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Edwards v State (11/09/2001) ap-1771
Edwards v State (11/09/2001) ap-1771
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHNNY JAMES EDWARDS, )
) Court of Appeals No. A-7728
Appellant, ) Trial Court No. 4FA-92-2312 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1771 November 9, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Scott L. Mattern, Assistant District
Attorney, Harry L. Davis, District Attorney, Fairbanks, and Bruce
M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
As one of his conditions of probation, Johnny James
Edwards was ordered "[n]ot to live with any females under 16 years
of age or with women who have females under 16 years of age living
with them". The superior court revoked Edwards's probation after
finding that Edwards "[spent] a substantial part of [one] night" at
the home of his ex-wife, where the couple's 8-year-old daughter was
also living. The court then imposed 6 months of Edwards's
previously suspended sentence.
In addition, the court amended Edwards's conditions of
probation by adding a more stringent restriction on his contact with
minors. Under the new condition, Edwards is ordered "not [to] be
in the physical presence ... of any person under the age of 16
without the presence of a supervisor approved by [his] probation
officer in advance of the contact".
We conclude that the superior court should not have
revoked Edwards's probation. The court's finding of fact (that
Edwards spent a substantial portion of one night at his ex-wife's
home) does not support the court's legal conclusion (that Edwards
"lived" with an underage female or a woman residing with an underage
female).
However, we conclude that the evidence presented at the
hearing justified the superior court's decision to amend Edwards's
conditions of probation to impose greater restrictions on his
contact with underage females.
Underlying proceedings
Edwards was originally prosecuted for sexual abuse of a
minor after he had sexual relations with his 13-year-old
stepdaughter and got her pregnant. In 1993, Edwards pleaded guilty
to first-degree sexual abuse of a minor and was sentenced to 9 years
in prison (with another 3 years suspended).
This appeal involves a separate but related case. During
Edwards's prosecution for sexual abuse of a minor, he failed to
attend his omnibus hearing. Based on this conduct, Edwards was
separately charged with, and convicted of, felony failure to appear.
[Fn. 1] For this crime, Edwards received a consecutive term of 2
years' imprisonment with 1 year suspended. As a condition of
Edwards's probation in this failure to appear case, Edwards was
ordered "[n]ot to live with any females under 16 years of age or with
women who have females under 16 years of age living with them".
In January 1999, Edwards was released on parole under
conditions set by the Parole Board. Under AS 33.20.040(c), he
commenced his probation at the same time. Edwards's conditions of
parole were stricter than the conditions of probation set by the
superior court. As explained above, the superior court ordered
Edwards not to "live" with female children under the age of 16. The
Parole Board, on the other hand, ordered Edwards not to have any
unsupervised contact with children under the age of 18.
Within a month of Edwards's release, his probation/parole
officer discovered that Edwards was spending a great deal of time
with his ex-wife, Evelyn Stearns, and their children a 14-year-old
boy and an 8-year-old girl. In fact, the probation officer received
a report that Edwards was residing with his ex-wife and the children
at an address on Lucas Street in Wasilla.
When the probation officer asked Edwards about this, he
told the officer that he really was residing at a Knik-Goose Bay
Road address, approximately 14 miles outside Wasilla, but that he
had been spending a lot of time at his ex-wife's house because his
ex-wife was his only means of transportation. The officer
subsequently learned that this explanation was false: according to
the officer, "several [of Edwards's] family members within the
Wasilla/Palmer area ... called ... and said that they would have
been more than willing to give him transportation."
On February 22, 1999, Edwards's probation officer received
an anonymous report that Edwards was spending the night with the
children while his ex-wife was at work. (Ms. Stearns's work shift
ran from 11:00 p.m. to 7:00 a.m..) The probation officer asked for
assistance in investigating this report, so Wasilla Police Officer
Jean-Pierre Achee and social worker Heidi Shumate went to check on
the situation.
Achee and Shumate arrived at the Stearns residence at 7:21
a.m.. Edwards was there, but Ms. Stearns was not. Edwards refused
to let Achee and Shumate into the house, explaining that he did not
feel he could give permission because it was not his house.
However, he did state that his children were not in the house that
their mother had already taken them to school. While Edwards spoke
with the officer and the social worker, he kept the door blocked
with his body, and he kept peering nervously over his shoulder, back
into the house.
Later, the probation officer questioned Edwards about this
encounter. Edwards assured the probation officer that he had spent
the night at his Knik-Goose Bay residence and that he had not had
unsupervised contact with his children. Edwards told the officer
that Stearns had left work early and had driven out to Knik-Goose
Bay to pick up Edwards. According to Edwards, Stearns brought him
back to her Wasilla residence, but within a short time Stearns left
again to take the children to school. In other words, Edwards
denied spending the night at his ex-wife's house, and he denied ever
being alone with his children.
