluation and potential residential treatment for his mental health was not warranted. Bullard contends that there was no indication in the record that a mental health problem contributed to his failure to appear, and he argues that his personal history does not show a need for mental health counseling or treatment.
A condition of probation "must be reasonably related to the rehabilitation of the offender and the protection of the public[,] and must not be unduly restrictive of [the offender's] liberty." Even so, a probation condition does not have to directly relate to the defendant's specific crime. For example, in Allain v. State, this court upheld a probation condition that barred Allain from drinking alcoholic beverages, even though Allain's offense was not alcohol-related. The court imposed the probation condition because Allain had a history of drinking. And the court reasoned that the probation condition increased Allain's prospects for rehabilitation. The record in Allain showed that the defendant was mildly retarded and had difficulty controlling his anger. It was also fair for the court to infer from the record that Allain had problems controlling impulsive behavior. And in Miyasato v. State, this court upheld a probation condition that directed Miyasato to obtain sex offender treatment even though Miyasato's crime was theft-related and not a sex crime. Miyatso had a history of sex crimes. We concluded that the record in Miyasato's case provided ample support for the sentencing judge's conclusion that concerns for Miyasato's rehabilitation and the protection of the public justified the treatment.
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
810 P.2d 1019 (Alaska App. 1991).
Id. at 1022-23.
Id. at 1022.
892 P.2d 200 (Alaska App. 1995).
Id.
Id. at 202.
An examination of the limited record in this case does not yield the types of inferences that were evident in Allain and Miyatso. The only finding the superior court entered before imposing the condition that Bullard obtain a mental health evaluation and submit to custodial treatment was that Bullard's criminal history showed a pattern of substance abuse and driving offenses indicating the "possibility of a mental health pathology." Although Bullard's criminal history extended back more than two decades, the substantial majority of the cases in the presentence report were driving offenses and suspended license charges. Standing alone, this does not support an inference that mental health evaluation and custodial treatment would advance rehabilitation or protect the public. Accordingly, we vacate the challenged probation condition.
Bullard also argued that the superior court erred by not specifying the maximum time period that Bullard would have to participate in residential mental health treatment. Because we are vacating the probation condition, we need not address the fact that the court did not specify a period of inpatient treatment. We note that when a probation condition requires a defendant to attend treatment that so restricts a defendant's freedom of movement that it is the functional equivalent of imprisonment, the court must specify the period of custodial treatment. Conclusion
See Lock v. State, 609 P.2d 539, 546 (Alaska 1980).
See Williams v. State, 924 P.2d 104, 107-08 (Alaska App. 1996).
We VACATE the challenged probation condition and remand the case to the superior court to amend the judgment.