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Hamrick v. State (2/14/2003) ap-1852
Hamrick v. State (2/14/2003) ap-1852
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
FLOYD L. HAMRICK, )
) Court of Appeals No. A-
8041
Appellant, ) Trial
Court No. 3AN-S97-10534 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1852 - February 14, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Leslie Hiebert, Assistant
Public Advocate, Brant McGee, Public
Advocate, Office of Public Advocacy,
Anchorage, for Appellant. Kenneth J.
Diemer, 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.
COATS, Chief Judge.
STEWART, Judge, dissenting.
Floyd L. Hamrick was convicted of sexual abuse of a
minor in the second degree. Superior Court Judge Larry D. Card
sentenced Hamrick to serve 10 years with 4 years suspended. One
of Hamricks special conditions of probation required him [w]hile
incarcerated to successfully complete an approved sexual offender
treatment program as directed by the Department of Corrections.
After he was imprisoned, Hamrick filed an application to
participate in a sexual offender treatment program. But the
department misplaced this application and Hamricks probation
officer told him to submit a second application. Hamrick delayed
several months before filing this second application, and, by the
time he submitted it, it was too late for him to be admitted to
the treatment program. As a result, Judge Card revoked Hamricks
probation and imposed an additional 9 months of imprisonment.
Hamrick appeals this revocation. We reverse the revocation
because we conclude that the record does not establish that the
Department of Corrections made it sufficiently clear to Hamrick
that his failure to file a second application in a more timely
manner would result in the revocation of his probation.
Judge Cards special condition of probation required
Hamrick to [w]hile incarcerated successfully complete an approved
sexual offender treatment program as directed by the Department
of Corrections. In November 1998, almost immediately upon
incarceration at the Wildwood Correctional Center (WCC), Hamrick
met with probation officer Michael McBride.
McBride explained the treatment options to Hamrick as
part of his general orientation and discussed the options for
treatment. He informed Hamrick that failure to obtain treatment
could result in probation revocation. He gave him a form
entitled Prisoner Notice of Court-Ordered Treatment, which
included a space to indicate whether or not Hamrick would be
willing to participate in court-ordered treatment. Hamrick
marked that he would be willing and indicated he would prefer to
begin treatment after January 2000. The form contained the
following warning:
Failure to participate in or comply with the
treatment plan of a court-ordered
rehabilitation program, if the program is
made available to you, will result in your
institutional probation officer (or designee)
filing a petition to revoke any probation or
mandatory parole included in your sentence
(including imposition of any suspended
sentence). . . .
. . . .
WARNING: Resources within the Department of
Corrections are subject to change. If you
refuse to enter a court-ordered treatment
program when notified that it is available,
you may not be given another opportunity.
Any refusal to enter available court-ordered
treatment, as well as committing disciplinary
infractions or institutional behavior that
cause you to be ineligible, subject you to
the noncompliance procedures outlined above.
You are strongly encouraged to participate in
the court-ordered rehabilitation program at
the earliest time it is made available to
you.
Hamrick completed the application, and Hamrick and
McBride signed the application. The application stated that the
probation officer had ensured that the prisoner read and
understood the consequences of noncompliance as explained in the
warning that we have set out above. The application was faxed to
the treatment program at Meadow Creek Correctional Center. The
usual policy at Meadow Creek is to respond within two months to
the application. But no one ever responded to Hamricks first
application.
The Department of Corrections later transferred Hamrick
to an Arizona facility. His probation officer in Arizona, Judy
Gette, first contacted him in December 2000. She noticed that
Hamrick had a special condition of probation to complete a sex
offender treatment program while in custody and discussed this
with Hamrick. Hamrick signed a Prisoner Notice of Court-Ordered
Treatment form, stated that he was willing to participate in sex
offender treatment, and told Gette that he had an application
pending. Gette checked and was unable to locate Hamricks first
application. She gave him a second application to fill out.
Hamrick stated that [h]e was a little bit hesitant about
applying. In response, Gette testified that she tried to
motivate him and give him some reasons why it would be a good
choice for him to fill out the application and get it submitted.
Gette stated that, as part of her instructions, she would have
told Hamrick that if he did not comply with the application
process, he could face court action. She told him that the
consequences would not be pleasant if he didnt comply. Gette
told Hamrick that he was under a time constraint for turning his
application in because his release date was 29 months away and
they were getting close to the deadline to apply.
Hamrick delayed approximately nine months and finally
submitted the second application on September 1, 2000. Gette
testified that during this nine-month period she did not recall
making any attempt to follow up to determine if Hamrick was going
to submit an application. The Meadow Creek Correctional Center
rejected Hamricks application on November 13, 2000, because
Hamrick had less than 21 months left to serve on his sentence.