The probation officer pointed out that Edwards's
explanation did not seem to add up. The police officer had arrived
at the Stearns residence a little after 7 o'clock in the morning.
According to Edwards, Stearns had already left to take the children
to school but the children's school did not begin until 9 o'clock.
Edwards then elaborated on his story: he told the probation officer
that Stearns had needed the extra time to fill up her car with gas
and to shop at the grocery store.
Shumate and Achee conducted a follow-up interview with
Edwards's 8-year-old daughter. She told them that Edwards had been
alone with her on several occasions, both at night and during the
day. She described playing "dress up" with Edwards; during this
play, Edwards would help her with her clothes.
Shumate and Achee also interviewed Edwards's 14-year-old
son. The boy admitted that Edwards had been there alone with him
and his sister on the morning of February 22nd. The boy said that
his parents had told him to keep quiet about this, because Edwards
could go back to jail if someone found out.
In addition, Shumate checked with Evelyn Stearns's
employer to see if she really had left work early on February 22nd,
as Edwards had claimed. The employer said that Stearns had not left
early.
Moreover, Stearns worked in Peters Creek, which is
approximately a 20- to 30-minute drive from Wasilla in the winter.
If Edwards's story was true, Stearns would have had to drive out to
the house on Knik-Goose Bay Road (where Edwards purportedly was
staying) before she returned to her own residence. The trip from
the Knik-Goose Bay residence to Stearns's residence in Wasilla was,
itself, a 35- to 40-minute drive. Thus, even if Stearns had left
work a few minutes early, it would have been impossible for her to
drive out to the Knik-Goose Bay house, pick Edwards up, then drive
the 14 miles back to Wasilla, pick up the children, and leave before
7:21 a.m. (when Achee and Shumate arrived).
Shumate also interviewed Edwards's ex-wife about the
events of February 22nd. Stearns gave various contradictory
accounts of her whereabouts, Edwards's whereabouts, and how he came
to be staying alone at her house that morning.
In sum: viewing this evidence in the light most favorable
to the State, it appeared that Edwards had been alone with his
children at his ex-wife's house on the morning of February 22nd,
while his ex-wife was at work.
Edwards took the stand at the hearing and gave an
exculpatory account of events. Edwards explained that he and his
ex-wife had planned to spend the day together with the children
because both of the children had medical appointments. In
particular, the 14-year-old boy was facing surgery, and Edwards
wanted to meet the surgeon, whose office was in Anchorage.
To accomplish this, Edwards said, his landlord at the
Knik-Goose Bay residence was going to drive him to a gas station
near his ex-wife's house in Wasilla. Stearns, for her part, would
leave work early and pick up Edwards at the filling station.
Stearns would then bring Edwards to her house, where she would pick
up the children, and all four of them would drive to the medical
appointments.
But Edwards's landlord either did not know or else forgot
his role in this plan for when Edwards walked over to the
landlord's house, the landlord was still not awake. According to
Edwards, even though time was of the essence, he decided not to
knock on the landlord's door; instead, Edwards stood outside in the
cold and waited. While he was waiting, another acquaintance passed
by in a truck and offered Edwards a lift into Wasilla. Edwards
accepted the offer, and he arrived at the gas station at
approximately 7:30.
Edwards thought that he had missed the rendezvous with his
ex-wife, so he walked the three-quarters of a mile to her house.
When he arrived, the lights were on, but no one was home. Thinking
to himself that Stearns had already left to take the children to
school a thought totally at odds with Edwards's purported
explanation for being there in the first place Edwards let himself
into the house and started to draw a bath. At that point, Edwards
heard a loud pounding on the door: it was the police officer and
the social worker.
(Edwards's timing of events does not comport with the
testimony of the officer and the social worker, who said they
encountered Edwards at his ex-wife's residence at 7:21 a.m. ten
minutes before Edwards said he was dropped off at the gas station.)
Edwards agreed that he told the officer and the social
worker that the children were not there that his ex-wife had
already taken them to school. After the officer and the social
worker left, Stearns arrived in her car. At about the same time,
Edwards heard his children making a "loud commotion" in front of the
house. Edwards assumed that his wife had forgotten about their
plans for the day and had taken the children to school, only to
remember later about the medical appointments. When Edwards chided
Stearns for this, she replied that the children had not been with
her. Instead, Edwards discovered, his son and daughter had been
next door, feeding a neighbor's dogs and watching cartoons.
