Opinion
A-13655
08-31-2022
DONALD HOSIER, Appellant, v. STATE OF ALASKA, Appellee.
Andrew C. Miller (opening memorandum) and Josh Carson (reply memorandum), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District Trial Court No. 1JU-17-00349 CR, Juneau, Philip M. Pallenberg, Judge.
Andrew C. Miller (opening memorandum) and Josh Carson (reply memorandum), Assistant Public Defenders, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Donald Hosier pleaded guilty, pursuant to a plea agreement, to one count of third-degree assault and one count of third-degree weapons misconduct for conduct that occurred in March 2017. Pursuant to the plea agreement, Hosier was sentenced to 5 years with 3 years suspended (2 years to serve) and 5 years' probation.
AS 11.41.220(a)(1)(A) and AS 11.61.200(a)(1), respectively.
After Hosier's probation was revoked twice for methamphetamine use, the State filed a third petition to revoke Hosier's probation - alleging that he had violated his probation in November 2019 and March 2020 by failing to report to his probation officer, possessing alcohol, possessing methamphetamine, refusing to submit to a chemical test for alcohol and controlled substances, and associating with a convicted felon. The State later withdrew the allegation related to the association with a convicted felon, and Hosier admitted to the conduct underlying the other allegations.
At the probation revocation hearing, Hosier argued that his sentencing was governed by the probation revocation statute that was in effect at the time he committed his underlying criminal offenses. That probation revocation statute, which was repealed in 2019, limited the trial court's sentencing authority when the probation revocation was based only on "technical" probation violations. "Technical" violations were defined as violations of the conditions of probation that did not constitute "(A) a new criminal offense; (B) failing to complete sex offender treatment; or (C) failing to complete an intervention program for batterers."
See former AS 12.55.110(c)-(h) (effective Jan. 1, 2017). These statutory provisions were part of a larger 2016 criminal omnibus bill, Senate Bill 91, that was directed at various criminal justice reforms. See SLA 2016, ch. 36. The legislature later repealed the majority of Senate Bill 91, including the probation sentencing limits at issue in this case. See FSSLA 2019, ch. 4, § 138.
Compare AS 12.55.110 with former AS 12.55.110 (2017).
See former AS 12.55.110(h)(2) (2017).
The trial court disagreed that its sentencing decision was limited by the prior statute, and the court imposed 10 months of Hosier's suspended time.
Under the prior statute, the court would have been limited to a maximum sentence of 10 days for a third probation revocation based on a technical violation other than absconding. See former AS 12.55.110(c)(1)-(3) (2017). If the technical violation was absconding, the court was limited to a maximum sentence of 30 days. See former AS 12.55.110(d) (2017).
Hosier now appeals, arguing that the trial court violated the prohibition against ex post facto laws when it sentenced him under the existing probation statute rather than the more lenient statute that was in effect when Hosier committed his original offenses. Hosier also argues that the trial court violated his right to due process when it failed to apply the more lenient probation statute because, according to Hosier, this statute was an "implicit" term of his plea agreement.
We conclude that we do not need to reach either argument because the issue is moot-that is, the outcome would be the same even if we ruled in Hosier's favor and held that the former probation revocation statute applied to his case.
Unlike Hosier's first two probation violations for methamphetamine use, his third probation revocation was not based solely on technical violations. In the amended third petition to revoke his probation, Hosier was alleged to have possessed methamphetamine - a criminal offense under Alaska law. Indeed, at the revocation hearing, Hosier directly admitted to possessing methamphetamine, thereby admitting to a criminal offense under Alaska law.
Using methamphetamine is considered a technical violation because drug possession, not drug use, is criminalized under Alaska law. See AS 11.71.050(a)(4) (criminalizing possession of methamphetamine); cf. Robinson v. California, 370 U.S. 660, 666-68 (1962) (holding that a state law "which makes the 'status' of narcotic addiction a criminal offense . . . inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment").
.See AS 11.71.050(a)(4); AS 11.71.150(e).
Thus, even assuming arguendo that Hosier is correct and that the trial court was required to apply the prior probation statute, the sentencing limits under the prior statute would still not apply because Hosier's third probation revocation was not based solely on technical violations. In other words, the trial court had the authority to impose 10 months of suspended time, regardless of which probation statute applied.
The judgment of the superior court is AFFIRMED.