Opinion
A-14350 0391
10-16-2024
JAKE SHELIKOFF, Appellant, v. STATE OF ALASKA, Appellee.
Michael Schwaiger, Assistant Public Advocate, and James Stinson, Public Advocate, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Second Judicial District, Nome, Trial Court Nos. 2UT-23-00019 CR & 2UT-23-00020 CR Romano DiBenedetto, Judge.
Michael Schwaiger, Assistant Public Advocate, and James Stinson, Public Advocate, 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 Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Pursuant to a global plea agreement resolving three criminal cases, Jake Shelikoff pleaded guilty to first-degree hindering prosecution and official misconduct, and the State dismissed the remaining criminal charges. Shelikoff agreed to a sentence of 24 months with 23 months suspended on the first-degree hindering prosecution conviction and 90 days with 90 days suspended on the official misconduct conviction. Shelikoff also agreed to a 3-year term of probation under the conditions that he commit no new jailable offenses and refrain from working as a law enforcement officer or in any law enforcement-related profession. All other conditions of probation were left open to the sentencing court's discretion.
AS 11.56.770(b)(3) and AS 11.56.850(a)(2), respectively.
Over Shelikoff's objection, the court imposed Special Probation Condition No. 6, which requires Shelikoff to submit, at the direction of his probation officer, to warrantless searches of his person, property, residence, and any vehicle in which he is found for the presence of weapons. Shelikoff now appeals the imposition of this condition, arguing that there is no direct relationship between the condition and the offenses for which he was convicted.
The court limited the search condition so that a search could only be done at the direction of the probation officer when the probation officer was personally meeting with Shelikoff.
See State v. Ranstead, 421 P.3d 15, 20 (Alaska 2018) (stating that "a condition that allows a warrantless search must bear 'a direct relationship' to the nature of the defendant's conviction" (quoting Roman v. State, 570 P.2d 1235, 1242-43 (Alaska 1977))); State v. Thomas, 133 P.3d 684, 685 (Alaska App. 2005) (explaining that the "direct relationship" required to support a warrantless search condition must be either to the particular crime for which the defendant is being sentenced or to the underlying causes of the defendant's criminal behavior, as reflected in the defendant's history).
The State concedes that the record does not support the imposition of this warrantless search condition and agrees that it should be vacated. We have reviewed the record, and we conclude that the State's concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring the appellate court to independently assess whether the State's concession of error in a criminal case "is supported by the record on appeal and has legal foundation").
As the State acknowledges, there is nothing in the record to indicate that Shelikoff, who had no prior convictions, has illegally used or possessed weapons or that he used or possessed a weapon in the commission of the current offenses. The State also acknowledges that general concerns regarding probation officer safety are not a sufficient basis for imposing a warrantless weapons search condition.
See Dayton v. State, 120 P.3d 1073, 1084-85 (Alaska App. 2005) (vacating probation condition authorizing warrantless search for weapons when there was no indication that the defendant had used or possessed weapons in violation of the law or had used or carried a weapon during the commission of a crime); Boles v. State, 210 P.3d 454, 455 (Alaska App. 2009) (same).
See Horton v. State, 2022 WL 855656, at *5-6 (Alaska App. Mar. 23, 2022) (unpublished).
Accordingly, we VACATE Special Probation Condition No. 6, and we direct the superior court to strike this probation condition from the judgment.