When the prosecutor asked Edwards to explain why his
children had said that he had been alone with them that morning,
Edwards replied, "Kids just say the darndest things. They're kids."
After hearing all of this evidence, Superior Court Judge
Mary E. Greene concluded that Edwards had been living at the Knik-
Goose Bay residence, but she also found that Edwards had been alone
with the children for a substantial part of the night when Officer
Achee and social worker Shumate knocked on the door on the morning
of February 22nd:
The Court: Clearly, on the 22nd, ... the
kids weren't at school; they had doctor's appointments. ...
Officer Achee [found] the defendant at [his ex-wife's] house. The
stories that were ... given [at that time] were clearly pretty
false. And this follow-up story was ... clearly false. ... I
believe ... that Mr. Edwards had been there [at the house] for some
period of time, and the children were there [too].
Judge Greene then ruled that Edwards had violated his
probation specifically, the condition prohibiting him from living
with females under the age of 16. The judge declared that the
violation was established "by the fact that Mr. Edwards was [at his
ex-wife's residence], perhaps not overnight, but [for] a substantial
part of [the] night [of February 21-22, 1999]."
In a separate proceeding in front of the Parole Board, the
Board found that Edwards had violated the parole condition that
forbade him from having unsupervised contact with children under the
age of 18. As a consequence, the Board revoked Edwards's parole.
Why we reverse the revocation of Edwards's probation
Edwards does not contest the Parole Board's revocation of
his parole. He acknowledges that the evidence, viewed in the light
most favorable to the State, establishes that he had unsupervised
contact with his children during the night of February 21-22, 1999
conduct that was expressly forbidden by the conditions of his
parole. Edwards argues, however, that this evidence does not
establish a violation of his probation. He points out that the
relevant probation condition prohibited different conduct: "living"
with an underage female.
We agree with Edwards. Judge Greene found that Edwards
spent a substantial portion of one night at his ex-wife's residence.
This conduct does not constitute "living with" the people at that
residence (using any normal definition of "live with"). Thus, Judge
Greene's factual finding does not support her conclusion that
Edwards violated this condition of his probation.
Why we nevertheless uphold Judge Greene's decision to
impose more restrictive conditions of probation on Edwards
After Judge Greene found that Edwards had violated his
conditions of probation, she issued an amended judgement that
required Edwards to serve 6 months of his previously suspended
sentence. At the same time, she amended the conditions of Edwards's
probation by imposing stricter limitations on his contact with
minors. In particular, she ordered Edwards "not be in the physical
presence (anywhere, any room) of any person under the age of 16
without the presence of a supervisor approved by [his] probation
officer in advance of the contact".
We have just concluded that Edwards did not violate his
probation. We therefore vacate the portion of the amended judgement
requiring Edwards to serve 6 months of his previously suspended
sentence. This leaves the question of the amended conditions of
probation. Even though Edwards's conduct did not constitute a
violation of his existing conditions of probation, could Judge
Greene nevertheless revise the conditions of probation to Edwards's
detriment imposing greater restrictions on his contact with
minors?
We addressed (but did not resolve) this issue in Reyes v.
State, 978 P.2d 635 (Alaska App. 1999). The defendant in Reyes
argued that, in the absence of a proven violation of probation, any
alteration of a defendant's conditions of probation to the
defendant's detriment necessarily violates the double jeopardy
clause. In rejecting this argument, we explained that the true
issue did not directly involve the double jeopardy clause, but
rather was one of substantive law: the question was to identify the
circumstances in which Alaska law authorizes a sentencing court to
modify the conditions of a defendant's probation.
It practically goes without saying
although the United States Supreme Court expressly said it in United
States v. DiFrancesco [Fn. 2] that the double jeopardy clause is
not violated when a sentencing court revokes a defendant's probation
and imposes a previously-suspended prison term. In such
circumstances, the defendant's sentence has not been "increased"
because, from the beginning, it was understood that the defendant's
imprisonment would remain suspended only if the defendant abided by
the conditions of probation.
... Since the DiFrancesco decision, most
courts have held (either explicitly or implicitly) that when a
defendant challenges a modification of their sentence on double
jeopardy grounds, the double jeopardy issue must be resolved by
examining the applicable sentencing statutes and deciding whether,
from the beginning, the court was authorized to modify the sentence
in that way.
