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Harris v. State of Alaska (5/28/99) ap-1636
NOTICE: The text of this opinion can be corrected before the opinion is published in the
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of the Clerk of the Appellate Courts:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALPHONSO HARRIS, )
) Court of Appeals No. A-6715
Appellant, ) Trial Court No. 3AN-88-3187 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1636 - May 28, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Harold M. Brown, Judge.
Appearances: James T. LaVecchia, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In 1987, Alphonso Harris took nude photographs of the 13-
year-old daughter of his live-in companion. Even though Harris
coerced the girl and her mother to recant their accusations and
testify in his favor at trial, the jury convicted Harris of
exploiting a minor. [Fn. 1] Harris was sentenced to 7 years'
imprisonment, but 2 years of this sentence were suspended on
condition of Harris's good behavior during 5 years' probation. This
court affirmed Harris's sentence in Harris v. State. [Fn. 2]
In April 1996, the Department of Corrections filed a
petition (and later a supplemental petition) to revoke Harris's
probation. The petition (as supplemented) alleged that Harris had
committed several violations of his conditions of probation.
Following a hearing, the superior court found that most of these
allegations were proved. The court revoked Harris's probation and
ordered him to serve the previously suspended 2 years.
In this appeal, Harris asserts that the evidence against
him was either factually or legally insufficient to prove the
violations alleged in the petition. Harris also asserts that his
sentence (2 more years to serve) is excessive. For the reasons
explained here, we affirm the superior court's decision.
Three conditions of Harris's probation are pertinent to
this appeal. First, Harris was ordered to "[c]omply with all
municipal, state and federal laws." Second, Harris was ordered to
"submit to testing for the use of controlled substances when
required by the Probation/Parole Office." Third, Harris was ordered
"to have no contact with minors under the age of sixteen without the
written approval of the Probation/Parole Office." In its petition
to revoke Harris's probation, the Department of Corrections alleged
that Harris had violated these conditions by (1) assaulting his
live-in companion, a woman named P.B.; (2) refusing to submit to
testing for controlled substances; and (3) living in a residence
with children under the age of 16 without notifying his probation
officer and obtaining the officer's consent.
With regard to the allegation that Harris assaulted P.B.,
Harris contends that this assault could not lawfully provide the
basis for revoking his probation. Harris points out that the State
charged him with a separate criminal offense (fourth-degree assault)
for this conduct, but the State later dismissed the criminal
complaint. Harris argues that "[w]hen the district attorney ...
dismissed the complaint [charging] assault in the fourth degree, ...
the basis for the [probation] violation ceased to exist[.]"
Harris is wrong. The supreme court decided this issue
twenty years ago in State v. DeVoe. [Fn. 3]
In DeVoe, a probationer committed a new offense (receiving
and concealing stolen property); the State filed a criminal charge
and also filed a petition to revoke DeVoe's probation. However, the
State later dismissed the criminal charge. When the superior court
judge assigned to the probation revocation matter learned that the
criminal charge had been dismissed, he entered an order denying the
revocation petition. [Fn. 4] The judge ruled that it would be
fundamentally unfair to revoke a defendant's probation for criminal
conduct when separate criminal charges "have been dismissed or
effectively withdrawn before trial". [Fn. 5]
The supreme court reversed the superior court's ruling.
The court held that a defendant's probation can be revoked for new
criminal conduct even though separate criminal charges are never
filed or are dismissed short of trial. "[The superior court's]
denial of the [revocation] petition, solely because the state had
elected not to charge and convict DeVoe in ... separate criminal
proceedings, was a clear abuse of discretion." [Fn. 6]
In light of DeVoe, we conclude that the superior court
could properly consider Harris's assault on P.B. even though the
State dismissed the separate criminal complaint.
With regard to the allegation that Harris refused to be
tested for controlled substances, Harris again asserts that his
conduct could not lawfully provide the basis for revoking his
probation. Harris points out that the initial petition to revoke
his probation was filed on April 1, 1996, and that his refusals to
submit to drug testing occurred later on April 9th and on May 8th.
Harris contends that, once the initial revocation petition was filed
on April 1st, he was no longer on probation and thus no longer
subject to the conditions of probation.
