Opinion
Court of Appeals No. A-13178 No. 6911
12-09-2020
TONY JACKSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Hatton G. Greer, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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. 2KB-16-00063 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Romano D. DiBenedetto, Judge. Appearances: Hatton G. Greer, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
In 2016, eighteen-year-old Tony Jackson, along with his brothers, seventeen-year-old Brandon Nelson and nineteen-year-old Frank Jackson Jr., participated in a robbery that resulted in the death of Joshua Sours III. Pursuant to a plea agreement, Tony Jackson pleaded guilty to first-degree robbery and first-degree vehicle theft for his role in the events leading to Sours's death, in exchange for a composite sentence of 17 years' imprisonment with 8 years suspended (9 years to serve). The agreement left Jackson's probation conditions open to the discretion of the sentencing court. One of the conditions the court ultimately imposed, over Jackson's objection, prohibits contact between Jackson and his brothers without prior permission from the court.
AS 11.41.500(a)(1) and AS 11.46.360(a)(2)(A), respectively.
On appeal, Jackson argues that this probation condition impermissibly infringes on his constitutional right to familial association. He contends that the trial court imposed the condition without ensuring that it was narrowly tailored and without considering less restrictive alternatives.
Probation conditions restricting contact between family members implicate the constitutional rights of privacy, liberty, and freedom of association, and are thus subject to special scrutiny. To survive special scrutiny, a condition must be "narrowly tailored to avoid unnecessary interference with the constitutional right at issue, and the [sentencing] court must affirmatively consider, and have good reason for rejecting, any less restrictive alternatives."
Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995) (recognizing that a probation condition restricting marital association "plainly implicates the constitutional rights of privacy, liberty and freedom of association"); see also Simants v. State, 329 P.3d 1033, 1038 (Alaska App. 2014) (recognizing that a probation condition that restricts a defendant's familial associations is subject to special scrutiny); Hinson v. State, 199 P.3d 1166, 1174-75 (Alaska App. 2008) (same).
Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015).
Although "discouraging a probationer from associating with former partners in crime is obviously related to the goal of rehabilitation," prohibiting contact between family members "is just as obviously an extreme restriction of liberty." While we have recognized the inherent tension in these competing sentencing considerations, we have consistently vacated conditions restricting contact between family members in the absence of "case-specific circumstances demonstrating actual necessity."
Dawson, 894 P.2d at 680.
Id.; see also, e.g., Johnson v. State, 421 P.3d 134, 140 (Alaska App. 2018) (vacating and remanding a probation condition restricting contact between father and son co-defendants: "their status as co-defendants (or felons) alone did not override the importance of their familial relationship").
Here, the sentencing court did not explain why a total prohibition on contact between the brothers was necessary, or why readily apparent less restrictive alternatives, such as supervised or monitored contact, would not satisfy the goals of probation while still preserving the brothers' constitutionally protected relationship. To the contrary, the court appeared to start with the presumption that contact should not be permitted, and then allowed contact only if Jackson could later demonstrate to the court a compelling need.
The State argues that the brothers did not propose any less restrictive alternatives to the sentencing court, and thus Jackson's claim should be reviewed only for plain error. But Jackson did argue that the condition was overly restrictive because it would prohibit him from visiting his brothers even in a supervised setting. We conclude that Jackson preserved his challenge to the probation condition. Cf. Powell v. State, 2018 WL 3660226, at *2-3 (Alaska App. Aug. 1, 2018) (unpublished) (directing the trial court to reconsider a probation condition that limited the defendant's contact with his mother and brother, even in the absence of any objection, when it was readily apparent that reasonable, lesser restrictions were available). --------
We therefore VACATE the probation condition prohibiting contact between Jackson and his brothers and REMAND this case to the sentencing court for application of special scrutiny to the challenged probation condition.