Opinion
A-13590
04-27-2022
ALEC MCGLASHAN III, Appellant, v. STATE OF ALASKA, Appellee.
Amanda J. Harber, 49th State Law, LLC, Soldotna, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District, Trial Court No. 3UN-15-00171 CR Unalaska, Herman Walker Jr., Judge.
Amanda J. Harber, 49th State Law, LLC, Soldotna, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Alec McGlashan III pleaded guilty, pursuant to a plea agreement, to one count of attempted second-degree sexual assault after he violently raped his niece while in an alleged alcoholic blackout. Pursuant to the agreement, the trial court imposed a sentence of 18 years with 5 years suspended (13 years to serve) and 10 years' probation.The trial court also imposed a number of probation conditions over McGlashan's objection. McGlashan now appeals, challenging the imposition of these probation conditions. McGlashan also argues that the trial court erred in failing to make certain changes to the presentence report that the parties had agreed on.
AS 11.41.420(a)(1) & AS 11.31.100.
As part of the plea agreement, McGlashan stipulated to an aggravating factor under AS 12.55.155(c)(10) (defendant's conduct was "among the most serious conduct included in the definition of the offense").
On appeal, the State concedes that remand is appropriate so that the trial court can make the agreed-upon changes to the presentence report. We conclude that this concession is well-founded, and we accordingly direct the trial court to make these changes to the presentence report on remand.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
The State also concedes that the prohibition against medical marijuana in Special Probation Condition No. 8 should be reconsidered on remand. We conclude that this concession is also well-founded. In State v. Glasgow, we recognized that a probation condition prohibiting the medical use of marijuana infringes on a probationer's constitutional right to privacy in making independent medical decisions in consultation with a physician. We therefore held that a court must apply special scrutiny before imposing such a condition. Special scrutiny requires the court to find that the condition is narrowly tailored to avoid unnecessary interference with the constitutional right at issue. It also requires the court to affirmatively consider and have good reason for rejecting any less restrictive alternatives. That level of analysis did not occur here. We therefore vacate this portion of Special Probation Condition No. 8 and remand it for reconsideration by the trial court.
See id.
Glasgow v. State, 355 P.3d 597, 600 (Alaska App. 2015).
Id.; see also State v. Nelson, 195 P.3d 826, 834 (Mont. 2008) (reversing condition limiting medical marijuana use because it denied probationer the "right and privilege to use a lawful medical treatment"); State v. Rhamy, 431 P.3d 103 (Or. App. 2018) (per curiam) (accepting state's concession that trial court erred in imposing unqualified prohibition on defendant's ability to participate in medical marijuana program in the absence of any justifying findings); People v. Tilehkooh, 113 Cal.App.4th 1433, 1445-47, 7 Cal.Rptr.3d 226, 235-36 (Cal.App. 2003) (recognizing probationer had due process right to present medical defense to probation revocation based on marijuana use). But see People v. Watkins, 282 P.3d 500, 504 (Colo.App. 2012) (holding that court erred in allowing probationer to use medical marijuana because possession and use of marijuana violates federal law).
Glasgow, 355 P.3d at 600.
Id.
At one point, the superior court stated that there was no "less restrictive alternative" to Special Probation Condition No. 8. But the court did not explain how it came to that conclusion; nor did the court specifically address the prohibition against medical marijuana.
The State argues that the remainder of Special Probation Condition No. 8 and the other challenged probation conditions were properly imposed. We agree.
Special Probation Condition No. 8 prohibits the possession and use of illegal drugs. It also requires McGlashan to submit to testing and warrantless searches for illegal drugs. Special Probation Condition No. 9 further prohibits the possession or use of items "intended to conceal alcohol or controlled substance use or to subvert a bodily fluid testing process" and authorizes warrantless searches for such items.
At sentencing, McGlashan denied having any problem with illegal drugs, and he objected to these probation conditions on that basis. He did not object to the alcohol portion of the conditions.
The trial court overruled this objection based primarily on the severity of McGlashan's alcohol use and the extremely violent crime it had produced. The court reasoned that "[i]f he's abusing alcohol to such an extent that he's committing these kinds of crimes," then it is appropriate to monitor him on probation for any illegal drug use.
The record confirms the trial court's findings regarding the extreme nature of McGlashan's alcohol use. According to the presentence report, McGlashan dragged his niece from room to room, head butted her, strangled her to the point that she lost consciousness, bit her breasts, and slammed her head into the floor. He ultimately penetrated both her vagina and anus with his penis without her consent. When contacted by law enforcement, McGlashan asserted that he experienced an alcoholic blackout while in his niece's home, and he claimed to have no memory of the violent acts.
The record also suggests that McGlashan has problems with substances other than alcohol. According to the presentence report, McGlashan smoked marijuana immediately after the violent rape was over and before he left his niece's house.
Given this record and the specific facts of this case, we conclude that the trial court could reasonably be concerned about McGlashan's substance use and conclude that additional testing and search provisions were justified to aid in McGlashan's rehabilitation and to protect the public. Accordingly, we affirm the imposition of Special Probation Conditions Nos. 8 and 9 as within the trial court's discretion.
See State v. Thomas, 133 P.3d 684, 686 (Alaska App. 2005) (upholding probation condition authorizing warrantless searches for illegal drugs where criminal history indicated prior illegal drug use).
See Allen v. Anchorage, 168 P.3d 890, 895 (Alaska App. 2007) ("We review the court's imposition of a probation condition for abuse of discretion." (citations omitted)).
We likewise find no abuse of discretion in the trial court's imposition of General Probation Condition No. 5, which prohibits McGlashan from possessing certain weapons. McGlashan objected to this condition, arguing that there was no nexus to either his rehabilitation or the protection of the public because his crime did not involve the use of a weapon. The trial court overruled the objection, finding that "this is an important probation condition to protect the community," given the extreme violence of McGlashan's crime.
The probation condition provides: "At no time have under your control a concealed weapon, a firearm, or a switchblade or gravity knife."
We conclude that, given the extreme violence with which McGlashan acted, the trial court could reasonably conclude that a probation condition prohibiting McGlashan from possessing certain weapons was reasonably related to the probation goal of protecting the public. We therefore affirm General Probation Condition No. 5.
See Barry v. State, 925 P.2d 255, 258 (Alaska App. 1996) (affirming imposition of probation condition that prohibited defendant from possessing firearms as "reasonably related to the protection of the public" in drunk driving case where defendant "became intoxicated and demonstrated criminal negligence with regard to the risk that his conduct might kill someone").
Accordingly, we REMAND this case to the superior court to reconsider the prohibition against medical marijuana and to correct the agreed-upon changes to the presentence report. We otherwise AFFIRM the judgment of the superior court.