Opinion
A-13022
07-28-2021
EDWARD GRANT MOSES, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Bethel, Nathaniel Peters, Judge. Trial Court No. 4BE-13-00828 CR
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Donald Soderstrom, 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.
MEMORANDUM OPINION
WOLLENBERG. JUDGE
Edward Grant Moses shot and killed his two-year-old son at the home of his ex-girlfriend (the boy's mother) and disposed of his son's body, which was found on the beach nearby. For this conduct, a grand jury indicted Moses on one count of first- degree murder and one count of tampering with physical evidence. Moses was also indicted on three counts of first-degree robbery and one count of second-degree theft for ordering several individuals at gunpoint to exit the house and leave behind their cell phones before he shot his son. In addition, he was charged with one count of cruelty to animals for knowingly killing a dog, with the intent to intimidate, threaten, or terrorize another person. At the time of these events, Moses was twenty-four years old, and he was on probation in a prior case in which he was convicted of third-degree assault, second-degree misconduct involving a weapon, and third-degree theft.
AS 11.41.100(a)(1)(A) and AS 11.56.610(a)(1), respectively.
AS 11.41.500(a)(1) and AS 11.46.130(a)(1), respectively.
AS 11.61.140(a)(5).
Pursuant to a plea agreement with the State, Moses pleaded guilty to one count of second-degree murder and one count of first-degree robbery and admitted to violating his probation in his prior case. The remaining counts were dismissed. In accordance with the plea agreement, Moses was sentenced to 99 years with 39 years suspended (60 years to serve) for the murder conviction, 15 years flat for the robbery conviction (with 2 years running consecutively to the murder sentence), and the remaining suspended time in his prior case (about 3 years and 75 days) - a total of approximately 65 years and 75 days to serve. The agreement called for a probation term of 10 years, with probation conditions to be determined by the court.
AS 11.41.110(a)(2).
One of the probation conditions recommended in the presentence report required Moses to "actively participate in and successfully complete all substance abuse programs and treatment recommended by the [substance abuse] evaluator, including inpatient and/or residential treatment up to 2 years to be followed by a continuing care / aftercare component."
Moses objected to the two-year cap on residential treatment, but stated that he would not object to a condition requiring residential treatment for up to three months. The prosecutor acknowledged that the two-year limit was longer than the typical recommendation and that, as a practical matter, the longest residential treatment program he was aware of was a one-year program. But the prosecutor argued that it was difficult to know what treatment options would be available when Moses was ultimately released and that Moses's actions while intoxicated were truly horrific, suggesting that a longer period of substance abuse treatment could be necessary.
The superior court ordered the condition as recommended, citing the difficulties in predicting what treatment would be available in the future and finding that Moses was in need of long-term residential treatment.
On appeal, Moses renews his argument that the two-year allowance for inpatient or residential treatment is excessive. He argues that this portion of the condition implicates his liberty interests and must be subjected to special scrutiny, and he contends that there were less restrictive alternatives available to the court.
See Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014).
Although Moses objected in the trial court to the proposed length of the residential treatment term, he did not ask the trial court to apply special scrutiny when determining the length of the permitted term. We therefore review this constitutional claim for plain error.
State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).
We have previously held that residential treatment can approximate incarceration for purposes of granting credit against a defendant's term of imprisonment.The actual term of residential treatment should therefore be no longer than is necessary to meet the goals of sentencing.
See Medina v. State, 418 P.3d 861, 862-63 (Alaska App. 2018) (discussing the law governing the award of credit against a sentence for time spent in residential treatment).
See Pears v. State, 698 P.2d 1198, 1205 (Alaska 1985) (recognizing that a "defendant's liberty should be restrained only to the minimum extent necessary to achieve the objectives of sentencing").
But the length of any maximum permissible residential treatment term - i.e., the cap that a court is required to impose at the time of sentencing on any future residential treatment - is necessarily speculative: it is designed to accommodate a possible future recommendation for residential treatment that is often unknown at the time of sentencing. That is particularly true in this case, where Moses has a decades-long sentence; the length of any post-incarceration residential treatment will necessarily depend on Moses's assessment years from now.
See AS 12.55.100(c) (providing that a program of inpatient treatment must be authorized, and may not exceed a maximum term of inpatient treatment specified, in the judgment); Christensen v. State, 844 P.2d 557, 558-59 (Alaska App. 1993) (holding that a probation condition requiring residential treatment if recommended by a substance abuse evaluation was illegal because it failed to set a maximum period for such treatment).
We are therefore not convinced that we should apply special scrutiny to evaluate the maximum permissible term of residential treatment, particularly since we have repeatedly acknowledged-as to terms of imprisonment-that reasonable judges can differ on the term required in any given case. We therefore review this term for an abuse of discretion.
See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).
See, e.g., Allen v. Anchorage, 168 P.3d 890, 895 (Alaska App. 2007) (reviewing imposition of a probation condition for abuse of discretion).
While the outer limit on residential treatment in this case is far outside what we would normally expect to see, we conclude that given the extreme and unusual facts of this case, the trial court's determination that Moses needed long-term residential substance abuse treatment, and the difficulty of predicting what programs will be available decades from now, we cannot find that the court's decision to permit some leeway to a future assessor was an abuse of discretion.
Moses has repeatedly engaged in extreme and violent conduct while intoxicated in this and prior cases. In his prior case, Moses (along with his co-defendant) terrorized the community of Tununak while he was intoxicated - firing a shotgun in multiple places, pointing the gun toward at least two people, and ordering everyone out of a store at gunpoint before stealing store property. In the month prior to the events in this case, Moses spoke about wanting to kill his ex-girlfriend and her new boyfriend; the boyfriend reported that, on one occasion, when Moses was intoxicated, he told them that he was "so close to barging in and shooting both of you." In this case, Moses acknowledged that he was "very drunk" when he shot his son in the head. And after the events in this case, Moses's father told the troopers that Moses woke him, attacked him with a nail, and confessed to killing his son. Moses's father hoped that it was only "drunk talk." Moses stated that he was "pretending to kill" his father in the hope that his father would kill him in self-defense.
We presume that when Moses is ultimately assessed for treatment, the assessor will not recommend any period of residential treatment longer than is actually necessary to meet Moses's treatment needs. If Moses wishes to contest the actual recommended term, he may seek judicial review at that time.
See, e.g., Giddings v. State, 2018 WL 3301624, at *4 (Alaska App. July 5, 2018) (unpublished) (noting that the defendant could seek judicial review if he objected to a specific treatment requirement in the future).
For these reasons, the judgment of the superior court is AFFIRMED.