In Gage v. State [Fn. 7], this court held that the running
of a defendant's probation is tolled by the filing of a petition to
revoke probation (if the allegations in the petition are later
proved). In Gage, six months elapsed between the filing of the
petition to revoke the defendant's probation and the superior
court's final decision to revoke probation. Gage claimed that he
was entitled to six months' credit against his probationary term
that he should be deemed to have been serving his probation during
the six months between petition and disposition. [Fn. 8] We
rejected Gage's argument:
[When] a petition to revoke probation ... is
filed and the court subsequently determines that the alleged
violation was in fact committed, there can be no legitimate
justification for allowing the probationer to claim credit for time
served on probation during the period between the filing of the
petition and its ultimate adjudication.
Gage, 702 P.2d at 647-48.
At first blush, the holding in Gage may seem to support
Harris's contention that his probation effectively ended (or was
interrupted) when the Department of Corrections petitioned the
superior court to revoke the probation. However, the issue in Gage
was whether a defendant should receive credit against his period of
probation for a period of interruption attributable to the
defendant's violation of probation.
(This court reached a similar result in O'Shea v. State
[Fn. 9], where this court was asked to decide whether a probationer
who had left Alaska without permission should receive credit against
his five-year period of probation for his two years' absence from
Alaska two years during which he was not, in fact, under
probationary supervision. We held that "O'Shea's unauthorized
absence from probation tolled the running of his probationary term"
[Fn. 10] and thus, the superior court could lawfully extend
O'Shea's probation by a corresponding two years, so that his
violation of the terms of his release would not result in a benefit
to him. [Fn. 11])
Gage stands for the proposition that the filing of a
petition to revoke probation will toll the running of probation if
the probationer is later found to have violated the conditions of
probation. But neither Gage nor O'Shea addressed the question posed
by Harris: whether a probationer who is released on bail pending
the conclusion of the revocation proceedings remains subject to the
conditions of probation.
Neither Gage nor O'Shea suggests that a probationer is
freed from the conditions of probation as soon as the Department of
Corrections files a petition to revoke probation. In fact, such a
result would run counter to the policy underlying both of those
decisions. If the filing of a revocation petition released a
probationer from the strictures imposed by the sentencing court,
then the law would be rewarding the probationer for misconduct.
We therefore reject Harris's argument. Instead, we hold
that Harris's conditions of probation continued in force while the
petition to revoke his probation was pending before the superior
court. Harris's refusals to submit to drug testing on April 9th and
May 8th could properly be considered by the superior court when the
court decided whether to revoke Harris's probation.
The third allegation was that Harris lived in a household
with children under the age of 16 (P.B.'s son and daughter) without
obtaining the approval of his probation officer. Harris does not
deny that he violated this condition of his probation. However, he
asserts that this violation "was a violation in name only" because
the State never asserted that he engaged in any improper conduct
with the children.
The fact that a probationer has violated the conditions
of probation does not necessarily mean that the superior court
should revoke probation and sentence the probationer to jail. [Fn.
12] However, if the circumstances warrant, a court can revoke a
defendant's probation even though the defendant's violation of
probation does not constitute an independent crime. [Fn. 13]
Therefore, even though Harris may not have engaged in criminal
conduct with P.B.'s children, Harris did violate the conditions of
his probation by living with the children (without his probation
officer's approval), and the superior court was entitled to consider
this violation when deciding whether to revoke Harris's probation.
Harris further asserts that his probation officers were
aware of his living arrangement for a long time before they filed
the petition to revoke his probation. Harris argues that it is
unfair to allow the superior court to revoke his probation for
conduct that his probation officers silently condoned.
From the record, it is unclear whether the probation
officers were aware that Harris was living with the children. P.B.
testified that she had been "led to believe" that the probation
officers knew that Harris was living in the same household with the
children and "chose to let it be that way". However, P.B. did not
identify the person or persons who had "led [her] to believe" this.
The State asserts that this person could have been Harris.
We need not resolve this factual issue. Harris does not
claim that his probation officers misled him into thinking that he
had their approval for the living arrangement and that the only
violation was a technical one, in that the probation officers gave
Harris verbal approval rather than the written approval specified
in the conditions of his probation. Rather, Harris claims only that
his probation officers were aware that he was living with children
and they failed to take action for a long time. This being so,
then even if we assume the truth of Harris's assertion, the
probation officers' belated failure to take action would not excuse
Harris's violation of this condition of his probation. [Fn. 14]
The superior court could properly take this violation into account
when deciding whether to revoke Harris's probation.
Harris's final claim is that, even in light of all these
violations of probation, the superior court was clearly mistaken to
sentence Harris to serve the entire remaining 2 years of his
sentence.
