Opinion
Court of Appeals No. A-11106 Trial Court No. 4FA-10-174 CR No. 6021
02-19-2014
JOSHUA M. WHITING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scott Mattern, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Scott Mattern, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Joshua M. Whiting was convicted under a plea agreement of second-degree murder and sentenced to a term of incarceration and probation for shooting his former landlord, David McEachern. In this appeal, he challenges several special conditions of his probation as impermissibly vague, overbroad, and not reasonably related to his rehabilitation or the protection of the public.
For the reasons described below, we conclude that some of Whiting's challenges have merit. We therefore direct the superior court to reconsider some of Whiting's special conditions of probation.
Why we conclude that Special Condition 1, requiring Whiting to participate in a sex offender evaluation, was not an abuse of discretion
Whiting argues first that Special Condition 1, which requires him to obtain a sex offender evaluation prior to his release, is not reasonably related to his rehabilitation or the protection of the public because there is "no nexus" between Whiting's conviction for second-degree murder and the need to obtain a sex offender evaluation.
Special Condition 1 provides in full:
Prior to release, the probationer shall obtain a sex offender evaluation/risk assessment from a DOC approved sex offender treatment provider to determine the need, if any, for sex offender monitoring/counseling/treatment and follow all recommendations.
As a general matter, a sentencing judge has broad authority to fashion special conditions of probation. However, conditions of probation "must be reasonably related to the rehabilitation of the offender and the protection of the public and must not be unduly restrictive of liberty." We have previously held that, if a probation condition meets this test, it need not relate directly to the offense or offenses for which the defendant was convicted. For instance, in Allain v. State, we upheld a condition of probation that prohibited the defendant from drinking alcoholic beverages, even though the offenses for which the defendant was being sentenced were not alcohol-related. And in Miyasato v. State, we upheld a condition requiring the defendant to undergo sex offender therapy, even though the offense at issue — second-degree burglary for stealing a purse from a flower shop — "may not have been directly related to his misogyny." We concluded that Miyasato's record provided ample basis for the court to conclude that sex offender treatment was integrally related to his rehabilitation and the protection of the public.
Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).
Id.; see also Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
See, e.g., State v. Thomas, 133 P.3d 684, 685-86 (Alaska App. 2005); Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991).
810 P.2d 1019 (Alaska App. 1991).
Id. at 1022-23.
892 P.2d 200 (Alaska App. 1995).
Id. at 202.
Id.
Here, the sentencing judge specifically found that sexual violence was part of Whiting's history and needed to be addressed by his probation conditions. This history included a 2004 conviction for having unlawful sex with a minor, an offense originally reported as a rape, and a 1992 criminal charge for fondling a girl's breasts. Whiting also had multiple convictions for domestic violence against women he was dating or living with.
The sentencing judge also emphasized that its decision to require the sex offender evaluation was based on the testimony of Whiting's own expert, who had testified that any psychological evaluation should take account of Whiting's history of sexual offenses and violence against women and should be performed by someone trained in these specific areas. The expert also testified that, more generally, Whiting had a "substantial pathology" and difficulties with impulse control, and that a comprehensive understanding of those pathologies would aid in his rehabilitation.
The sentencing judge found that this testimony, and Whiting's history of domestic and sexual violence, supported a probation condition requiring Whiting to obtain a sex offender evaluation. We conclude that this decision was not an abuse of discretion, and we therefore affirm Special Probation Condition 1.
Why we conclude that Special Condition 8, barring Whiting from possessing material that acts as a "stimulus," is impermissibly vague and overbroad
Special Condition 8 prohibits Whiting from possessing "material that acts as a stimulus for his abusive cycle or that acts as a stimulus to arouse him in any abusive fashion." Whiting argues that this condition is impermissibly vague, because it does not define what types of "material" he is prohibited from possessing, or explain what is meant by "abusive cycle" or "abusive fashion." He also argues that the condition is overbroad, because it potentially bars him from possessing a "vast universe of items," including books, magazines, movies, and video games. Whiting contends that the condition gives too much discretion to his probation officer and is not narrowly tailored to his rehabilitation or the protection of the public.
Special condition 8 provides in full:
The probationer shall not at any time possess, have on his person, have in his residence or in any vehicle under his control, any material that acts as a stimulus for his abusive cycle or that acts as a stimulus to arouse him in an abusive fashion. Having such stimulus shall be identified as a violation of the treatment and supervision process.
See Oyoghok v. Anchorage, 641 P.2d 1267, 1269-70 (Alaska App. 1982) (noting that a challenged probation condition is impermissibly vague if it deprives the probationer of fair notice as to what conduct is prohibited or encourages arbitrary enforcement).
The State urges us to uphold the condition because the evidence presented at the sentencing hearing established that Whiting has a severe problem with substance abuse, a history of domestic and sexual violence, and problems with impulse control. But the State's argument only underscores the problem with this condition: it does not specify which, if any, of these "abusive cycles" the sentencing court intended the condition to address, or what types of materials the sentencing court considered likely to act as a "stimulus" of these abusive cycles.
