Opinion
Court of Appeals No. A-11990 No. 6706
09-19-2018
OSCAR CHRISTIANSEN JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. DeLucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3KO-00-596 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve W. Cole, Judge. Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. DeLucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Oscar Christiansen Jr. was convicted of first-degree assault in 2001. One of his conditions of probation forbade him from engaging in "threatening behavior."
Shortly after his release on probation, Christiansen was arrested for a new offense. As he was being transported to jail, he told the police officer that he might "come looking" for her when he got out of jail — in seven years.
Based on this and other conduct, the superior court revoked Christiansen's probation. Christiansen now appeals, arguing that the "threatening behavior" probation condition is unconstitutionally vague.
The State concedes that the condition is vague, but argues that, since Christiansen did not challenge the condition in his direct appeal from his conviction, he waived his right to challenge it at a later probation revocation hearing. Alternatively, the State argues that Christiansen's behavior fell within the sort of "core conduct" prohibited under the Alaska criminal statutes, and therefore that any vagueness about the broader reach of the condition did not prejudice Christiansen.
For reasons that we explain here, we conclude that Christiansen did not waive his present challenge to the probation condition, and that the condition's vagueness requires reversal of the probation revocation based on a violation of that condition.
Facts and proceedings
In 2001, Christiansen was convicted of first-degree assault. He received a sentence of 20 years' imprisonment with 3 years suspended (17 years to serve) and 10 years' probation. One of Christiansen's conditions of probation prohibited him from engaging in "any assaultive or threatening behavior." Christiansen appealed his conviction, but not this condition of probation. This Court affirmed Christiansen's conviction.
Christiansen v. State, 2004 WL 178941, at *5 (Alaska App. Jan. 28, 2004) (unpublished).
Christiansen was released on probation in October of 2013. Less than two months later, he was arrested for a new offense. As he was being transported to jail, he threatened the police officer by saying that "he would be getting out of prison in seven years, maybe [the officer] would be ... retired by then, and ... he might come looking for [the officer]." The State filed a petition to revoke Christiansen's probation based on this and other conduct.
At the adjudication hearing on the petition to revoke his probation, Christiansen denied saying that he might come looking for the officer in the future. But he also pointed out that, even if he had said this, his words did not amount to a unconditional threat of imminent harm. Thus, he argued that he had not uttered the sort of threat that can be criminally prosecuted.
The superior court found that Christiansen's probation condition was broad enough to reach statements that were conditional and did not threaten imminent harm — and that Christiansen therefore violated his probation when he made this statement to the officer. The judge also found that Christiansen had violated his probation conditions in other ways not relevant here. The judge revoked Christiansen's probation, but then returned him to probation without the imposition of additional time to serve.
The State's argument that Christiansen waived any challenge to the probation condition
The State argues that since Christiansen did not challenge this condition of probation in his direct appeal of his conviction for first-degree assault, he waived his right to now appeal the legality of the condition. Christiansen in turn argues that the probation condition did not afford him notice that it might apply to a contingent threat of harm in the distant future — and that because he could not reasonably have foreseen this eventuality, no waiver occurred.
The prohibition against "any assaultive or threatening behavior" was a non-standard probation condition imposed without discussion by the sentencing judge. It appeared on its face to apply to express or implied threats to inflict imminent physical harm. Christiansen (or his defense attorney) had no particular reason to anticipate that the superior court might later interpret it to apply to a conditional threat of harm many years in the future.
Accordingly, we conclude that Christiansen has not waived his right to appeal his probation revocation on vagueness grounds.
Why we reverse the revocation of Christiansen's probation based on his statement to the officer
We agree with the State's concession that the phrase "threatening behavior" as used in Christiansen's probation condition is vague if it signifies something other than words or conduct that might support a criminal conviction. But we disagree with the State's contention that the condition's vague nature is unimportant here because Christiansen's statement to the officer falls within the "core conduct" of Alaska's criminal statutes covering threats of violence.
In Powell v. State, we held that letters drafted by a probationer did not justify revocation of his probation, because the threatening language in the letters did not amount to an assault under Alaska's third-degree assault statute. This was because the letters were not so "unequivocal, unconditional, immediate and specific ... as to convey a gravity of purpose and imminent prospect of execution" of the threats.
Powell v. State, 12 P.3d 1187, 1191 (Alaska App. 2000).
Id. (quoting United States v. Kelner, 534 F.2d 1020, 1027 (2nd Cir. 1976)). --------
Christiansen's threat was neither unconditional nor immediate, and so did not amount to the crime of assault. We therefore reject the State's argument that Christiansen's statement to the officer fell within the "core" of verbal conduct that constitutes a crime under Alaska law.
We conclude that Christiansen's probation condition failed to give him fair notice that he was forbidden from engaging in this kind of speech, and to remedy this, we give the condition a narrowing construction — that it prohibits him from engaging in threatening behavior amounting to a violation of the criminal law. Since Christiansen's conduct was not criminal, we reverse his probation revocation to the extent that the superior court relied on the State's allegation of "threatening behavior."
Conclusion
We REVERSE the superior court's judgment finding Christiansen in violation of the probation condition that prohibits "assaultive or threatening behavior." We leave standing his probation revocation based on other, unrelated conduct.