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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES W. WILLIAMS, )
) Court of Appeals No. A-5857
Appellant, ) Trial Court No. 1JU-95-00254CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1480 - September 13, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.
Appearances: Charles W. Williams, pro se,
Palmer. John A. Scukanec, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Charles W. Williams was convicted in 1992 of one count of
sexual assault in the first degree. Superior Court Judge Larry R.
Weeks sentenced Williams to a term of twenty years with twelve years
suspended. Williams appealed his sentence to this court, claiming
that it was excessive, and we affirmed. Williams v. State, 859 P.2d
720 (Alaska App. 1993).
 In 1995, Williams filed an application for post-conviction
relief in the superior court, challenging as illegal a provision of
his judgment of conviction that required Williams to "participate
in and complete any sex offender treatment program offered in
prison." Williams later supplemented his application, challenging
as unconstitutionally vague the statute under which this requirement
was imposed; he also challenged the validity of a condition of
probation requiring him, upon request of his probation officer, to
"reside in a Community Residential Center approved by the Department
of Corrections for a period of time not to exceed one year."
Judge Weeks denied Williams' application. Williams
appeals, renewing here the claims he asserted below. We affirm.
In ordering Williams to "participate in and complete any
sex offender treatment program offered in prison," Judge Weeks
relied on AS 12.55.015(a)(10), which authorizes sentencing judges
to "order the defendant, while incarcerated, to participate in or
comply with the treatment plan of a rehabilitation program that is
related to the defendant's offense or the defendant's rehabilitation
if the program is made available to the defendant by the Department
of Corrections [DOC]." Williams points out that the wording used
by Judge Weeks, which requires Williams to participate in and
"complete" a treatment program, differs from the wording of the
statute, which only empowers the court to order an offender to
participate in and "comply with" a treatment program. Williams
maintains that, in requiring him to "complete" treatment, Judge
Weeks exceeded the authority conferred to sentencing courts by AS
12.55.015(a)(10).
As a practical matter, we see little difference between
the wording of AS 12.55.015(a)(10) and the wording used by Judge
Weeks in Williams' judgment. (EN1) Nevertheless, in the interest
of utmost clarity, and in order to avoid even a remote possibility
of misunderstanding in the enforcement of Williams' judgment, we
hold that the order requiring Williams to "complete" a program of
treatment must be interpreted as being synonymous with the statutory
wording authorizing the court to require Williams to "comply with"
his treatment plan. So construed, the wording of the judgment is
not at odds with AS 12.55.015(a)(10).
Williams separately contends, however, that AS 12.55.015
is itself unconstitutionally vague; he professes to be uncertain as
to the meaning of the words "participate in or comply with."
Williams complains that
the term participate in gives no notice or
information as to what constitutes participa-
tion i.e.; one day, one week, 2 hours daily or
what? The same lack of definiteness and notice
applies to the ambiguous term or comply with[;]
what constitutes compliance? Ambiguously if a
defendant does not participate in then he/she
can obey with a second choice of or comply
with.
Williams' complaint is groundless. In authorizing orders
requiring incarcerated defendants "to participate in or comply with"
the treatment plans of DOC rehabilitation programs, AS 12.55.015
(a)(10) plainly empowers courts to order participation, compliance,
or both; Williams' judgment expressly requires both. Williams
cannot plausibly claim confusion as to whether he has a choice
between participation or compliance.
Nor can Williams plausibly claim confusion as to the
meanings of the statutory words "participate in" and "comply with."
A statute fails to provide adequate notice only "when it is so
imprecise that ordinary persons of common intelligence are left to
guess at its meaning and are apt to differ as to its scope." Konrad
v. State, 763 P.2d 1369, 1379 (Alaska App. 1988). Mathematical
precision is unnecessary to satisfy the requirement of fair notice;
some imprecision in definitions is unavoidable. Panther v. State,
780 P.2d 386, 390 (Alaska App. 1989). The lack of a bright-line
test will not render a statute unconstitutionally vague if,
"[a]lthough difficult to define concretely, the statutory
requirement . . . is readily comprehensible." Id. at 391. (EN2)
In the present case, the statutory words "participate in"
and "comply with" must be interpreted in light of AS 12.55.015(a)
(10) as a whole. In our view, the statutory language as a whole
reasonably fixes the parameters defining participation and
compliance. Under AS 12.55.015(a)(10), the precise level of
compliance and participation required in a given case must be
determined by reference to the "treatment plan" adopted by the
"rehabilitation program" to which the defendant is assigned:
whatever the treatment plan requires, the defendant must do. As to
duration, the defendant may be required to continue participating
and complying "while incarcerated," that is, throughout the entire
term of incarceration (provided, of course, that the treatment plan
calls for continued participation). But the defendant is obligated
to comply and participate only "if the program is made available"
by DOC. And the program must be þrelated to the defendant's
offense or to the defendant's rehabilitation."
