Opinion
Court of Appeals No. A-11797 No. 6381
09-21-2016
JAMES PATRICK TANNER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kevin Boots, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. Trial Court No. 1KE-96-656 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Kevin Boots, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In 1997, James Patrick Tanner pleaded guilty to two counts of second-degree sexual abuse of a minor. He received a composite sentence of 20 years' imprisonment with 10 years suspended, and was placed on probation for 10 years following his release from prison. As a condition of this probation, Tanner was required to "participate in and comply with an approved sexual offender treatment program as directed by the probation officer and therapist."
Between Tanner's release from prison and the middle of 2013, the superior court revoked Tanner's probation three times for failing to comply with sex offender treatment programs: once in 2010, again in 2011, and a third time — the present case — in 2013. For this third violation of probation, the superior court sentenced Tanner to serve 1 year of his previously suspended jail time.
Tanner now appeals the superior court's decision on three grounds. First, Tanner argues that the evidence presented to the superior court was not sufficient to establish that he willfully failed to comply with his sex offender treatment program. Second, Tanner asserts that he was terminated from the treatment program in part because of his use of medical marijuana, and that this was unfair because he never received reasonable notice that his use of medical marijuana violated the rules of the program. Finally, Tanner argues (in the alternative) that his sentence for violating his probation — 1 additional year to serve — is excessive.
Before we turn to the merits of Tanner's first claim (the sufficiency of the evidence to support the superior court's revocation of Tanner's probation), we need to address the question of the proper standard of review.
In their briefs to this Court, both parties assert that the applicable standard of review is the "clearly erroneous" standard that applies to an appellate court's review of a trial court's findings of fact. But we believe that the true standard of review may be the more deferential "substantial evidence" standard that applies to appellate review of verdicts in judge-tried cases.
We acknowledge that in Powell v. State, 12 P.3d 1187, 1189 (Alaska App. 2000), this Court declared in dictum that "[w]e review a trial court's factual findings regarding a probation revocation for clear error." (This statement was dictum because the three issues presented for decision in Powell were resolved as matters of law, not questions of fact.) And in Andrew v. State, 835 P.2d 1251, 1256 (Alaska App. 1992), this Court upheld the findings of fact that a judge made at the sentencing phase of a probation revocation hearing because we concluded that "[those] factual findings [were] not clearly erroneous".
But at the adjudication phase of a probation revocation hearing, the decision that the judge must make is closely analogous to the decision that a judge must make at a bench trial. In the probation revocation proceeding, the judge must evaluate whether the evidence, taken as a whole, proves that the defendant violated the conditions of probation specified in the government's petition to revoke probation. This is essentially what a judge must do at a bench trial: evaluate the evidence to decide whether the government has proved the elements of the crime(s) charged against the defendant.
When an appellate court reviews the verdict rendered by a judge at a bench trial, we do not evaluate each of the judge's separate findings of fact under the "clearly erroneous" standard — a standard that allows an appellate court to reject a finding if the appellate court is left "with a definite and firm conviction that a mistake has been made, although there may be evidence to support the lower court's finding." Rather, we evaluate the judge's verdict under the more deferential "substantial evidence" test — a standard that requires an appellate court to affirm the verdict if the record contains evidence "[that] a reasonable mind might accept as adequate to support the challenged conclusion." Under this standard of review, "[w]e do not re-weigh the evidence or choose between competing inferences; we only determine whether evidence exists to support the judge's conclusion."
Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).
Y.J. v. State, 130 P.3d 954, 957 (Alaska App. 2006).
Ibid. See also Shayen v. State, 373 P.3d 532, 535 (Alaska App. 2015) (When a defendant challenges the sufficiency of the evidence to support a verdict in a bench trial, "the question is whether the verdict is supported by such relevant evidence as is adequate to support a conclusion by a reasonable mind ... when all inferences are resolved in favor of the court's verdict.").
Although we note this issue, we need not resolve it in Tanner's case, because the evidence is sufficient to support the superior court's decision even under the less deferential "clearly erroneous" standard of review.
Turning now to the merits of Tanner's sufficiency of the evidence claim, Tanner asserts that the evidence did not prove that he willfully violated the terms of his probation. Tanner contends that the evidence merely showed that his failures to participate in the treatment program, and his several failures to comply with its requirements, were the result of "mistake or inadvertence or good-faith but feckless efforts" (quoting the language of Hutchison v. State, 27 P.3d 774, 777 (Alaska App. 2001)).
But it was up to the superior court, sitting as the finder of fact, to evaluate whether Tanner's failure to comply with the treatment program was purposeful. Based on the evidence presented, the superior court found that Tanner "in effect ... blew off most of [his] treatment" because he had "other stuff" that he preferred to do.
This finding — that Tanner willfully failed to comply — was a reasonable inference from the evidence presented, when that evidence is viewed in the light most favorable to the superior court's verdict. The evidence was therefore sufficient to support the superior court's ruling that Tanner had willfully violated his probation.
Because the superior court found that Tanner acted willfully, and because the evidence is sufficient to support that finding, we will not address the State's contention that Alaska law imposes strict liability on probationers who violate the terms of their probation.
In a separate attack on the superior court's ruling, Tanner asserts that he was terminated from the sex offender treatment program in part because of his use of medical marijuana, and he contends that this was unfair because he never received reasonable notice that his use of medical marijuana violated the rules of the program.
It is true that when the superior court found Tanner in violation of his probation, the court discussed Tanner's use of medical marijuana. But the point of the court's remarks was not that Tanner was using marijuana; rather, the court focused on the fact that Tanner skipped a treatment session (unannounced) to attend a doctor's appointment to obtain a prescription for medical marijuana — an appointment that Tanner could have scheduled for another time that did not conflict with his treatment. In other words, the court viewed this episode as further proof that Tanner was not making serious efforts to pursue treatment.
Tanner's remaining argument is that his sentence of 1 year to serve is excessive, in that the superior court failed to properly analyze his sentence in terms of the "Chaney" criteria — i.e., the sentencing criteria codified in AS 12.55.005.
Alaska's sentencing criteria were first announced by our supreme court in State v. Chaney, 477 P.2d 441 (Alaska 1970).
But contrary to Tanner's argument, the record shows that the superior court affirmatively considered its sentencing decision in light of the Chaney criteria. Here is what the court said:
The Court: When I analyze this [case], I do obviously go to the Chaney criteria. I look at the underlying convictions — which are two convictions for ... second-degree sexual abuse of a minor. These are extremely serious offenses. The [original] sentence on each was 10 [years], five suspended. The time [on each count] was consecutive to one another, leaving a long ... amount of suspended time.
The reason that you [Mr. Tanner] didn't receive all [of that] time was that the court who sentenced you was hopeful that you would be rehabilitated. The most important part of your rehabilitation, in order to protect the community, is for you to get sex offender treatment. ... [You] being untreated is a danger to this community or any other community.
... I find that you blew off most of your treatment. And again, I think it's serious. What I'm going to do is I'm going to impose one year. I think that's moderate under the circumstances.
Although the superior court did not expressly address each of the sentencing criteria individually, it is clear from the court's remarks that the court focused on Tanner's failure to pursue rehabilitative efforts in a meaningful way, and the resulting danger that Tanner, because he was untreated, would re-offend. Thus, the court adhered to its duty to analyze Tanner's sentence in light of the criteria found in AS 12.55.005.
We conclude that the superior court's decision to impose 1 year of Tanner's suspended jail time is not clearly mistaken.
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken). --------
Conclusion
The judgement of the superior court is AFFIRMED.