Opinion
Court of Appeals No. A-11182 No. 6232
08-26-2015
JOHN RUSSELL INGLES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, 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. 4FA-95-1527 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Larry D. Card, Judge. Appearances: David Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER.
The State charged John Russell Ingles with multiple probation violations. Ingles admitted three of the charged violations, and Superior Court Judge Philip R. Volland found a fourth violation. Superior Court Judge Larry D. Card presided over the disposition hearing on the violations. Ingles asked that the hearing be continued until Judge Volland was available. Judge Card denied Ingles's request and then, as part of the disposition, imposed twenty-six special conditions of probation that Ingles's probation officer recommended.
For the reasons that follow, we hold that the superior court did not abuse its discretion in denying Ingles's request for a continuance. But because of the lack of findings to support the conditions, we vacate the superior court's imposition of the twenty-six special probation conditions and remand for further proceedings.
Facts and proceedings
Ingles was convicted of nine counts of first-degree sexual abuse of a minor for conduct involving his eleven-year-old niece. In 1996, Superior Court Judge Richard D. Savell sentenced Ingles to 25 years and 8 months with 8 years suspended and 10 years of probation, subject to eleven general and nine special conditions of probation. Ingles was released from prison to probation in January 2007, and he then began the sex-offender treatment required by his probation conditions.
See Ingles v. State, 1997 WL 796504, at *1, 8 (Alaska App. Dec. 24, 1997) (unpublished).
In May 2010, the Anchorage police contacted Ingles in his van after a woman reported that Ingles had been following her. When Ingles's probation officer searched the van, the officer found stuffed animals and toys, as well as a digital camera containing photos of women and their children. Ingles's cell phone also contained photos of women and a photo of a half-dressed minor.
Ingles was discharged from his sex-offender treatment program a few days later. In the discharge letter, the treating psychologist wrote that Ingles "may be in his assault cycle and a danger to the community." The State then filed a petition to revoke Ingles's probation, alleging six probation violations, three of which were related to traffic violations and one of which was for Ingles's discharge from sex-offender treatment.
Judge Volland presided over the adjudicative phase of Ingles's probation revocation proceedings. Ingles admitted to the three allegations of traffic violations, and Judge Volland found that Ingles's discharge from sex-offender treatment was a violation of Ingles's probation condition requiring continued treatment. Ingles's probation officer was the only witness to testify during the adjudication. The State withdrew the remaining two allegations.
After two reschedulings, Ingles's disposition hearing was held on November 18, 2011, before Judge Card. At the start of the hearing, Ingles asked to have his case rescheduled again so that Judge Volland could preside over the disposition. The State opposed. Judge Card stated that Judge Volland was experiencing some "major health issues" and had communicated to Judge Card that the disposition hearing "was nothing that [Judge Card] couldn't do on his behalf." Judge Card stated that he had read through the predisposition report. Judge Card denied Ingles's request for a continuance.
The State requested that the court impose the twenty-six special conditions of probation that Ingles's probation officer recommended, but did not request the court to impose any additional incarceration for Ingles's probation violations.
After hearing from defense counsel and Ingles personally, the superior court found that community condemnation was the "number one" priority given the "very serious" nature of Ingles's original crimes. The court also found that Ingles's rehabilitation was important both for the safety of the community and for Ingles. Ingles was already serving time as a result of his parole being revoked, and the court found it was unnecessary to impose any additional time. The court adopted the twenty-six probation conditions, stating that they were "appropriate." The court stated it was imposing the conditions so that people would feel safe and not threatened around Ingles and because Ingles needed help in protecting himself.
Why we reject Ingles's assertion that he was entitled to have Judge Volland preside over the disposition hearing
Ingles contends that the superior court committed error when it denied his request to continue the disposition hearing to a date when Judge Volland would be available. Ingles argues that Judge Volland was "thoroughly familiar" with Ingles and his case. Ingles emphasizes that Judge Volland had presided over the two adjudication hearings and had read the predisposition report in preparation for an earlier scheduled disposition hearing in the case (that was then rescheduled).