Harris's offense, exploitation of a minor, is a class B
felony. [Fn. 15] Harris was a second felony offender when he was
sentenced for this crime [Fn. 16]; he therefore faced a presumptive
term of 4 years' imprisonment. [Fn. 17] At Harris's original
sentencing, the superior court found one aggravating factor: that
Harris had committed the offense upon a child living in the same
social unit as himself. [Fn. 18] Based on this aggravator, the
superior court adjusted the presumptive term upward, sentencing
Harris to serve 5 years in prison, with an additional 2 years
suspended.
Now that Harris's probation has been revoked and he has
been ordered to serve the previously-suspended 2 years, his total
sentence for exploitation of a minor is 7 years to serve. Harris
argues that this sentence is excessive.
Harris first argues that his sentence violates the rule
announced in Austin v. State. [Fn. 19] In Austin, this court held
that the superior court should normally sentence a first felony
offender to a lesser sentence than the presumptive term that would
apply if the defendant were a second felony offender. [Fn. 20]
Later, in Brezenoff v. State [Fn. 21], we clarified that the Austin
sentencing limit could be exceeded only when the State proved one
or more of the aggravating factors listed in AS 12.55.155(c) or
extraordinary circumstances as defined in AS 12.55.165. [Fn. 22]
The Austin-Brezenoff rule is now codified in AS 12.55.125(k).
Harris argues that Austin stands for yet another rule:
that second felony offenders should normally receive a more
favorable sentence than the presumptive term that would apply if the
defendant were a third felony offender. The quick answer to this
contention is that Austin does not address this issue.
However, even if Austin did stand for the proposition
Harris asserts the proposition that, absent aggravating factors
or extraordinary circumstances, second felony offenders should
receive a more favorable sentence than the presumptive term for
third felony offenders this rule would not help Harris. As noted
above, the superior court found an aggravating factor at Harris's
original sentencing; that is how Harris, a second felony offender,
ended up with a sentence more severe than the 4-year presumptive
term provided for second felony offenders. Even under the rule that
Harris argues for, that same aggravating factor would authorize the
superior court to consider sentences more severe than the 6-year
presumptive term provided for third felony offenders.
Moreover, we have ruled that "when a history of probation
violations establishes a person's poor prospects for rehabilitation,
that fact may be deemed an extraordinary circumstance justifying the
imposition of a sentence in excess of the Austin limits." [Fn. 23]
Thus, leaving aside the aggravating factor found at Harris's
original sentencing, Harris's conduct since that time could
constitute an independent reason for exceeding the normal Austin
sentencing limit.
The relevant question in such cases is
whether the totality of the circumstances upon revocation of
probation would have justified a sentence in excess of the Austin
limits if known when the original sentence was imposed. Before
finding that an offender's probation violations justify a total
sentence exceeding the applicable presumptive term for a second
felony offender, the sentencing court must conclude that the
offender's poor conduct on probation, when viewed in conjunction
with all of the originally available sentencing information, renders
the case even more serious and therefore deserving of even greater
punishment than the case of a typical second felony offender
committing a typical offense of the same class.
Chrisman, 789 P.2d at 371 (citation omitted).
Because no special legal rule restricted the superior
court's sentencing discretion, we therefore turn to the remaining
issue: whether, under the circumstances of Harris's case, a
sentence of 7 years to serve is clearly mistaken. [Fn. 24]
When deciding whether to revoke a defendant's probation
and impose some or all of the defendant's previously suspended jail
time, a judge must evaluate all of the circumstances of the case in
light of the Chaney criteria. [Fn. 25] The relevant circumstances
include the defendant's original offense, the defendant's conduct
on probation, and the sentences imposed on similar defendants
committing similar crimes. [Fn. 26]
Harris was originally convicted for taking nude
photographs of his live-in companion's thirteen-year-old daughter.
These photographs depicted the nude child with a man's hand touching
her vaginal area. [Fn. 27] As already noted, Harris's offense was
aggravated because he resided in the same social unit as the victim.
After Harris was indicted for this offense, he coerced his companion
and her daughter into recanting their accusations, testifying in his
favor, and writing letters to the court on his behalf. [Fn. 28]
Harris conceded that he violated his probation by leaving
the state five times without notifying his probation officer. And,
as described above, Harris assaulted P.B., he failed to submit to
drug testing at his probation officer's request, and he had
continual contact with minors without his probation officer's
permission.
While in prison, Harris was terminated from sex offender
treatment after only one month due to his lack of commitment to the
program, his refusal to accept responsibility for his misconduct,
and his tendency to portray himself as the victim. Following his
release from prison, Harris did participate in sex offender
treatment for two years, but during all this time he persisted in
denying his offense. The treatment provider assessed Harris as
posing a high risk for recidivism.
