Opinion
Court of Appeals No. A-12688 No. 6843
12-26-2019
GUADALUPE R. FLORES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 1JU-10-01217 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Louis James Menendez, Judge. Appearances: Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Guadalupe R. Flores appeals the revocation of his probation. For the reasons explained in this decision, we agree with Flores that there was insufficient evidence to support one of his two probation violations. However, we also find that Flores has waived any challenge to the other probation violation. Accordingly, we reverse the superior court's ruling with regard to the challenged probation violation, and remand this case to the superior court to determine whether the disposition is affected by this reversal.
Factual and procedural background
In 2011, Flores pleaded guilty to attempted first-degree assault after he caused serious physical injuries to his mother's boyfriend. He was sentenced to 9 years with 4 years suspended and 5 years probation.
In 2013, Flores was released on parole, but after he committed a series of parole violations, he was ordered to serve the remainder of his time.
In 2015, Flores was released on probation. Shortly thereafter, the State filed a petition to revoke probation, alleging that Flores failed to report to the probation office. The State later amended the petition to include allegations that Flores tested positive for amphetamine and committed three new criminal offenses — criminal mischief, resisting arrest, and assaulting a police officer. The court found that Flores committed the alleged violations and imposed 4 months of his previously-suspended time.
In 2016, the State filed a second petition to revoke probation. This petition is the basis for the instant appeal. In the petition, the State alleged that Flores failed to secure the prior written permission of a probation officer before changing his residence. The State later amended the petition to include a second allegation that Flores violated a condition of his probation that required him to "submit immediately to a urinalysis . . . to determine the use of controlled substances when directed to do so by a probation officer of the Department of Corrections."
An adjudication hearing was held on the second petition to revoke probation. Flores's probation officer, Lillian Ward, testified at the hearing. Ward described going to Flores's approved residence with another probation officer and speaking with his mother, who stated that Flores did not live there, he had not lived there for a long time, and she did not know where he was. Ward tried to reach Flores by phone, but the numbers no longer worked.
Ward further testified that Flores was subsequently arrested and taken to Lemon Creek Correctional Center. However, because Flores appeared to be experiencing a drug overdose, the staff at Lemon Creek sent him to the hospital. After the hospital cleared Flores, he returned to Lemon Creek for processing. At that time, a different probation officer, Sara Dallas, directed Lemon Creek to obtain a urine sample from Flores.
Dallas did not testify at the adjudication hearing. The only witness the State called was Ward, who explained that Dallas told her that she had directed Lemon Creek to request a urine sample. Ward did not know whether Flores was actually asked to submit to a urinalysis or what exactly Lemon Creek staff said to Flores when directing him to submit to a urinalysis. But Ward testified to what she expected likely happened:
It is my expectation, and I think our office's expectation, that when we ask a Lemon Creek Correctional Center employee to collect a urine sample for somebody who is on probation or parole, that that staff member would ask the probationer or parolee to provide a urine sample, give them approximately two hours to provide a valid sample, and let them know that if they can't provide a valid sample within two hours it's considered a refusal. And that also that sample is being
collected on behalf of the probation or parole office and not — and not Lemon Creek Correctional Center. Because they have their own UA process.Ward further testified that she had no documentation that Flores had submitted to the urinalysis requested by Dallas, and she therefore concluded that he must have refused to provide one.
After the State rested, Flores called his mother, Katherine Milton, as a witness. Milton testified that she had lied when she told the probation officers Flores did not live with her. She was worried they were from the housing authority and that she would lose her housing if she admitted that Flores lived with her.
At the conclusion of the evidence, Flores asked the court to find that the State failed to carry its burden as to both allegations. With regard to the first allegation, that Flores had moved residences without informing his probation officer, Flores urged the court to credit Milton's testimony that she lied when she told Ward that Flores no longer lived with her. And Flores argued that the evidence was insufficient to support the second allegation, that he refused to submit to a urinalysis, because although he acknowledged that Dallas directed staff at Lemon Creek to request the sample, there was "zero evidence [that he] was told by anybody that it was a probation officer that was making this request."
The court found that the State satisfied its burden of proving both violations. First, it found that Flores's mother was not credible and that the State proved by a preponderance of the evidence that Flores had violated the condition that required he get prior approval before changing his residence. Second, the court found that the State proved Flores was directed to submit to a urinalysis at Lemon Creek at the direction of a probation officer and failed to do so. Specifically, the court found that there was some indication that Flores was using controlled substances when he was arrested, and that after Flores was cleared by the hospital, Dallas asked Lemon Creek to attempt to conduct a urinalysis but no urinalysis was completed. The court concluded that these facts established that Flores violated the condition.
