Opinion
Court of Appeals No. A-10812 Trial Court No. 2KB-10-68 CR No. 5871
08-22-2012
IRA R. FRANKSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John C. Cagle, Assistant District Attorney, Kotzebue, and Richard Svobodny, Acting 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge.
Appearances: David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John C. Cagle, Assistant District Attorney, Kotzebue, and Richard Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
In this case, Ira R. Frankson pleaded guilty to assault in the fourth degreeand coercion. These charges arose from an incident in which Frankson assaulted his girlfriend, B.K., after she tried to leave his residence and Frankson dragged her back inside. B.K. initially reported that Frankson also sexually assaulted her. But, she later testified that the sexual activity had been consensual.
AS 11.41.230(a)(1).
AS 11.41.530(a)(1).
At sentencing, in front of Superior Court Judge Ben Esch, the State argued for a special condition of probation which required Frankson, during the time he was in custody, to "enter and successfully complete a Sex Offender Treatment Program" if offered by the Department of Corrections. But the State did not present any evidence that Frankson had sexually assaulted B.K. Frankson objected to the condition, arguing that he did not commit a sexual assault, that he did not plead to any charge which was based upon his committing a sexual assault, and that there was no evidence that he committed a sexual assault. Without making any findings, Judge Esch imposed the condition of probation requiring sex offender treatment. Frankson appeals. We conclude that the record is insufficient to support imposition of the special condition of probation and remand for reconsideration of the special condition.
Factual and procedural background
On February 13, 2010, Officer Richard Holschen was called to Point Hope Health Clinic to investigate a report of an assault. When he arrived at the clinic, Holschen saw that B.K had numerous scratches on her face, neck, and upper chest. Her left eye was swollen shut, and her face was bruised and cut. B.K. informed Officer Holschen that she had been drinking with her boyfriend, Ira Frankson, at Frankson's house when he became violent. B.K. stated that she tried to leave and made it outside before Frankson apprehended her. Frankson began to hit and kick B.K. in the head and face. B.K. stated that Frankson dragged her back inside by her hair. B.K. informed Officer Holschen that when she was inside, Frankson forced her to perform fellatio on him and that he had sexual intercourse with her without her consent.
At grand jury, B.K. corroborated Officer Holschen's statement that Frankson physically assaulted her. Her testimony differed from her statement to Officer Holschen in one significant way: B.K. testified that she had consensual sex with Frankson. B.K. testified that she did not know what she told Officer Holschen because she was still drunk and in shock when she talked with him.
On February 19, 2010, the State initially indicted Frankson on six criminal counts — one count of kidnapping, two counts of sexual assault in the first degree, one count of assault in the second degree, and two counts of assault in the third degree — for attacking and sexually penetrating B.K.
But on July 7, 2010, the State filed an information which replaced the indictment, charging Frankson with one count each of assault in the fourth degree and coercion. The conduct underlying the coercion count is unclear from the information, but the information nowhere indicated that Frankson had committed a sexual assault. It stated that Frankson
[C]ompelled B.K. to engage in conduct from which there was a legal right to abstain or abstain from conduct in which there was a legal right to engage, by means of instilling in the person who was compelled a fear that, if the demand is not complied with, the person who made the demand or another may inflict physical injury on anyone.
In July 2010, Frankson entered into a Rule 11 plea agreement, under which he would plead guilty to the two counts enumerated in the information. The other counts listed in the original indictment would be dismissed.
The record of the plea hearing is ambiguous about whether the sentencing judge intended to consider the evidence which supported the original sexual assault charges. The prosecutor indicated that the factual basis for the charges was set out in the underlying complaint. (The original complaint affidavit included B.K.'s statements that she had been sexually assaulted.) But the prosecutor also specified that the basis for the coercion charge was that B.K. "was either ... taken back in the house ... or not permitted to leave for a sufficient period of time to commit the offense." And when Judge Esch initially explained the offenses to Frankson, he did not state that any sexual conduct was underlying either offense.
Moreover, no pre-sentence report was prepared in this case. As a consequence, there is little evidence in the record about whether there are events in Frankson's personal history which might warrant sex offender treatment.
Prior to sentencing, the State submitted a pleading entitled Suggested Special Conditions of Probation to the court. One of the State's suggestions — Proposed Special Condition No. 11 — was that "The defendant, while in custody and if offered by the Department of Corrections, shall enter and successfully complete a Sex Offender Treatment Program."
The court also received a letter from B.K., which asserted that Frankson's sentence was too long and unfair. In the letter, she again recanted the statements she made to Officer Holschen:
[A]ll those accusations that I said was all out of hate. I was so upset[,] I wasn't thinking clearly, and only had a few hours
of sleep, we drank [a lot] that night so I was pretty intoxicated. So I made some wrong statements that didn't occur that night. Why? I don't know, but that needs to be corrected now.
Neither the State nor Frankson offered evidence at sentencing. The State noted at sentencing that the plea agreement was a compromise based on the evidence and what the probable outcome at trial would be. Frankson objected to the special probation condition, arguing that he had not committed a sex offense, that there was no evidence that he had committed a sex offense, and that he had not pled to charges which reflected that he had committed a sex offense.
Judge Esch imposed the special condition of probation requiring Frankson to participate in sexual offender treatment. He stated that, "from the state's point of view ... [Frankson's] conduct in this case ... included acts of non-consensual sexual contact with [B.K.]." Frankson argues on appeal that the record and Judge Esch's findings are insufficient to support the special condition of probation.
Why we conclude the record is insufficient to support imposition of the special condition of probation
The trial court has the discretion to impose a probation condition requiring the defendant to participate in a treatment plan while incarcerated, but the condition "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."
Alaska Statute 12.55.080 grants the trial court discretion to "place the defendant on probation for a period and upon the terms and conditions as the court considers best." Alaska Statute 12.55.015(a)(10) allows the sentencing court to "order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitation program that is related to the defendant's offense or to the defendant's rehabilitation."
Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
Generally, a condition of probation may be supported by the conduct underlying the defendant's conviction, or it may be based on the defendant's past history or criminal record. Regardless of the grounds for the condition of probation, there must be a sufficient connection between these grounds and the probation condition.
See AS 12.55.005; Allen v. Municipality of Anchorage, 168 P.3d 890, 895 (Alaska App. 2007); Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
See Sprague v. State, 590 P.2d 410, 417-18 (Alaska 1979); Allain, 810 P.2d at 1022.
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The record in this case is insufficient to support the special condition of probation requiring Frankson to undergo sex offender treatment. The only information which arguably supports this condition of probation is B.K.'s statement to Officer Holschen, in which she reported that Frankson had sexually assaulted her. But B.K. recanted her statement at the grand jury and denied having been sexually assaulted in the letter submitted at sentencing. The information which Frankson pleaded to is vague and appears to have been designed to avoid the controversy over whether Frankson had committed a sexual assault. The State's statement of the factual basis for the coercion charge similarly avoided this issue. Sentencing was conducted without a pre-sentence report, and no evidence was presented at the sentencing hearing. Nor, did Judge Esch make any findings justifying the imposition of the special condition of probation.
We accordingly conclude that the record is insufficient to support the imposition of the special condition of probation. We accordingly VACATE the special condition of probation and REMAND the case to the Superior Court.