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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY J. WHITEHEAD, )
) Court of Appeals No. A-6868
Appellant, ) Trial Court No. 3AN-S97-3318CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1642 - July 30, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: Sidney K. Billingslea, Anchorage,
for Appellant. Marcelle K. McDannel, 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.
STEWART, Judge.
When Superior Court Judge Milton M. Souter sentenced Larry
J. Whitehead on his conviction for coercion, [Fn. 1] he imposed a
special condition of probation that ordered Whitehead to register
as a sex offender during his probation. Whitehead contends that
Judge Souter could not impose that special condition because
Whitehead was not convicted of a "sex offense" within the meaning
of AS 12.63.100. We agree and vacate the special condition of
probation.
Facts and proceedings
On December 29, 1996, Whitehead worked as a jailor at the
Glenwood Center, a privately-run halfway house operating under a
contract with the Department of Corrections. Early that morning,
he entered G.M.'s room while she was asleep. Whitehead pulled her
t-shirt up over her breasts, began caressing one of G.M.'s breasts
with one hand while he digitally penetrated her vagina with the
other. G.M. woke up and grabbed Whitehead's hand. Whitehead
stopped his fondling and penetration. Before Whitehead left G.M.'s
room, he informed her that she could be sent back to jail and he
could lose his job if she reported his misconduct.
G.M. contacted the police. As part of the investigation,
the police obtained authorization to record a telephone call between
G.M. and Whitehead. On December 31, 1996, G.M. called Whitehead.
During the call, Whitehead admitted his sexual misconduct.
The State filed a complaint charging Whitehead with one
count each of first-degree, [Fn. 2] second-degree, [Fn. 3] and
third-degree sexual assault. [Fn. 4] Pursuant to a plea bargain,
Whitehead entered a no contest plea to the single count of coercion,
a class C felony.
 Judge Souter imposed a 3-year term with 1 year suspended.
He included a special condition of probation that ordered Whitehead
to register as a sex offender during his 6-year probationary period.
Discussion
As a general rule, conditions of probation must be
reasonably related to the probationer's rehabilitation or the
protection of the public. [Fn. 5] Judge Souter concluded that
Whitehead should register as a sex offender because of the sexual
misconduct underlying Whitehead's conviction for coercion.
The record supports Judge Souter's implicit concern that
Whitehead's registration as a sex offender was reasonably related
to the protection of the public. Nevertheless, we conclude that
Judge Souter was not authorized to impose that particular probation
condition.
When it passed the Alaska Sex Offender Registration Act,
the legislature specified the offenses that trigger a defendant's
requirement to register as a sex offender. [Fn. 6] Unlike
registration schemes in other states, there is no provision in the
Alaska Sex Offender Registration Act that authorizes a judge to
order a defendant to register when the defendant is convicted of
another offense not specifically listed by the legislature. [Fn. 7]
In a series of cases starting with Boyne v. State, [Fn.
8] the Alaska Supreme Court and this court have held that sentencing
courts must have explicit legislative authorization before imposing
conditions of probation that fundamentally alter the nature of the
probation. For instance, in Boyne itself, the supreme court held
that a sentencing court may not impose imprisonment as a condition
of SIS probation. [Fn. 9] In Whittlesey v. State, [Fn. 10] the
supreme court held that a court may not impose imprisonment as a
condition of normal probation. We applied the same reasoning in
M.O.W. v. State, [Fn. 11] where we held that a juvenile court lacked
the authority to order a juvenile offender, as a condition of
probation, to spend several days in a closed juvenile facility.
Sex offender registration is obviously less burdensome
than incarceration. We are mindful that probationers have
traditionally been required to apprise their probation officers of
their place of residence and their place of employment.
Nevertheless, sex offender registration entails more than simply
informing a probation officer of one's residence and place of
employment. Under the sex offender registration law, a defendant
must supply this information (as well as other personal information)
for dissemination to the public at large.
Although we recently held in Patterson v. State [Fn. 12]
that sex offender registration is not "punitive" for purposes of the
ex post facto clauses of the federal and state constitutions, we
also have recently held in Peterson v. State [Fn. 13] that a
defendant who enters a guilty plea to a sex offense in ignorance of
the sex offender registration requirement can attack the plea. Our
holding in Peterson rested largely on the fact that the Alaska
Legislature specifically amended Criminal Rule 11(c) to require
judges to inform defendants about the sex offender registration
requirement before accepting a guilty plea to a sex offense. [Fn.
14] We inferred, from the legislature's action, that the
legislature viewed sex offender registration as a serious
consequence of conviction and "that the legislature believed it
would be unfair to allow defendants to plead guilty to a sex offense
without first telling them about the registration requirement." [Fn.
15] For similar reasons, we conclude that we should not construe
AS 12.55.080-.090 to allow sentencing judges to impose sex offender
registration as a condition of probation when the legislature has
not expressly authorized sentencing courts to exercise this power.
Moreover, by ordering Whitehead to register as a sex
offender, Judge Souter imposed corresponding obligations on the
Alaska Department of Public Safety and the local police agency where
Whitehead resides. Absent legislative authorization, the judge had
no power to regulate the conduct of these executive agencies. [Fn.
16]
Conclusion
Accordingly, we VACATE the contested condition of
probation.
FOOTNOTES
Footnote 1:
AS 11.41.530(a)(4).
Footnote 2:
AS 11.41.410(a)(1).
Footnote 3:
AS 11.41.420(a)(3)(B) and/or (C).
Footnote 4:
AS 11.41.425(a)(2) and/or (3).
Footnote 5:
See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
Footnote 6:
See AS 12.63.010-.100.
Footnote 7:
See, e.g., Cal. Penal Code sec. 290(a)(2)(E), which provides
that
the court may order registration "for any offense not included
specifically in this section if the court finds at the time of
conviction that the person committed the offense as a result of
sexual compulsion or for the purposes of sexual gratification."
Footnote 8:
586 P.2d 1250 (Alaska 1978).
Footnote 9:
See id. at 1251.
Footnote 10:
626 P.2d 1066, 1067 (Alaska 1980).
Footnote 11:
645 P.2d 1229, 1235 (Alaska App. 1982).
Footnote 12:
___ P.2d ___, Opinion No. 1641 (Alaska App., July 23, 1999).
Footnote 13:
___ P.2d ___, Opinion No. 1640 (Alaska App., July 23, 1999).
Footnote 14:
See Peterson, Opinion No. 1640 at 20.
Footnote 15:
Peterson, Opinion No. 1640 at 21.
Footnote 16:
See LaBarbera v. State, 598 P.2d 947, 949 (Alaska 1979);
Beckman v. State, 689 P.2d 500, 502 n.5 (Alaska App. 1984).