It is well established that the original sentencing judge, if available, should ordinarily preside over a subsequent disposition hearing held on a petition to revoke the defendant's probation.
Trenton v. State, 789 P.2d 178, 178-79 (Alaska App. 1990); McRae v. State, 909 P.2d 1079, 1081 (Alaska App. 1996).
Here, however, the original sentencing judge, Judge Savell, had retired and consequently was not available. Judge Volland had presided over the adjudicative phase of the probation revocation proceeding, but Ingles was free to bring anything from the record of the adjudication hearings to Judge Card's attention at the disposition hearing. And while Judge Volland had read the predisposition report in preparation for an earlier hearing, Judge Card had read the same predisposition report. In these circumstances, the superior court did not abuse its discretion in denying Ingles's request to continue the disposition hearing until Judge Volland was available.
See Winston J. v. State, Dep't of Health and Soc. Servs., 134 P.3d 343, 345 n.3 (Alaska 2006).
See McRae, 909 P.2d at 1081.
Burleson v. State, 543 P.2d 1195, 1198 (Alaska 1975) (reviewing the denial of a motion to continue a sentencing hearing for abuse of discretion).
Why we vacate the probation conditions imposed by Judge Card
Ingles first claims that the superior court committed error when it made no case-specific findings justifying the twenty-six special conditions of probation that it imposed.
Second, Ingles claims that the special conditions of probation prohibiting him from possessing "sexually explicit material" and requiring him to submit to searches for such material, and the special condition prohibiting him from possessing material "relating to or part of the grooming cycle for his crime or that acts as a stimulus of arousal for [his] assault cycle," are unconstitutionally vague. For his second claim, Ingles relies on this Court's opinion in Diorec v. State, in which we held that a probation condition prohibiting possession of sexually explicit material provided constitutionally inadequate notice of what conduct was prohibited.
Diorec v. State, 295 P.3d 409, 417-18 (Alaska App. 2013).
The State concedes that with respect to Ingles's second claim, the challenged probation conditions need to be rewritten to provide adequate notice of what types of materials are prohibited. The State's concession is well-founded.
See Boles v. State, 210 P.3d 454, 455 (Alaska App. 2009) (appellate court has the duty to independently evaluate whether a concession of error is well-founded).
With respect to Ingles's first claim, the Alaska Supreme Court in Roman v. State explained that a defendant's conditions of probation must reasonably relate to the rehabilitation of the defendant and the protection of the public, while not unduly restricting the defendant's liberty. The superior court here made no case-specific findings justifying the imposition of the twenty-six special conditions of probation, stating only that "they're appropriate" and would help and protect Ingles and those around him. As the chief judge of this Court has explained:
Roman v. State, 570 P.2d 1235, 1240-42 (Alaska 1977).
This Court has recently seen several cases where sentencing judges more or less automatically imposed a list of restrictive conditions of probation proposed by the Department of Corrections, without a case-specific analysis of whether those conditions were justified under the Roman test. This is not allowed, even if the Department labels these conditions "standard."
Packard v. State, 2014 WL 2526118, at *5 (Alaska App. May 21, 2014) (Mannheimer, C.J., concurring) (unpublished). --------
On appeal, the State argues that support for the imposition of the individual special conditions can be found in the record of Ingles's original criminal case and from Ingles's conduct while on probation. But it is the superior court, not this Court, that must first evaluate the need for each condition of probation. The superior court's limited comments do not show that such an evaluation occurred.
Accordingly, we direct the superior court on remand to affirmatively determine what conditions are justified under the Roman test. The superior court should also ensure the conditions provide constitutionally adequate notice of what conduct is prohibited.
Conclusion
We AFFIRM the superior court's denial of Ingles's request for a continuance of his disposition hearing. We VACATE the twenty-six special conditions of probation and REMAND for further proceedings consistent with this opinion.