Opinion
Court of Appeals No. A-12761 No. 6845
12-26-2019
JACK RUEBEN SHAW, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 3AN-05-07661 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
In 2006, Jack Rueben Shaw pleaded guilty to attempted first-degree sexual abuse of a minor (attempted sexual penetration of a child by a parent). He was sentenced to 10 years' imprisonment with 5 years suspended, and a 5-year term of probation.
AS 11.41.434(a)(2) & AS 11.31.100.
One of Shaw's probation conditions required him to successfully complete sex offender treatment. Successful treatment, however, has thus far eluded Shaw. Before the instant case, Shaw's probation had been revoked three times for failing to successfully complete sex offender treatment.
Shaw appealed two of the three revocations. See Shaw v. State, 2018 WL 6119961 (Nov. 21, 2018) (unpublished); Shaw v. State, 2018 WL 2175925 (May 9, 2018) (unpublished).
The present case arises from the State's fourth petition to revoke Shaw's probation for failing to successfully complete sex offender treatment. Shaw contested this allegation, and the superior court held a hearing to adjudicate this issue. The court found that Shaw had violated his probation and extended his probation by 12 months.
Shaw now appeals, raising three claims regarding the adjudication and disposition of the petition to revoke his probation. For the reasons explained in this opinion, we conclude that none of Shaw's claims have merit.
Proceedings on the fourth petition to revoke Shaw's probation
At the hearing on the State's fourth petition to revoke Shaw's probation, Shaw's probation officer, Katelyn Perry, testified that two different sex offender treatment providers had concluded that Shaw was unamenable to treatment, and that there were no other available providers who would take him. Perry recommended that the court terminate Shaw's probation and impose all of his remaining time to serve (approximately 3 years and 11 months).
But Shaw's attorney presented evidence that Shaw's difficulty with sex offender treatment stemmed from an underlying and untreated personality disorder. Moreen Fried, a licensed clinical social worker, testified that Shaw needed cognitive behavioral therapy to address the "core pieces" of this personality disorder, because this disorder was interfering with Shaw's ability to engage in sex offender treatment. Fried further asserted that Shaw would not get the kind of treatment he needed if he was sent to jail. Shaw also testified at the hearing, and he indicated that he was willing to be treated by a psychologist for this personality disorder.
The superior court found that Shaw had violated the terms of his probation by failing to complete sex offender treatment. However, based on Fried's testimony, the court decided not to impose additional jail time; instead, the court extended Shaw's probation by 12 months to give him an opportunity to seek additional treatment. The court again ordered Shaw to complete sex offender treatment, but the court also ordered Shaw to "get someone to take a look at" Fried's personality disorder diagnosis. The court told Shaw that if he received treatment for this alleged personality disorder, and if this treatment alleviated the State's and the probation officer's concerns, then the court would readdress the requirement of further sex offender treatment and the length of Shaw's probation.
Why we affirm the superior court's decision
Shaw first contends that the treatment provider who concluded that Shaw should be terminated from further sex offender treatment was biased against him. Because of this purported bias, Shaw argues that it was unreasonable for his probation officer to send him to this provider's treatment program, and that it was also unreasonable for the superior court to credit this treatment provider's evaluation.
But in the superior court, Shaw's attorney did not challenge his probation officer's decision to send Shaw to this sex offender treatment provider. Thus, Shaw's claim is not preserved for appeal.
See Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988) (holding that issues and arguments not raised in the lower court are considered waived on appeal absent plain error); see also John v. State, 35 P.3d 53, 63 (Alaska App. 2001) (declining to address the appellant's evidentiary claim where the record reflected no lower court ruling on it).
In any event, questions of bias, reasonableness, and how much weight to give to particular evidence were all matters entrusted to the superior court (sitting as the finder of fact). We find no error.
Shaw's second contention is that, because he was unaware of his alleged personality disorder, he never "willfully" failed to complete his sex offender treatment, and it was therefore a denial of due process for the superior court to find that Shaw had violated his probation by failing to successfully complete this treatment.
Shaw did not raise this claim in the superior court, so it is not preserved for appeal. But in any event, the superior court was not required to find that Shaw's conduct was "willful" when the court concluded that Shaw violated the condition of successfully completing sex offender treatment. As we explained in Charles v. State, "the existence of 'good cause' to revoke a defendant's probation . . . does not necessarily depend on the willfulness of the violation." The critical consideration in a probation revocation proceeding is whether or not the aims of probation can still be served. The willfulness of a defendant's actions is relevant to that determination, but it is not necessarily dispositive.
See Wettanen, 749 P.2d at 364; see also John, 35 P.3d at 63.
Charles v. State, 436 P.3d 1084, 1085 (Alaska App. 2018).
See Silas v. State, 425 P.3d 197, 201 (Alaska App. 2018) (noting that the involuntari-ness of a probationer's discharge from a treatment program is not, standing alone, a defense to the allegation that he violated his treatment requirement, and that the real question is whether, given the reasons for the probationer's termination from the program, the court could reasonably conclude that the aims of probation could not be achieved and that the continuation of probationary status would be at odds with the need to protect society and society's interest in rehabilitation); see also Charles, 436 P.3d at 1085 (holding that the existence of "good cause" for revocation of a defendant's probation depends on "the nature of the probation condition, the applicable mental state for the violation, and the significance of the violation with regard to the defendant's amenability to continued probation supervision").
See Charles, 436 P.3d at 1085; see also Silas, 425 P.3d at 201 (acknowledging that the probationer's fault, or lack thereof, is a relevant factor in the court's assessment).
Here, the superior court found that the aims of Shaw's probation — rehabilitation and protection of the public — were being defeated by Shaw's failure to successfully complete sex offender treatment. The record supports the court's conclusion and the court's decision to extend Shaw's probation.
Finally, Shaw asserts that the record of the proceedings in the superior court fails to show that the court considered the Chaney sentencing criteria when it extended Shaw's probation by 12 months. Based on this assertion, Shaw argues that we must vacate the 12-month extension of his probation.
But a sentencing judge is not required to explicitly recite the goals of sentencing as long as it is clear from the record that the judge has considered those goals. Here, the record shows that the judge actively considered the Chaney criteria — especially the goals of rehabilitation and protection of the public.
Smith v. State, 691 P.2d 293, 295 (Alaska App. 1984) ("While the sentencing goals of Chaney must be considered in each case, it is only in instances where the court's remarks afford no insight [in]to its reasons for sentencing or where they affirmatively indicate that its sentence was not properly grounded on the Chaney goals that failure to address the goals expressly will require a remand.").
As we have explained, the judge rejected the probation officer's recommendation of terminating Shaw's probation and imposing all of his remaining jail sentence. Instead, the judge chose to follow Moreen Fried's recommendation of returning Shaw to probation and ordering him to engage in further treatment. Fried told the judge that Shaw should not be sent back to prison because Shaw could not get the treatment he needed if he was in prison. According to Fried, the judge should extend Shaw's period of probation because further probation was Shaw's last chance to get the treatment that might reduce his risk of re-offending. The judge's decision to adopt this approach shows that the judge actively considered the Chaney sentencing criteria.
Conclusion
The judgment of the superior court is AFFIRMED.