Reyes, 978 P.2d at 639. The United States Supreme Court reiterated
this approach to the double jeopardy problem in Ralston v. Robinson,
454 U.S. 201, 102 S.Ct. 233, 70 L.Ed.2d 345 (1981), where the court
declared that the rule prohibiting a post-sentencing increase in a
defendant's sentence "simply does not apply when [the legislature]
has provided a court with the power to modify a sentence in light
of changed circumstances". [Fn. 3]
As we pointed out in Reyes, the Alaska legislature clearly
"intended probation to be modifiable" for AS 12.55.090(b) declares
that the sentencing court "may revoke or modify any condition of
probation, or may change the period of probation". [Fn. 4] But
although probation is designed to be modifiable, we acknowledged
that there was "considerable debate" among American jurisdictions
"regarding the circumstances in which a court is empowered to modify
the conditions of probation to a defendant's detriment". [Fn.
5]
Some courts hold that, even though there may be
good reason to modify the conditions of probation, the conditions
of probation can be made more severe only if the sentencing court
finds that the defendant has violated the existing conditions of
probation. Other courts hold that a sentencing court can make such
modifications to a defendant's probation even in the absence of a
probation violation, but the record must demonstrate a significant
change of circumstances that provides a reasonable basis for the
more severe conditions of probation.
Reyes, 978 P.2d at 639 (citations omitted).
We did not have to resolve this debate in Reyes because
we concluded that, under either standard, the sentencing court had
no authority to modify the conditions of Reyes's probation. [Fn.
6] That is, Reyes had not violated the conditions of his probation,
and there was no significant change in circumstances to justify re-
evaluation of those conditions. Now we confront this same issue in
Edwards's case, and this time we must resolve it because, as we
explain below, we conclude that the evidence presented at Edwards's
revocation hearing established a significant change of
circumstances.
As the United States Supreme Court indicated in Ralston
v. Robinson, and as we pointed out in Reyes, the question is
ultimately one of Alaska sentencing law. A court has no inherent
power to suspend sentence and impose probation; any such power must
be granted by legislative enactment. [Fn. 7] In Edwards's case,
the particular provision that we must construe is AS 12.55.090(b),
which declares that the sentencing court "may revoke or modify any
condition of probation, or may change the period of probation".
AS 12.55.090(a) mirrors the fourth paragraph of former 18
U.S.C. sec. 3651, its federal counterpart at the time of its
enactment.
[Fn. 8] However, we have been unable to find any pertinent
statutory history on the question presented here: whether an Alaska
court can modify a defendant's conditions of probation to the
defendant's detriment in the absence of a proven violation of the
pre-existing conditions of probation.
Because the statutory history does not yield an answer to
our inquiry, we must employ our common-law power to declare the law
in the absence of a statutory directive, adopting "the rule of law
that is most persuasive in light of precedent, reason, and policy."
[Fn. 9] Having considered this matter, we conclude that Alaska
should adopt the "significant change of circumstances" side of the
debate.
As we noted in State v. Staael, probation is a statutorily
authorized method for allowing the conditional release of criminal
offenders. [Fn. 10] Under Alaska law, when a sentencing court
decides to grant probation i.e., when the court allows a defendant
to remain at conditional liberty in lieu of serving time in prison
the court has "broad authority to fashion conditions of
probation"that are "reasonably related to the probationer's
rehabilitation or the protection of the public". [Fn. 11]
This broad authority derives from the underlying premise
of a probationary sentence. A judge who grants probation has
expressly or implicitly determined that the goals of affirming
community values, rehabilitating the defendant, and protecting the
public can be achieved without imprisoning the defendant that
these goals can be achieved by allowing the defendant to remain in
the community, subject to conditions.
But because society takes a risk when a defendant is
released on probation, our supreme court has acknowledged a
sentencing judge's
clear need ... to know whether the probationer
is conducting his life in a manner which warrants continuation of
his present probationary status, or whether because of antisocial
conduct the goal of rehabilitation is not being furthered and thus,
either a change in the conditions of probation, or incarceration,
is necessary in order to protect society.
State v. Sears, 553 P.2d 907, 914 (Alaska 1976).
This passage from Sears strongly suggests that a
sentencing judge should be able to modify the conditions of
probation whenever a defendant's post-sentencing conduct establishes
a substantial reason to conclude that the current conditions of
probation are not adequately ensuring the defendant's rehabilitation
or adequately protecting the public. More particularly, this
passage suggests that a sentencing court's power to supervise and
modify a defendant's probation should not be limited to instances
in which the defendant has violated a pre-existing condition.
