Opinion
A-13351
08-11-2021
MICHAEL J. COOKSEY, Appellant, v. STATE OF ALASKA, Appellee.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Attorney General Designate, Juneau, for the Appellee.
Memorandum decision s 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). ~
Appeal from the Superior Court Trial Court No. 3PA-16-01874 CR, Third Judicial District, Palmer, Kari Kristiansen, Judge.
Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Attorney General Designate, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE
In 2016, Michael J.Cookseypleaded guilty to a single countofthird-degree assault after he repeatedly struck his girlfriend with a rake. Cooksey received an agreed upon sentence of 18 months with 18 months suspended. One of Cooksey's conditions of probation, General Condition No. 15, required him to "enroll in and complete" a twelve-week Domestic Violence Intervention Program (DVIP).
Cooksey's probation was revoked twice before the revocation at issue in this case: the first time for failing to report to his probation officer and for associating with a felon; and the second time for failing to report to his probation officer, failing to complete a DVIP, and possessing a rifle. At the hearing to resolve the second petition to revoke probation, the court imposed 30 days of Cooksey's remaining suspended time and added 1 year to the length of Cooksey's probation to ensure that he had sufficient time within which to complete a DVIP.
The State moved to revoke Cooksey's probation a third time, alleging that Cooksey failed to report to his probation officer, failed to enroll and engage in a DVIP, and committed the crime of providing false information to a police officer. With respect to Cooksey's failure to engage in a DVIP, the State alleged that Cooksey had promised the court, at his previous probation revocation proceeding, that he would enroll in a DVIP immediately, and that he had failed to do so. The State also alleged (albeit in the section of its motion detailing Cooksey's failure to report to his probation officer) that Cooksey's probation officer had "directed [him] to start DVIP immediately." (A separate condition of Cooksey's probation required him to "abide by any special instructions given" by his probation officer.) Cooksey, who was represented by counsel, admitted to the allegations, and the court terminated Cooksey's probation and imposed his remaining suspended time.
On appeal, Cooksey argues that the court erred in accepting his admission to violating General Condition No. 15 - the condition requiring him to "enroll in and complete" a DVIP - because, according to Cooksey, there was not a reasonable factual basis in the record for concluding that he had violated that condition. Specifically, Cooksey points out that at his previous probation revocation hearing, the court only instructed him to complete a DVIP thirty days before the end of his probationary term. He argues that because he still had nearly a year of probation left when the State moved to revoke his probation for the third time, he had not technically violated the condition requiring him to enroll in and complete a DVIP.
There are multiple problems with Cooksey's argument. First, Cooksey's appeal is likely moot. Cooksey has been released from custody and has served all of his time in connection with the underlying charges in this case. Cooksey asserts that his appeal is not moot because there are potential collateral consequences - namely that if he commits a new crime, his probation revocation could be used against him at some future sentencing or future probation or parole hearing. It is true that some jurisdictions have found that this potential collateral consequence is sufficient to preclude application of the mootness doctrine. But even if we were to agree with those jurisdictions in a general sense (an issue we do not decide), we doubt whether there are any meaningful collateral consequences in Cooksey's case, as Cooksey only appeals one of the State's three reasons for seeking to revoke his probation, and he does not dispute any of the underlying facts the court relied on in finding good cause to revoke his probation and impose his remaining suspended time.
See, e.g., State v. McElveen, 802 A.2d 74, 83-84 (Conn. 2002). But see, e.g., State v. Legg, 417 P.3d 592, 599-600 (Utah 2018).
Furthermore, Cooksey's argument rests on the assertion that before accepting a defendant's admission that they violated probation, the trial court has an independent constitutional duty to determine that there is an adequate factual basis in the record for that admission. We question whether such a duty exists. Cooksey analogizes his admission to violating probation to a defendant who pleads guilty to a criminal offense. Although Cooksey is correct that when a defendant pleads guilty the trial court has an independent obligation to ensure that there is a "reasonable basis for the plea," we note that this requirement stems from Alaska Criminal Rule 11(f), which does not apply to probation revocation proceedings. Cooksey acknowledges this, but nevertheless argues that we should apply this same requirement to admissions at a probation revocation hearing as a matter of constitutional due process.
The problem with this argument is that we have never recognized a constitutional basis for Criminal Rule 11(f), and other courts, interpreting analogous provisions, have repeatedly held that it is not constitutionally required. Thus, Cooksey is effectively asking this Court to recognize a new rule of constitutional due process for probation revocation proceedings that is more protective than the analogous constitutional requirements for when a defendant pleads guilty to a criminal offense. Accepting this argument would invert the traditional view that "the full protections of criminal law and procedure often do not apply to probationers."
See 5 Wayne R. LaFave, Criminal Procedure, § 21.4(f), at 1017-18 n.242 (4th ed. 2015) (collecting cases).
State v. Pulusila, 467 P.3d 211, 221 (Alaska 2020) (emphasis added); see also Morrissey v. Brewer, 408 U.S. 471, 480 (1972) ("We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.").
But even if we were to agree with Cooksey that the superior court was required to find a reasonable factual basis before accepting his admission (and that his appeal is not moot), we would still affirm the judgment of the superior court. There can be no dispute that the State's allegations - that Cooksey's probation officer instructed him to enroll in a DVIP immediately, and that Cooksey made no effort to do so - provided a reasonable factual basis upon which to conclude that Cooksey violated the condition of probation requiring him to "enroll in and complete" a DVIP.
Cooksey's argument to the contrary focuses on the fact that he was not required to "complete" the DVIP until thirty days prior to the end of his probationary term. That is true, but the State never alleged that Cooksey violated his probation by failing to "complete" a DVIP. Rather, the State alleged that Cooksey had failed to enroll in a DVIP in a timely fashion after promising the court he would and after being instructed by his probation officer to do so. Cooksey admitted to these allegations and agreed that they constituted a violation of the requirement that he "enroll in and complete" a DVIP. Under these circumstances, the superior court did not err in accepting Cooksey's admission to violating probation.
Finally, Cooksey assertsthat thecourt erred infindinggood causetorevoke probation and in imposing an excessive sentence. These arguments are without merit. The superior court explained that, in response to the State's second petition to revoke probation, it had extended Cooksey's probation for a year in the hope that he would meaningfully engage in probation, despite Cooksey's multiple violations of probation over his initial 2-year probationary period. Following the court's extension, Cooksey failed to report to his probation officer, failed to engage in a DVIP, and committed the new crime of providing false information to a police officer. Under these circumstances, the court did not err in finding good cause to revoke Cooksey's probation and in imposing the remainder of Cooksey's suspended time.
The judgment of the superior court is AFFIRMED.