Opinion
Court of Appeals No. A-12142 No. 6271
01-20-2016
KURT M. LEPPING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kurt Lepping, in propria persona, Anchorage, for the Appellant. Arne F. Soldwedel, Assistant Attorney General, Office of Special Prosecutions, 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. 3AN-10-1773 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Catherine M. Easter, Judge. Appearances: Kurt Lepping, in propria persona, Anchorage, for the Appellant. Arne F. Soldwedel, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Kurt M. Lepping was convicted of numerous fish and game offenses. Among the conditions of his probation, Lepping is forbidden from assisting or even accompanying others while they hunt, trap, or fish (except for members of his immediate family when they fish in the lake next to Lepping's home). In this appeal, Lepping argues that this prohibition is unjustified or overly restrictive.
Under Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977), the conditions of a defendant's probation must be "reasonably related to the [defendant's] rehabilitation ... and the protection of the public", and they must not be "unduly restrictive of [the defendant's] liberty". We acknowledge that the challenged condition of probation restricts Lepping's right to associate with family and friends. But given the circumstances behind Lepping's convictions, we conclude that this condition of probation is reasonably related to the protection of the public and Lepping's rehabilitation, and that this restriction on Lepping's liberty is justified.
Lepping also argues that the district court violated the constitutional guarantee against double jeopardy by adding the word "trapping" to the challenged condition of probation, when the original wording of the condition of probation had not expressly included trapping. But the record shows that this restriction on trapping was inherent in the original wording of the probation condition, and that the court's insertion of the word "trapping" did not alter the meaning of the condition as it was originally imposed.
Underlying facts and procedural background of this appeal
Lepping was a licensed game transporter who was convicted of twenty-three violations of the fish and game laws. He committed these offenses over a number of years, and nearly all of these offenses involved two couples who were his clients, the Ashfords and the Greenos.
Lepping helped these four clients violate numerous fish and game laws, including the taking of a number of black bears "same day airborne". He also illegally provided guiding services without being licensed to do so. (Lepping had at one time been licensed as an outfitter guide, but he surrendered that license as part of his plea agreement in an earlier federal fish and game prosecution.)
At trial, Lepping claimed that he had not engaged in "guiding" because these two couples were his good friends, and he was assisting them for free. (Under state law, if Lepping did not receive any compensation, either directly or indirectly, for his services, then he was not "guiding".) The jury rejected this defense.
Lepping v. State, 2014 WL 2999191 at *7 n. 24 (Alaska App. 2014), citing AS 08.54.790(9) ("Guide" means "to provide, for compensation or with the intent or with an agreement to receive compensation, services, equipment, or facilities to a big game hunter in the field by a person who accompanies or is present with the big game hunter in the field either personally or through an assistant[.]").
In our first decision, we affirmed Lepping's convictions and sentence, with the exception of one condition of Lepping's probation: a condition that prohibited Lepping from being present with, or otherwise accompanying, any person "in the field".
We concluded that this condition of probation was overly restrictive of Lepping's liberty because it prohibited Lepping from going into the field with family and friends for any purpose — even when there was no hunting or fishing involved. We therefore directed the district court to reconsider this condition of Lepping's probation. We also directed the district court to define what it meant by "the field".
Lepping, 2014 WL 2999191 at *1, *20.
Upon remand, the district court defined "the field" as any place "[where] one can engage in hunting, trapping, or fishing", and the court issued the modified conditions of probation that are at issue in the present appeal.
Under Lepping's current conditions of probation, he is forbidden from personally hunting or fishing. He is also forbidden from assisting anyone else in hunting, trapping, or fishing. And Lepping is further forbidden from accompanying anyone who is hunting, trapping, or fishing, except for members of his immediate family when they fish in Anderson Lake. (Lepping's home is located next to Anderson Lake.)
Lepping's claims on appeal
In this renewed appeal, Lepping challenges the third condition described in the preceding paragraph — the condition that forbids him from accompanying anyone who is hunting, trapping, or fishing (except for members of his immediate family when they fish in Anderson Lake). Lepping contends that this condition is unjustifiably restrictive because it prohibits him from participating in almost any hunting or fishing excursion with the members of his immediate and extended family.
Lepping does not contest the aspect of the court's order that (as he puts it) prohibits him from "accompany[ing] strangers into the field and guid[ing] them under the pretext of ... a recently established friendship". But Lepping argues that the court's order is overly broad to the extent that it prevents him from joining the members of his immediate or extended family when they go hunting or fishing — which Lepping describes as "one of the joys of being a husband, father, uncle, nephew, or brother".
We agree with Lepping that the restriction on hunting and fishing excursions with family members does not directly relate to the goal of preventing Lepping from engaging in any more offenses like the ones in this case — i.e., acts of illegal guiding committed under the pretext of providing assistance to "friends".
But as we noted earlier, Lepping's conditions of probation forbid him from personally engaging in hunting or fishing. Given Lepping's demonstrated willingness to resort to subterfuge to evade the law, the sentencing court could reasonably conclude that there was a good chance that Lepping would violate this personal restriction on hunting and fishing if the court allowed him to accompany family members on hunting and fishing excursions.
We therefore uphold this aspect of Lepping's conditions of probation.
Lepping also argues that the district court unlawfully enlarged the challenged condition of probation on remand by inserting the word "trapping". Lepping notes that this condition of probation, as originally formulated, did not expressly refer to trapping.
Generally speaking, once conditions of probation are imposed, they can not be increased or made more restrictive except in response to the defendant's violation of probation or other changed circumstances. But as we are about to explain, we conclude that trapping was included in the original formulation of the probation condition, even though that original formulation did not expressly include the word "trapping".
See Reyes v. State, 978 P.2d 635, 640 (Alaska App. 1999). --------
As originally pronounced, the challenged condition of probation prohibited Lepping from being present with, or otherwise accompanying, anyone in the field — but the condition was silent as to what Lepping could or could not do when he was with other people in the field. Thus, the original formulation of the probation condition did not expressly refer to "hunting", "fishing", or "trapping".
When this Court directed the district court to reconsider this condition of probation, we told the court to define what it meant by "the field", and to more narrowly define the groups of people whom Lepping could not accompany there.
On remand, the district court defined "the field" as any place "[where] one can engage in hunting, trapping, or fishing". Lepping does not challenge this new definition of "the field".
Assuming that the court chose this phrase because it better described the court's original intention, it would follow that the court's original intention was to restrict Lepping's participation in all three of these named activities — "hunting", "fishing", and "trapping".
Thus, the district court did not increase Lepping's probation obligations, but merely clarified them, when the court decided to amend the other related descriptions of Lepping's prohibited activities — so that these related descriptions now also expressly include the words "hunting", "fishing", and "trapping".
We note that the district court did not forbid Lepping from personally trapping; the court only prohibited him from hunting and fishing. Nevertheless, given Lepping's history of violations, the court could reasonably forbid him from accompanying others into the field for this purpose.
Conclusion
The judgement of the district court is AFFIRMED.