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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8778 | |
| Appellant, | ) Trial Court No. 4FA-03-3452 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| GAVIS V. THOMAS, | ) |
| ) | |
| Appellee. | ) [No. 2021 December 16, 2005] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes and David W. M rquez,
Attorneys General, Juneau, for the Appellant.
David K. Allen, Assistant Public Advocate,
Fairbanks, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Gavis V. Thomas was on felony probation, and one of his
conditions of probation required him to submit to searches for
controlled substances. During one such search, a police officer
found crack cocaine in Thomass wallet, and this discovery led to
Thomass indictment for fourth-degree controlled substance
misconduct.
Following his indictment, Thomas asked the superior
court to suppress the cocaine found in his wallet. Thomas argued
that even though the search was conducted within the bounds of
his probation condition, the judge who sentenced him for the
prior felony never should have imposed that condition of
probation in the first place. Thomas noted that his prior
convictions were for first-degree vehicle theft and for driving
while intoxicated after consuming alcoholic beverages (not
drugs). Because of this, Thomas argued that his earlier
sentencing judge had lacked a proper basis for imposing a
probation condition that authorized searches for controlled
substances.
Superior Court Judge Charles R. Pengilly agreed with
Thomas; he retroactively struck the condition of probation, and
he suppressed the cocaine found in Thomass wallet. The State now
appeals the superior courts decision.
The State first argues that defendants in Thomass
position should not be allowed to attack their conditions of
probation after the fact. The State asserts that a defendant who
fails to challenge a condition of probation in a direct appeal of
the underlying conviction has no right to challenge the condition
later.
The State argues in the alternative that, even if
Thomas had the right to challenge his condition of probation in
the current proceedings, Judge Pengilly was wrong to strike down
the challenged condition of probation.
We need not decide the issue presented in the States
first argument because we agree with the States second argument.
The meaning of the direct relationship test adopted by
the Alaska Supreme Court in Roman v. State
In Roman v. State, 570 P.2d 1235, 1243
(Alaska 1977), the Alaska Supreme Court held that a
sentencing judge should not require a probationer to
submit to warrantless searches for drugs, weapons, or
other types of items unless there is a direct
relationship [between those] searches [and] the nature
of the crime for which the [probationer] was convicted.
The question presented in this appeal is
whether the facts of Thomass case (at the time of his
original sentencing in June 2000) provided a sufficient
basis for his earlier sentencing judge to impose the
challenged condition of probation. But the underlying
issue is how broadly or narrowly we should interpret
Romans requirement of a direct relationship between the
authorized search and the nature of the [defendants]
crime.
In previous cases, we have adopted a broad
reading of this language. We have upheld conditions of
probation that were related, not to the particular
crime for which the defendant was being sentenced, but
rather to the underlying causes of the defendants
criminal behavior as revealed by the defendants history
and background. Judge Pengilly was aware of our prior
decisions in this area, but he concluded that our prior
decisions were inconsistent with the test formulated by
the supreme court in Roman, and he concluded that he
was obliged to follow Roman.
Given a narrow reading, Romans requirement of
a direct relationship between the authorized search and
the nature of the [defendants] crime might reasonably
be interpreted to mean that a sentencing judge could
not impose a condition of probation allowing searches
for drugs unless the crime for which the defendant was
being sentenced involved the possession, use, or sale
of drugs.
But two years after Roman, in Sprague v.
State, 590 P.2d 410 (Alaska 1979), the supreme court
indicated that it was employing a broader definition of
the nature of the [defendants] crime. The defendant in
Sprague was convicted of burglary, and his sentencing
judge imposed a condition of probation that authorized
searches for drugs.1 The supreme court invalidated the
search condition, but the court did not base its ruling
on the fact that the elements of burglary do not
require proof of drug possession or drug use. Instead,
the court employed a broader test. The court declared
that Spragues condition of probation was invalid
because (1) Sprague was not convicted of a drug
offense, and (2) there was no showing that Sprague was
addicted to drugs, or that he had committed the
burglary in order to obtain money to buy drugs.2
In other words, the supreme courts
explanation of its decision in Sprague demonstrates
that the reference in Roman to the nature of the
[defendants] crime encompasses more than simply the
elements of that crime. Rather, the supreme court
meant to authorize conditions of probation that
addressed the causes of, or the motivations for, the
defendants criminal behavior. The true test is the
alternative formulation contained in the Roman opinion
itself: a condition of probation must be reasonably
related to the rehabilitation of the offender and the
protection of the public[,] and must not be unduly
restrictive of [the offenders] liberty. Roman, 570
P.2d at 1240.
This is how we have interpreted and applied
Roman. For example, in Allain v. State, 810 P.2d 1019
(Alaska App. 1991), this Court upheld a probation
condition that required the defendant to abstain from
alcoholic beverages. We acknowledged that the record
disclose[d] no direct link between [the defendants]
drinking and his current offense, but our review of the
record convinced us that the sentencing judge could
reasonably conclude that the defendants chances for
rehabilitation would be enhanced by the challenged
condition of probation.3
Similarly, in Miyasato v. State, 892 P.2d 200
(Alaska App. 1995), this court upheld a probation
condition requiring the defendant to undergo sex
offender therapy. Even though the defendant was not
being sentenced for a sex crime (he was convicted of
non-residential burglary), we concluded that the
defendants past record offered ample basis for the
sentencing judge to conclude that sex offender
treatment was integrally related to [the defendants]
rehabilitation and to the future protection of the
public.4
For these reasons, we conclude that Judge
Pengilly adopted too narrow a reading of Roman. Even
though Thomass prior offenses were not drug offenses
per se, the challenged condition of probation would be
adequately grounded if, based on Thomass record, his
sentencing judge Superior Court Judge Mark I. Wood
could reasonably have concluded that (1) Thomas had a
problem with the abuse of controlled substances, and
that (2) Thomass continued abuse of controlled
substances would impede his rehabilitation or would
contribute to renewed criminal behavior.
Did Thomass record at the time of his sentencing
support the judges decision to impose the challenged
condition of probation?
The three pre-sentence reports on Thomas
(i.e., the report prepared in 2000 for Thomass
sentencing by Judge Wood, plus two prior reports from
1997 and 1993) show that Thomas has a history of drug
use. In 1992, Thomas tested positive for marijuana.
In 1995 and again in 1996, he tested positive for
cocaine. And in 1997, when Thomas was arrested for one
of his previous DWI offenses, he was found in
possession of a ball of aluminum foil containing a
white powder residue.
It is true, as Thomas points out, that he has
never been convicted of a drug offense. (All three of
Thomass DWI convictions were based on his consumption
of alcoholic beverages.) And when Judge Wood sentenced
Thomas in 2000, Thomass last known drug use was either
in May 1996 or April 1997. Nevertheless, given Thomass
history, it was reasonable for Judge Wood to conclude
that a condition of probation allowing drug searches
would further both Thomass rehabilitation and the
protection of the public.
For these reasons, Judge Pengilly erred when
he retrospectively struck down this condition of
Thomass probation and suppressed the cocaine found in
Thomass wallet.
Conclusion
The judgement of the superior court is
REVERSED. The challenged condition of probation is
lawful, and the State may prosecute Thomas for
possession of the cocaine found in his wallet.
_______________________________
1Sprague, 590 P.2d at 417.
2Id. at 418.
3Allain, 810 P.2d at 1022.
4Miyasato, 892 P.2d at 202.
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