Opinion
A-13419
10-13-2021
RALPH LAFAVOUR, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District 1JU-05-01283 CR, Juneau, Amy G. Mead, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Pursuant to a plea agreement, Ralph Lafavour pleaded guilty to one count of first-degree sexual abuse of a minor. As a part of this agreement, Lafavour received a sentence of 12 years with 4 years suspended (8 years to serve), followed by 10 years of probation. Lafavour's probation included a condition that he actively participate in and complete a sex offender treatment program.
AS 11.41.434(a)(1).
Following his release from incarceration, Lafavour obtained permission to have his probation supervision transferred to the State of Washington. After six years of supervision in Washington, Lafavour was terminated from his sex offender treatment program and returned to Alaska, where the superior court revoked his probation and imposed the remainder of his suspended time. Lafavour appeals, claiming that the trial court lacked good cause to revoke his probation.
See AS 12.55.110(a).
During adjudication of the petition to revoke Lafavour's probation, Lafavour admitted that he had not successfully completed the treatment program, despite participating in treatment for nearly six years. Lafavour nonetheless argued that his treatment was functionally complete. Relying on documents from his treatment provider stating that he had "completed the treatment portion" of his program, Lafavour argued he was only terminated from the program because he had failed a "full disclosure" polygraph examination, the last step of his treatment program. Lafavour therefore argued that the court should not impose any time to serve and should return him to probation and deem him to be "treatment complete."
.See State v. Pulusila, 467 P.3d 211, 218 (Alaska 2020) (discussing the two stages of probation revocation proceedings).
In order to evaluate Lafavour's claim, the court conducted an extended inquiry into Lafavour's performance in his treatment, polygraph examinations, and probation generally. Lafavour's treatment provider testified that during his six years of treatment, Lafavour had not disclosed a prior incident of sexual misconduct until his final polygraph examination. The provider also testified that Lafavour demonstrated a lack of accountability for this conduct by subsequently denying that the incident had occurred. The additional incident of misconduct required additional work within the treatment program, meaning that Lafavour's treatment was not complete at the time he was discharged from the program.
Lafavour's Washington probation officer also testified about Lafavour's various probation violations, including multiple incidents of phone sex and possession of pornographic materials, which were specifically prohibited by his conditions of supervision and resulted in periods of incarceration in Washington. The probation officer also indicated that Lafavour had failed over a dozen polygraph exams, some of which had led to the discovery of these violations. The probation officer summarized Lafavour's termination from supervision in Washington and subsequent return to Alaska as "death by a thousand cuts, just years and years of noncompliance."
Washington uses the title "Community Corrections Officer"; the Washington officer indicated that this role is identical to what most systems refer to as a "probation officer."
On appeal, Lafavour does not challenge the court's reliance on the polygraphs.
In its remarks, the superior court found that Lafavour presented a risk of harm to the community as an untreated sex offender. Although the court was initially concerned about revoking Lafavour's probation because of a single failed polygraph - referring to the fact that his failure of a polygraph was the event that preceded the filing of a petition to revoke probation - it eventually concluded that "that wasn't really why we're here." The court noted that Lafavour had failed numerous polygraphs, violated his probation by leaving Washington without authorization, and was ultimately terminated from treatment because of "a lack of accountability... and a failure to really buy into the program." Because the court determined that Lafavour's original sentence was crafted to facilitate his treatment, and Lafavour had failed to complete his treatment, the court imposed the remainder of Lafavour's suspended time.
On appeal, Lafavour raises a single claim. He contends that the trial court failed to find good cause to revoke his probation. In support of this claim, Lafavour advances two arguments, neither of which is persuasive.
See Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973) (holding that a finding of "good cause" to revoke probation requires the court to find that "continuation of probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation.")
First, Lafavour analogizes his case to Silas v. State In Silas, we held that discharge from a sex offender treatment program is not itself sufficient to constitute good cause to revoke probation. Rather, we concluded that a court must consider the circumstances of the probation violation, and whether the violation showed that the aims of probation could not be achieved, before determining that revocation is appropriate.Because the trial court in Silas had ruled that the reasons for Silas's discharge from treatment were irrelevant, and therefore had not determined whether there were good reasons for Silas's discharge, we remanded Silas's case to the trial court for reconsideration.
Silas v. State, 425 P.3d 197 (Alaska App. 2018).
Id. at 198.
Id. at 202.
Id. at 198.
In this case, however, the superior court did not rely solely on Lafavour's termination from the treatment program, but rather based its decision on Lafavour's entire course of conduct while on probation supervision and the broader reasons for his discharge from treatment. The court therefore complied with our directive in Silas.
Second, Lafavour argues that the court's remarks during the disposition hearing about his lack of accountability did no more than recount the reasons that the treatment provider discharged Lafavour from his program, rather than identifying that lack of accountability as good cause for revoking Lafavour's probation. But read in context, the court's comments demonstrate that the court found the treatment provider's findings credible and adopted the findings as its own in determining that there was good cause to revoke Lafavour's probation.
Accordingly, given the totality of the superior court's remarks, we conclude that the court found good cause to revoke Lafavour's probation. We further conclude that this finding is supported by the record.
The judgment of the superior court is AFFIRMED.