We do not mean to imply that a condition prohibiting a probationer from possessing certain materials that act as a "stimulus" for certain types of criminal behavior would never be appropriate. But the probation condition in this case does not explain why the condition is being imposed, nor does it define with any specificity what materials are being prohibited. Nor are we aware of any evidence in the sentencing record that identifies particular types of materials that have in the past, or are likely in the future, to act as a "stimulus" for Whiting's criminal conduct.
Accordingly, we vacate Special Condition 8 as impermissibly vague and overbroad. On remand, the court may consider more specific alternatives if they are supported by the record.
Why we conclude that Special Condition 26 requiring Whiting to disclose his criminal history to persons with whom he has a "significant relationship" or is "closely affiliated" is impermissibly vague
Special Condition 26 requires Whiting to disclose his history of domestic violence and sexual offenses to persons with whom he has a "significant relationship" or is "closely affiliated." The condition requires Whiting to consult with his probation officer and treatment provider to identify the "persons required to be informed" under this condition.
Special Condition 26 provides in full:
The probationer shall inform all persons with whom he has a significant relationship, or with whom he is closely affiliated, of the probationer's sex offending and domestic violence history. Persons required to be informed will be determined in consultation with the approved treatment provider and the probation officer.
Whiting argues that this condition of probation is overbroad and therefore violates his due process rights, because it is not narrowly tailored to cover only those individuals who reasonably need to know about his criminal history. He notes that Special Condition 18, which he has not challenged, already requires him to inform household members of his criminal history. Whiting also argues that the condition is impermissibly vague, because the terms "significant relationship" and "close affiliation" do not give adequate notice of what relationships are encompassed in this disclosure requirement.
Whiting compares this condition of probation to the condition we vacated in Bodfish v. State. In Bodfish, the defendant's probation conditions prohibited him from engaging in an "intimate relationship" without the prior written permission of his probation officer. Because this condition restricted Bodfish's ability to freely choose his intimate associates, the condition implicated his constitutional rights, and we subjected it to special scrutiny. We concluded that the probation condition was overbroad. We also concluded that it was impermissibly vague, because "the meaning of the phrase 'engage in an intimate relationship' is unclear, and the meaning is further obscured because the condition applies to 'any person,' not just women with whom Bodfish is romantically involved."
2009 WL 3233716 (Alaska App. Oct. 7, 2009) (unpublished).
Id., at *4.
Id.
Id.
Id. at *5.
The probation condition Whiting challenges does not preclude him from engaging in intimate relationships without the permission of his probation officer — it only requires him to disclose his criminal history. The interest at stake is therefore less weighty. We nevertheless conclude that the probation condition, as written, is impermissibly vague. The terms "significant relationship" and "closely affiliated" are even less precise than "intimate relationship." They provide Whiting with no guidance on when an association with another person becomes sufficiently "close" or "significant" such that he will be subject to prosecution for failing to disclose his criminal history to the person.
See Oyoghok, 641 P.2d at 1269.
Moreover, social relationships are not static. Even if Whiting determines in consultation with his probation officer that a particular relationship falls outside the scope of the disclosure requirement, the relationship could change. Unless these terms are more narrowly defined, Whiting might have to repeatedly consult with his probation officer and treatment provider to ensure he is not violating the condition. We accordingly vacate Special Condition 26 and remand to the superior court for a clearer explanation of the condition's intended purpose and scope, and for clarification of the terms "closely associated" and "significant relationship."
Why we direct the sentencing court to reconsider the condition potentially limiting Whiting's driving privileges
Whiting also challenges Special Condition 9, which requires him to "observe limitations on driving privileges as established by his probation officer." Whiting argues that this condition is unduly restrictive of his liberty and not reasonably related to his rehabilitation.
Special Condition 9 provides in full:
The probationer shall observe limitations on driving privileges as established by his probation officer. Examples of driving prohibitions could include, but are not limited to, the following: not picking up hitchhikers, not driving at night, and not driving alone. The probationer may be required by his probation officer to maintain a driving log specifying mileage, time of departure and arrival, destination, persons with offender.
We cannot assess the validity of this probation condition because the sentencing judge did not explain why he imposed the condition and the court's reasoning is not obvious from the record. We therefore direct the court on remand to make additional findings and to assess based on those findings whether this condition is reasonably related to Whiting's rehabilitation and the protection of the public and not unduly restrictive of his liberty.
Conclusion
We AFFIRM the superior court's decision to impose Special Condition 1. We VACATE Special Conditions 8, 9, and 26 and REMAND for proceedings consistent with this decision.
The superior court shall transmit its findings on these matters to us within 90 days. The court is authorized to hear further argument from the parties on these issues, if it wishes. After the superior court issues its findings, the parties shall have thirty days to file memoranda in response to those findings. We shall then resume our consideration of Whiting's case.
We retain jurisdiction of this case.