Opinion
A-13653
08-31-2022
NATHAN D. SOLANO, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Seneca Theno Freitag, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District Trial Court No. 1JU-07-01449 CR, Juneau, Amy G. Mead, Judge.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
In 2008, Nathan D. Solano pleaded guilty to two counts of second-degree sexual abuse of a minor. He received a composite sentence of 20 years with 5 years suspended, and a 10-year term of probation. After serving his active term of imprisonment, Solano was released to felony probation in 2017. Among other things, Solano's probation conditions prohibited him from possessing "pornographic or erotic material involving minors" and required him to submit to searches of his person and property for drugs, alcohol, and child pornography.
AS 11.41.436(a).
In early 2020, Solano's probation officer discovered that Solano had accessed a "nudist lifestyle" website containing images of naked children, so the officer seized Solano's iPhone and iPad. Solano initially refused to provide the passcodes to the devices (although he later did so through his attorney at his arraignment). The probation officer filed a petition to revoke Solano's probation, alleging three violations: two for his refusal to provide the passcodes so that his probation officer could search his electronic devices (one violation for each device) and one for possessing "pornographic or erotic material involving minors."
This information came from Covenant Eyes, a monitoring program that Solano had voluntarily agreed to install on his electronic devices so that his probation officer could monitor his internet use - although his original probation conditions placed no direct limitations on his internet use.
At Solano's adjudication, the superior court ruled that the probation condition prohibiting Solano from possessing "pornographic or erotic material involving minors" was unconstitutionally vague. Nonetheless, the court found that the State had proven the remaining two allegations. At disposition, the court revoked Solano's probation, ordered him to serve 4 months of his suspended sentence, modified the condition it had found unconstitutional, and added five new conditions.
See Diorec v. State, 295 P.3d 409, 417-18 (Alaska App. 2013) (concluding that condition prohibiting probationer from possessing "sexually explicit material," including "pornography," was vague and encouraging sentencing court to revise condition using language from AS 11.41.455(a)).
Solano now appeals.
As an initial matter, Solano challenges the court's decision to impose any new probation conditions. Under AS 12.55.090(b), a court may modify probation conditions to a probationer's detriment, even absent a formal probation violation, if the State establishes a "significant change of circumstances" - i.e., "post-sentencing conduct that establishes a substantial reason to conclude that the current conditions of probation are not adequately ensuring the defendant's rehabilitation or adequately protecting the public."
Edwards v. State, 34 P.3d 962, 969 (Alaska App. 2001).
According to Solano, the State failed to meet this standard. He contends that his two violations - refusing to provide passcodes to his devices until his arraignment-were minor and "technical." He further notes that the images he viewed did not cause the court to find a violation, and asserts that his conduct was not "alarming" enough to jeopardize the public or his rehabilitation.
But the court expressly found that Solano's violations were neither technical nor minor and that his web activity was not "innocuous." More specifically, the court found that Solano's explanation that he refused to turn over the passcodes only "because a prior attorney told him that he didn't need to" was not credible and that his refusal "to take ownership of the acts he committed" was a "running theme." As for Solano's internet activity, the court rejected his explanation that he accessed the website only because he was inadvertently redirected there. The court determined that the website's "stated purpose to promote a nudist lifestyle is [nothing] more than a pretext," and found that monitoring software on Solano's devices showed that he "very regularly accessed these types of websites." On the whole, the court found that Solano's behavior was "extremely concerning," and that his probation conditions needed to be "shore[d] up." The record supports these findings, which in turn support the court's decision to modify Solano's probation conditions.
Solano also challenges three of the new conditions imposed by the court.
One of the challenged conditions prohibits Solano from accessing the internet absent prior permission from his probation officer. Solano contends that the court erred in failing to apply special scrutiny to this condition and in making his internet access contingent on his probation officer's discretion. The State concedes error, noting that the court's remarks reflect an intent to impose a condition requiring monitoring rather than pre-approval of internet use and agreeing that the court should more narrowly tailor any internet restriction. After independently reviewing the record, we conclude that the State's concession is well-founded, and we agree that the superior court should re-evaluate this condition in light of its prior remarks and our recent decision in Dalton v. State.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error in a criminal appeal "is supported by the record on appeal and has legal foundation").
Dalton v. State, 477 P.3d 650, 652-56 (Alaska App. 2020) (holding that, while there was a factual nexus justifying a restriction on the defendant's internet access, "a complete internet ban, subject only to the unconstrained discretion of a probation officer, unduly restricted] [the defendant's] liberty").
Solano also narrowly challenges two conditions that require him to submit to a new sex offender evaluation, follow all recommendations (to "include regular periodic polygraph examinations, psychological testing, as well as other methods of ongoing assessment"), and sign a release of information authorizing the exchange of information between the probation office and his treatment providers, including "physiological assessment technicians." According to Solano, these conditions potentially subject him to plethysmograph testing, for which the court was required to apply special scrutiny. Although the conditions make no express mention of plethysmograph assessments, and Solano did not previously object to the conditions on this basis, the State agrees that the conditions are ambiguous and should be remanded to give the superior court the opportunity to apply special scrutiny.
See Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021) (recognizing that plethysmograph testing is sufficiently invasive to require application of special scrutiny and questioning "whether such an intrusive requirement could ever satisfy special scrutiny").
Accordingly, we VACATE Probation Conditions Nos. 30,31, and 32, and we remand this case for further proceedings consistent with this order. In all other respects, we AFFIRM the judgment of the superior court.