In sentencing Harris to serve the remaining 2 years,
Superior Court Judge Harold M. Brown stated that his decision was
based on the seriousness of Harris's original offense and Harris's
conduct on probation, especially the assault and the on-going
contact with minors. Based on this record, Judge Brown concluded
that Harris had poor prospects for rehabilitation and that
imposition of the remaining 2 years was necessary to protect society
and to deter others from similar conduct. Although Judge Brown's
sentencing remarks are brief, they demonstrate that the judge
considered the relevant circumstances of Harris's case in light of
the Chaney factors.
Based on our independent review of the record, we conclude
that Judge Brown was not clearly mistaken when he decided to impose
the remaining 2 years of Harris's sentence, making Harris's total
sentence 7 years to serve.
The judgement of the superior court is AFFIRMED.
In the Court of Appeals of the State of Alaska
Alphonso Harris, )
) Court of Appeals No. A-06715
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 5/28/99
)
Trial Court Case # 3AN-88-03187CR
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
On consideration of the State's motion to publish the memorandum
opinion and judgment No. 4025, issued on March 31, 1999,
It is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 4025, issued on March 31, 1999, is
Withdrawn and Opinion No. 1636 is issued in its place.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Court of Appeals Judges
Central Staff
Trial Court Judge Harold Brown
Trial Court Appeals Clerk
Publishers
Distribution:
James LaVecchia
Attorney at Law
1016 Second Street #1
Kenai AK 99611
Kenneth Rosenstein
OSPA
310 K Street #308
Anchorage AK 99501
FOOTNOTES
Footnote 1:
AS 11.41.455(a).
Footnote 2:
790 P.2d 1379, 1384
(Alaska App. 1990).
Footnote 3:
560 P.2d 12 (Alaska 1977).
Footnote 4:
See id. at 13.
Footnote 5:
Id. at 14.
Footnote 6:
Id. at 15. See alsoSnyder v. State, 496 P.2d 62,
63 (Alaska 1972) (appellant's
probation could be revoked
because of his commission of
assault and battery in
violation of conditions of
probation, even though
appellant had not been formally
charged or convicted of the
assault and battery).
Footnote 7:
702 P.2d 646 (Alaska App.
1985).
Footnote 8:
See id. at 646-47.
Footnote 9:
683 P.2d 286 (Alaska App.
1984).
Footnote 10:
Id. at 288.
Footnote 11:
See id. at 288-290.
Footnote 12:
See Trumbly v. State, 515
P.2d 707, 709 (Alaska 1973);
Andrew v. State, 835 P.2d 1251,
1254 (Alaska App. 1992).
Footnote 13:
See, for example, Trumbly,
supra.
Footnote 14:
Compare Haggren v. State,
829 P.2d 842 (Alaska App.
1992), where we held that a
person can be convicted of
violating the law even if the
person relied on erroneous
legal advice proffered by a law
enforcement officer. "[W]e
reject Haggren's argument that
the State was estopped from
prosecuting him for violating
the regulation. ... [T]he
fact that Haggren may have
relied on bad legal advice from
Officer Titus does not provide
Haggren with a defense to the
charge. While the case might
be different if Titus or some
other state official had
ordered Haggren to put his
drift net in the water or had
directed Haggren to continue
operating his drift net after
Canady deployed the set net,
this did not happen here." Id.
at 844.
Footnote 15:
AS 11.41.455(c).
Footnote 16:
See Harris, 790 P.2d at
1380.
Footnote 17:
AS 12.55.125(d)(1).
Footnote 18:
See Harris, 790 P.2d at
1381; AS 12.55.155(c)(18).
Footnote 19:
627 P.2d 657 (Alaska App.
1981).
Footnote 20:
See id. at 657-58.
Footnote 21:
658 P.2d 1359 (Alaska App.
1983).
Footnote 22:
See id. at 1362.
Footnote 23:
Chrisman v. State, 789
P.2d 370, 371 (Alaska App.
1990).
Footnote 24:
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).
Footnote 25:
See Crouse v. State, 736
P.2d 783, 786-87 (Alaska App.
1987); State v. Chaney, 477
P.2d 441, 443-44 (Alaska 1970).
See also Moya v. State, 769
P.2d 447, 448 (Alaska App.
1989).
Footnote 26:
See Crouse, 736 P.2d at
787; Witt v. State, 725 P.2d
723, 724 (Alaska App. 1986).
Footnote 27:
See Harris, 790 P.2d at
1380.
Footnote 28:
See id.
