Opinion
Court of Appeals No. A-10360.
January 20, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 1KE-02-1634 CR 1KE-05-0580 CR.
Tim Dooley, Law Office of Tim Dooley, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
The conditions of Shelly L. Vollmann's felony probation contained the following general condition: "Do not knowingly associate with a person who is on probation or parole or a person who has a record of a felony conviction unless prior written permission to do so has been granted by a probation officer of the Department of Corrections."
Vollmann filed a motion to modify her probation conditions to allow her to marry Michael Brady, a convicted felon. Vollmann stated that she met Brady at a halfway house and that they wanted to spend their lives together. Vollmann argued that the State's general interest in prohibiting contact between felons did not outweigh her fundamental right to marry. Vollmann did not cite any case law supporting her argument.
In response, the State conceded that this court has held that "A condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association, and . . . must be subjected to special scrutiny." But the State noted that cases involving fiancés or girlfriends might be treated differently than cases where the probationer is already in a bona fide marital relationship. The State quoted our suggested standard for testing limitations on marital associations: "In any type of case, it is conceivable that such a limitation [on marriage] might be justified by case-specific circumstances demonstrating actual necessity and the lack of less restrictive alternatives."
Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995).
See id. at 681 n. 14 (citing State v. Davis, 687 P.2d 998 (Idaho App. 1984)).
Id. at 680-81.
The State then listed case-specific circumstances justifying the restriction on the association between Vollmann and Brady, based on the report of Vollmann's supervising probation officer. The probation officer stated that Vollmann had a documented history of mental illness and drug abuse. These challenges have led her to be repeatedly victimized in relationships with convicted felons, which has in turn led to repeated relapses.
Of particular concern was the fact that the probation officer had previously helped Vollmann obtain an apartment where she began using drugs with her neighbor, who was also a friend of Brady's. Vollmann gave up the apartment and returned to custody so that Brady could move into the apartment upon his release. But when Brady was released, he listed a different residential address and a different fiancé. Both Vollmann and Brady were just coming out of violation status for serious drug infractions, and Brady was facing a possible arrest warrant based on his failure to report to his probation officer.
Vollmann did not file any reply to the State's response. Based on the unrefuted statements of Vollmann's probation officer, the court denied Vollmann's motion to modify her probation condition, concluding that "[a]ssociation with Mr. Brady is likely to undermine the State's effort to rehabilitate Ms. Vollmann."
Vollmann has now filed an appeal from the trial court's decision. We conclude that the judge's decision denying Vollmann's request for contact with Brady was "justified by case-specific circumstances demonstrating actual necessity and the lack of less restrictive alternatives" as set forth above.
After Vollmann filed her appeal, she filed a motion for a stay of the trial court's order. The motion for stay was accompanied by a more extensive argument concerning the right to marry, which included case analysis. Vollmann did not contest the statements from her probation officer, but she argued that there were viable alternatives, consistent with her rehabilitation, that would allow her to marry Brady. In response, the State took the position that Vollman's motion for a "stay" was in fact a late-filed motion for reconsideration of the superior court's order denying Vollmann's request for a change in her conditions of probation. The State did not respond to the substantive arguments presented in Vollman's motion.
The superior court issued a written order denying Vollmann's motion, but the court did not address any of the substantive arguments presented in the motion. Instead, the court merely noted that "[t]he arguments regarding [Vollmann's constitutional] right to marry were not previously before the court." In other words, it appears that the superior court adopted the State's position that Vollmann's motion was, indeed, a late-filed motion for reconsideration.
In this appeal, Vollmann repeats the constitutional arguments that she presented in her motion for a stay. But as we explained in the preceding paragraph, the superior court never issued a ruling on the merits of these constitutional arguments. Instead, the superior court appears to have treated Vollmann's motion as a motion for reconsideration, and then declined to address the merits of Vollmann's constitutional arguments because they were raised for the first time in a motion for reconsideration.
See J.L.P. v. V.L.A., 30 P.3d 590, 597 n. 28 (Alaska 2001) ("[A] court [has] no obligation to consider an issue raised for the first time in a motion for reconsideration"); DeNardo v. GCI Commc'n Corp., 983 P.2d 1288, 1290 (Alaska 1999) ("Issues raised for the first time in a motion for reconsideration are untimely").
This characterization of the superior court's action is supported by the fact that, if Vollmann's motion for a "stay" were taken literally, it would make no sense. The superior court's underlying decision was to deny Vollmann's request for a change in her conditions of probation. Even if that decision was "stayed," Vollmann's pre-existing conditions of probation would remain in effect, and Vollmann would still be unable to marry Brady.
Thus, even though Vollmann labeled her motion as a request for a "stay," it made sense for the superior court to treat Vollmann's motion as a motion for reconsideration — that is, reconsideration of the superior court's earlier denial of Vollmann's request for a change in her conditions of probation — and to deny the motion on the basis that the constitutional arguments presented in the motion had not been presented before.
Given the nature of the superior court's ruling, Vollmann is not entitled to re-argue her constitutional claims in this appeal. When a litigant appeals a trial court's refusal to grant reconsideration of an earlier decision, "the only question [the] appeal presents is the merits of the [denial of] reconsideration. [Such an appeal] does not [raise] the merits of the [trial court's] underlying . . . decision. . . ."
Lowe v. Severance, 564 P.2d 1222, 1223-24 (Alaska 1977); see also Abraham v. State, 585 P.2d 526, 529-30 (Alaska 1978).
Thus, the sole issue before us is whether the superior court abused its discretion (1) when it characterized Vollmann's motion as a motion for reconsideration, and (2) when it denied that motion on the basis that the substantive legal arguments contained in the motion were being raised for the first time on reconsideration. We find no abuse of discretion, and we therefore affirm the superior court's ruling.
We note that our decision here does not prevent Vollmann from pursuing another motion to modify her conditions of probation if her case-specific circumstances are now more conducive to the proposed marriage.
The decision of the superior court is AFFIRMED.