Williams' participation and compliance must be measured
by these parameters. At this juncture, we have been given no reason
to believe that either DOC or the superior court would be inclined
to apply a different standard. Since "the statutory requirement
. . . is readily comprehensible," Panther, 780 P.2d at 391, we find
no vagueness problem.
Williams lastly challenges a probation condition that will
require him, upon his eventual release on probation and if requested
by his probation officer, to "reside in a Community Residential
Center approved by the Department of Corrections for a period of
time not to exceed one year." Judge Weeks evidently imposed this
condition under the authority stated in AS 12.55.100(a)(5), which
states that, while on probation, a defendant may be required "to
participate in or comply with the treatment plan of an inpatient or
outpatient rehabilitation program specified by either the court or
the defendant's probation officer that is related to the defendant's
offense or to the defendant's rehabilitation."
Williams cursorily asserts that one year's residency in
a Community Residential Center [CRC] is unrelated to any inpatient
or outpatient rehabilitation program, and so does not comply with
the requirements of AS 12.55.100(a)(5). The record is devoid of any
support for this contention. If Williams' eventual CRC placement
is governed by a treatment plan related to his offense or
rehabilitation -- and Williams has failed to show that it will not
be -- we see no reason to conclude that the placement would fall
outside the authority of AS 12.55.100(a)(5).
Williams also maintains that the disputed probation
condition impermissibly delegates the superior court's sentencing
authority to his probation officer and constitutes an impermissible
increase in his originally imposed sentence. Williams relies
principally on Hester v. State, 777 P.2d 217, 219 (Alaska App.
1989).
But Williams' case differs markedly from Hester's. In
Hester, the sentencing statute at issue -- former AS 28.35.030(c) -
- permitted the sentencing court to order a defendant's
participation in treatment, but only in a program selected by the
court, and for a term fixed by the court. The sentencing court
failed to designate a specific program for Hester or to fix a term
of treatment; instead, it simply ordered Hester to "enroll in and
satisfactorily complete a program to be designated by the Kodiak
Alcohol Safety Action Program." Hester was eventually directed to
enroll in a thirty-day residential treatment program that was the
functional equivalent of incarceration.
We concluded in Hester that the disputed treatment order
amounted to an unauthorized delegation of the court's sentencing
powers. In addition, because Hester's original sentencing order did
not specifically require him to spend any time in residential
treatment, we concluded that the subsequent directive requiring him
to undergo thirty days of residential treatment resulted in an
impermissible increase in the originally imposed sentence. Hester,
777 P.2d at 218-19.
By contrast, the sentencing statute at issue in Williams'
case -- AS 12.55.100(a)(5) -- expressly authorizes the sentencing
court to delegate to the defendant's probation officer the
responsibility of specifying a treatment program. Hence, no
impermissible delegation occurred here. Moreover, the disputed
condition, requiring Williams to spend up to one year in a CRC
placement upon request of his probation officer, was specifically
imposed by Judge Weeks as part of the original sentencing order.
Should Williams eventually be directed to spend a year in CRC
placement, the directive will neither increase nor otherwise alter
his originally imposed sentence. Hence, the disputed condition of
probation is not, on its face, illegal.
For the foregoing reasons, the order denying Williams'
application for post-conviction relief is AFFIRMED.
ENDNOTES:
1. The problem posed by the different wording seems more semantic
than real. To the extent that any treatment plan offered Williams
by DOC contemplated his eventual completion of a rehabilitation
program, completion of the program would be subsumed within the
requirement of compliance. And if a treatment plan called for
Williams' participation in an ongoing program that had no mandatory
goals to be completed or that allowed Williams to obtain approval
to terminate treatment at some point short of the ultimate
treatment goal, Williams' compliance with the requirements of the
plan -- that is, his continued participation while the program
remained available and until termination of treatment was approved
-- would be tantamount to completion, thereby satisfying the
requirement that Williams "complete" a program of treatment.
2. As this court noted in De Nardo v. State, 819 P.2d 903, 908
(Alaska App. 1991):
[t]he fact that people can, in good faith,
litigate the meaning of a statute does not
necessarily (or even usually) mean that the
statute is so indefinite as to be unconstitu-
tional. The question is whether the statute's
meaning is unresolvably confused or ambiguous
after it has been subjected to legal analysis.
If study of the statute's wording, examination
of its legislative history, and reference to
other relevant statutes and case law makes the
statute's meaning clear, then the statute is
constitutional.
(emphasis in original).