In its disposition remarks, the court stated that it was concerned with Flores's background of being aggressive and threatening toward others, including police officers. It then referred to the allegations in the petition before the court, telling Flores, "You didn't do the UA. You were told to do the UA. You should have done it." But the court also acknowledged that both violations were technical in nature, and did not involve the kind of aggressive behavior that Flores had exhibited in the past. Accordingly, the court imposed half the time that the State had requested for both violations — a period of 2 months. The court believed this sentence was commensurate with Flores's conduct and was appropriate to further his rehabilitation, deter future misconduct, and affirm societal norms.
Why we vacate the superior court's ruling on the second alleged probation violation
On appeal, Flores argues that the superior court erred when it found that the State had proved by a preponderance of the evidence that Flores had violated a condition of probation by failing to provide a urine sample at the request of a probation officer. We agree with Flores that the State failed to provide sufficient evidence of this probation violation.
In order to find Flores guilty of the probation violation, the trial court needed to find that (1) Flores was aware that his probation conditions required him to take a urine test at the direction of a probation officer; (2) Flores was asked to take a urine test at the direction of his probation officer; (3) Flores was aware that the requested urine test was at the direction of his probation officer; and (4) Flores refused to take the requested test.
Cf. Hamrick v. State, 64 P.3d 175, 178 (Alaska App. 2003) (holding that to revoke probation for failing to timely file an application for sex offender treatment, Department of Corrections had a duty to make the probationer's duties clear to him and to make sure that he understood that his failure to comply would violate his probation).
The State submitted evidence showing that Flores was aware of his probation condition requiring him to take a urine test at the direction of a probation officer, but, as Flores points out, the State failed to present any evidence that staff at Lemon Creek told him that the test had been requested by a probation officer and that refusing to submit to the test would constitute a violation of his probation.
(We also note that the State failed to present any evidence that Flores was actually asked to submit to the test. Notably, Ward testified that Dallas had requested Lemon Creek staff to administer a urine test, but she provided no evidence that Lemon Creek had actually acted on that request. Instead, Ward relied on the absence of any record of a urine test for that day in Flores's record as proof that the proper procedures had been followed.)
We acknowledge that Ward testified to her general "expectation" that Lemon Creek staff would have acted on the other probation officer's request for a urine test and would have informed Flores that the urine test was being requested at the direction of a probation officer. But Ward pointed to no formal policies or procedures that explained the basis for this expectation, nor did she provide any corroborating evidence that such expectations were reasonable or that the "expected" procedures were actually followed in this case.
Even viewing the evidence in the light most favorable to the State, we find this record insufficient to establish that Flores violated the condition that he submit to a urinalysis at the direction of a probation officer. Alaska law authorizes probation officers to enlist the assistance of others in the execution of their duties, including other law enforcement officers. But when a probation officer exercises this authority, care must be taken to ensure that the person on probation knows the request is being made at the direction of a probation officer and that failure to comply would constitute a violation of probation. The State failed to present any evidence that the probation officer, or staff at Lemon Creek acting on her behalf, notified Flores that the request for the test came from the probation office. Accordingly, we reverse the superior court's ruling with regard to this probation violation.
AS 33.05.040(a)(3) (authorizing probation officers to "use all suitable methods, not inconsistent with the conditions imposed by the court, to aid probationers and to bring about improvements in their conduct and condition"); Brown v. State, 127 P.3d 837, 845 (Alaska App. 2006) (holding that a probation officer may enlist police assistance for an investigative stop of a probationer).
See Hamrick, 64 P.3d at 178 (holding that the Department of Corrections did not give Hamrick sufficient notice that his actions would violate a condition of his probation).
Why we find that Flores waived any challenge to the first probation violation
As we noted previously, the superior court found that Flores committed two violations — one for changing his residence without prior written permission from his probation officer and one for refusing to submit to a urinalysis. At the end of the adjudication hearing, the court unambiguously announced, "We have two allegations here. I think the state's carried their burden as to both of them[.]"
In his opening brief, Flores challenges only the superior court's finding as to the second violation — that he failed to submit to a urinalysis. In his reply brief, however, Flores argues that the court did not find that he committed the first violation — that he changed his residence without prior written permission. He further argues that if the court "implicitly" found the violation, it was not supported by sufficient evidence. We note that the superior court's finding of this probation violation relied heavily on the court's credibility findings — credibility findings that Flores does not otherwise challenge. In any case, we decline to consider this issue because Flores waived any challenge to this probation violation by failing to raise this issue in his opening brief.
See Berezyuk v. State, 282 P.3d 386, 398 (Alaska App. 2012) (noting that "[o]ne of the precepts of appellate procedure is that an appellant is not allowed to raise new claims in their reply brief" and that "if a litigant raises a claim for the first time in their reply brief, that claim is deemed waived or forfeited (even if the claim was litigated in the lower court)").
Conclusion
The judgment of the superior court is VACATED. This case is remanded to the superior court to determine whether the disposition is affected by our decision.