The facts of Edwards's case illustrate why a sentencing
judge might justifiably conclude, even in the absence of a probation
violation, that a defendant's current conditions of probation were
not adequately ensuring the defendant's rehabilitation or adequately
protecting the public, and that a change in the conditions of
probation was needed. The pre-existing condition of probation that
prohibited Edwards from "living" with a minor female was imposed
because Edwards sexually abused his 13-year-old stepdaughter. The
sentencing court's concern was to fashion conditions of probation
that would prevent or deter Edwards from again engaging in similar
criminal conduct.
At the probation revocation hearing, the State presented
evidence that Edwards had repeatedly lied about his unsupervised
contacts with his 8-year-old daughter, and that Edwards had also
encouraged or induced his ex-wife and his children to lie about
these contacts. Moreover, after Edwards took the stand at the
evidentiary hearing and offered a revised exculpatory account of his
activities, Judge Greene declared that Edwards's "follow-up story
was ... clearly false." That is, Judge Greene essentially found that
Edwards committed perjury rather than reveal the truth about his
contacts with his daughter. In addition, even though Edwards did
not violate the conditions of his probation when he spent
unsupervised time with his daughter, he knew that his unsupervised
contacts with his daughter violated the conditions of his parole,
and he was not deterred.
Precedent, reason, and policy lead us to the conclusion
that a sentencing court should be able to modify a defendant's
conditions of probation to the defendant's detriment (i.e., impose
more stringent conditions of probation) when the State proves a
"significant change of circumstances" which we define to mean post-
sentencing conduct that establishes a substantial reason to conclude
that the current conditions of probation are not adequately ensuring
the defendant's rehabilitation or adequately protecting the public.
Using this definition, we affirm Judge Greene's decision
to impose stricter conditions of probation on Edwards. Even though
the State may have failed to prove that Edwards violated his pre-
existing conditions of probation, Judge Greene could reasonably
conclude that the evidence presented at the revocation hearing
established a significant change of circumstances that justified
imposition of new, stricter conditions of probation. Edwards
showed himself willing to flout the conditions of his parole to
engage in unsupervised contact with his daughter. He showed himself
willing to commit perjury to cover up this conduct. And he tried
to induce his children to conceal this conduct from the authorities.
Judge Greene could properly conclude that Edwards's conduct provided
grounds for a significantly altered view of Edwards's potential for
rehabilitation and the level of danger that he posed to the public.
To paraphrase our supreme court in Sears, these facts could
reasonably lead Judge Greene to conclude that, given Edwards's
"[post-sentencing] antisocial conduct[,] the goal of rehabilitation
[was] not being furthered and thus ... a change in the conditions
of probation ... [was] necessary in order to protect society."
Edwards's claim that the new condition of probation is
overbroad and unduly restricts his freedom
The new condition of probation imposed by Judge Greene
directs Edwards "not [to] be in the physical presence ... of any
person under the age of 16 without the presence of a supervisor
approved by [his] probation officer in advance of the contact". At
oral argument, Edwards claimed that this new condition unduly
restricts his liberty that it is potentially so broad as to
prohibit him from walking along the streets, shopping for groceries,
eating at restaurants, or engaging in other necessary life
activities.
This claim was not briefed. In his briefs to this court,
Edwards argued that Judge Greene had no authority to alter the
conditions of probation to his detriment. He did not address the
further question of whether, assuming that Judge Greene had this
authority, she exercised it in a way that unduly infringed Edwards's
rights. Because Edwards did not raise this claim until oral
argument, he waived it.
Conclusion
For the reasons explained here, we REVERSE the superior
court's decision to revoke Edwards's probation and impose 6 months
of his previously-suspended prison term. At the same time, we
AFFIRM the superior court's decision to modify the conditions of
Edwards's probation by imposing stricter constraints on Edwards's
contact with minors.
FOOTNOTES
Footnote 1:
AS 12.30.060(1).
Footnote 2:
449 U.S. 117, 137; 101 S.Ct. 426, 437; 66 L.Ed.2d 328 (1980).
Footnote 3:
Id., 454 U.S. at 217 n.10, 102 S.Ct. at 244 n.10.
Footnote 4:
Reyes, 978 P.2d at 639.
Footnote 5:
Id.
Footnote 6:
See id. at 640-41.
Footnote 7:
See Pete v. State, 379 P.2d 625, 626 (Alaska 1963).
Footnote 8:
This federal statute was repealed and re-written in 1984. See
Public Law 98-473, Title II, sec.sec. 212(a)(1), (2), 98 Stat. 1987
(1984).
Footnote 9:
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (quoting
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
Footnote 10:
807 P.2d 513, 516 (Alaska App. 1991).
Footnote 11:
Baum v. State, 24 P.3d 577, 581-82.