Under the conditions of the program, Hamrick was therefore
ineligible for participation in the sex offender treatment
program because it did not leave him with enough time to enter
and complete the program. The application was denied with the
suggestion that Hamrick should complete the Lemon Creek
pretreatment program in order to prepare him for release.
However, the Department of Corrections determined that the Lemon
Creek program did not satisfy the court-ordered treatment
program. Therefore, because Hamrick had been rejected from the
Meadow Creek program, the Department of Corrections filed a
petition to revoke Hamricks probation.
Following a hearing, Judge Card concluded that Hamrick
had violated his probation. Judge Card found that Hamrick had
violated his probation by his tardy submission of the second
application. Judge Card imposed 9 months of Hamricks previously
suspended sentence in order to give Hamrick an opportunity to
complete the Meadow Creek program or, if again rejected by the
Meadow Creek program because there was insufficient time to
complete the program, to allow him to complete the program at
Lemon Creek.
Hamrick raises two arguments in support of his
contention that the State did not present evidence justifying
revocation of his probation. First, Hamrick points out that the
special condition of probation required him to successfully
complete an approved sexual offender treatment program while
incarcerated as directed by the Department of Corrections. He
argues that because the Department of Corrections never offered
him a sexual offender treatment program and he never entered the
program, he did not violate this condition of probation. He also
argues that, if we determine that the Department of Corrections
could require him to participate in the application process, then
the Department did not make it sufficiently clear that he would
violate his condition of probation if he failed to file a second
application by a particular time.
We agree with the State that the Department of
Corrections had the authority, reviewable by the court, to
determine what Hamrick had to do to successfully complete the
sexual offender treatment program while incarcerated. In
Williams v. State1 we stated that where a defendant is ordered to
comply with a treatment program, the defendant must do whatever
the treatment plan requires.2 Furthermore, Hamricks probation
condition itself makes it clear that Hamrick is to complete an
approved sexual offender treatment program as directed by the
Department of Corrections. It seems clear that the Department of
Corrections must have considerable authority to carry out court-
ordered conditions of probation involving prisoners committed to
its care. We therefore conclude that the Department of
Corrections had the authority to require Hamrick to participate
in the application process and to establish reasonable rules
governing the application process.
But where the department exercises its authority to
make rules governing the application process for a court-ordered
sexual offender treatment program, in order to justify revoking a
prisoners probation for failing to comply with the application
process, the department has the duty to make it clear to the
prisoner that his court-ordered probation requires him to comply
with the specific rules of the application process and that he
will be in violation of his conditions of probation if he
violates those rules. We do not believe that the Department of
Corrections gave Hamrick sufficient notice that his actions would
violate his condition of probation.
The probation condition itself did not give Hamrick any
notice that he was required to do anything other than
successfully complete whatever the Department directed him to
participate in. When Hamrick was asked to fill out an
application and apply for a program, he did so. He indicated
that he would participate in treatment. The form he filled out
warned him that if he refused to participate in a treatment
program or comply with a treatment program that was offered to
him, his probation officer would file a petition to revoke. He
was warned that disciplinary infractions could cause him to be
ineligible for treatment and could result in revocation. He was
strongly encouraged to participate in a court-ordered
rehabilitation at the earliest time. But the application form
itself told him that the act of applying did not guarantee his
admission into a program and that he would be notified if he was
accepted. Hamrick was never directly ordered to participate in a
particular program, and therefore he never violated the probation
condition that ordered him to participate in any program he was
ordered to participate in by the Department of Corrections.
In Arizona, Hamrick again signed a statement that he
was willing to participate in sex offender treatment. When
Probation Officer Gette was unable to find his first application,
she asked him to fill out another application. She did tell
Hamrick that if he did not comply with the application process he
could face court action and the consequences would not be
pleasant. She also testified that she told him that he was
getting close to a deadline and needed to apply soon. But when
Hamrick delayed in filing the second application, she indicated
that she did not remember making any effort to follow up to see
if Hamrick was going to reapply.
Admittedly Hamrick was negligent in failing to file a
timely second application. But in order to find a willful
violation, we believe that the department needed to establish
that Hamrick was fully aware that his behavior was in violation
of his conditions of probation and would result in his
revocation. We do not believe that the record is sufficiently
clear to allow us to uphold Hamricks revocation. Hamrick was
never ordered to fill out the application or ordered to fill it
out by a particular time. Hamrick never refused sex offender
treatment. On at least three different occasions, he certified
that he would participate. The Department, as part of the
treatment plan, could require Hamrick to fill out an application
and to submit it by a certain time. But in order to revoke
Hamricks probation for failing to file a timely application, we
believe that the Department of Corrections had the duty to make
Hamricks duties clear to him and to make sure that Hamrick
understood that his failure to comply would violate his
probation. We do not believe that this was done in this case.
We accordingly reverse the superior courts order revoking
Hamricks probation.
REVERSED.
STEWART, Judge, dissenting.
Alaska Statute 12.55.015(a)(10) authorizes a court to
order the defendant, while incarcerated, to participate in or
comply with the treatment plan of a rehabilitative program that
is related to the defendants offense or to the defendants
rehabilitation if the program is made available to the defendant
by the Department of Corrections. As reflected in the judgment
in Hamricks case, Judge Card ordered Hamrick, while incarcerated,
to successfully complete an approved sexual offender treatment
program as directed by the Department of Corrections. As the
court explained above, the State filed a petition to revoke
Hamricks probation because Hamrick did not submit his application
to enter treatment until there was insufficient time remaining on
his sentence to complete the treatment program.
My colleagues conclude that the department had the duty
to make Hamricks duties clear to him and to make sure that
Hamrick understood that his failure to [submit a timely
application] would violate his probation. They also reason that
Hamricks probation condition did not give Hamrick any notice that
he was required to do anything other than successfully complete
the program.
I disagree with both of those conclusions. First, I
conclude that the probation condition Judge Card imposed that
requires Hamrick to complete a sex offender treatment program
notifies Hamrick that he is obliged to enroll in a treatment
program. In Alexander v. State,1 we reviewed a case where the
superior court imposed a probation condition that required the
defendant to take advantage of sex offender ... programs that are
available while in custody.2 The superior court ruled that take
advantage of meant that Alexander was required to enroll in and
fully participate in the treatment program.3 We determined that
this probation condition that Alexander take advantage of
treatment gave Alexander sufficient notice that he had to make
meaningful efforts to participate in the treatment program.4
The condition imposed by Judge Card is clear; it
obliges Hamrick to complete the treatment program. I conclude
that this condition informed Hamrick that he had to enroll in the
program (and complete the forms the Department of Corrections
provided to him on a timely basis).
Because the probation condition itself gave Hamrick
reasonable notice of his obligation to enroll, I disagree with
the my colleagues conclusion that the Department had an
additional duty to make sure that Hamrick understood his
probation might be revoked if he did not complete the
application. Even so, Probation Officer Gette testified that she
took the application to Hamrick in his cell and tried to motivate
him to apply, but Hamrick was hesitant about applying. She urged
him to submit the application but Hamrick said he was not sure
what he wanted to do.
Probation conditions are analogous to contracts between
the court and the defendant; by accepting a probation condition,
the defendant commits to doing something or refraining from
certain behavior.5 Here, Hamrick agreed to complete sex offender
treatment while he was in custody. My colleagues have ruled that
Hamrick was negligent by waiting to submit his application until
it was too late to complete the program, but that the State
needed to prove Hamrick was fully aware that a late application
would result in a probation revocation.
I do not agree that the State must meet that standard.
I believe the State was required to prove a material breach of
the probation condition. Hamrick was obliged to make meaningful
efforts to complete sex offender treatment while incarcerated.
The evidence showed that Hamrick submitted the application months
after it was provided and too late to complete the treatment
program. Judge Card justifiably found that Hamricks late
application resulted in a material breach of his promise to
complete sex offender treatment while in custody.
But even if the State had to prove that Hamrick was
fully aware that his failure to file a timely application would
violate his probation condition, this standard was clearly met:
Judge Card heard testimony that Probation Officer Gette had
explained to Hamrick that he could face court action for failing
to comply with the application process, but Hamrick was hesitant
to even apply for treatment and did not know what he wanted to
do. Furthermore, on the evidence before him, Judge Card could
reasonably find that Hamrick understood that he had to submit an
application to enter treatment. There was no evidence submitted
to the contrary nor any evidence that Hamrick had any different
understanding. On this record, I conclude that Judge Card
properly found that Hamrick violated his probation condition.
_______________________________
1 924 P.2d 104 (Alaska App. 1996).
2 Id. at 107.
1 38 P.3d 543 (Alaska App. 2001).
2 Id. at 544.
3 Id. at 545.
4 Id.
5 See McRae v. State, 909 P.2d 1079, 1083 (Alaska App.
1996).
