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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ALICE JACKSON, | ) |
| ) Court of Appeals No. A-9035 | |
| Appellant, | ) Trial Court Nos. 2KB-04-852 & 853 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2026 January 13, 2006] |
| ) | |
Appeal from the District Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Mark Cucci, Assistant Public
Defender, Kotzebue, and Barbara K. Brink,
Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Alice Jackson pleaded no contest to two counts of minor
consuming alcoholic beverages, AS 04.16.050, under the repeat
offender provision of the statute (subsection (c)). In exchange
for Jacksons pleas to these two counts, the State dismissed seven
other similar pending charges.
Before Jackson formally entered her pleas, Superior
Court Judge Richard H. Erlich warned Jackson and her attorney
that, as one of the conditions of Jacksons probation, he intended
to require Jackson to come to court every other Friday to report
on her progress on probation. The judge then gave Jackson the
chance to withdraw from the plea bargain.
Following a conference between Jackson and her defense
attorney, the defense attorney told Judge Erlich that Jackson was
personally willing to come to court every other week. However,
the attorney also told Judge Erlich that he (the attorney)
believed that the court had no authority to require Jackson to do
this.
The defense attorney argued that, by requiring Jackson
to appear in court at regular intervals and report on her
progress, the judge would violate the doctrine of separation of
powers by setting himself up as a de facto probation officer,
thus improperly infringing on the powers and duties of the
Department of Corrections.
Judge Erlich rejected this argument and imposed the
contested condition of probation. Jackson now appeals the judges
decision.
Under the separation of powers doctrine, [w]hen an act
is committed to executive discretion, the exercise of that
discretion within constitutional bounds is not subject to the
control or review of the courts.1 Jackson argues that the Alaska
Legislature has entrusted oversight of the probation system to
the executive branch, and that Judge Erlich encroached on that
executive authority by ordering Jackson to report to him on a
regular basis. Jackson also argues that the challenged condition
of probation has the effect of relieving the State of its burden
to prove any future violation of probation, by impermissibly
shifting the burden to her to prove (every other Friday) that she
is in compliance with the conditions of her probation.
We disagree with Jacksons premise that the executive
branch has the exclusive authority to supervise probationers. As
the Alaska Supreme Court recognized in Smith v. Department of
Corrections, 872 P.2d 1218, 1227 (Alaska 1994), the probation
function appears to be one of those areas of shared
responsibilities among the executive and judicial branches.
The Alaska statutes dealing with probation confirm this
view of the matter. AS 33.05.010 directs the Commissioner of
Corrections to administer a probation system and enforce the
probation laws in the superior court. And AS 33.05.020(a)
directs the Commissioner to appoint and make available to the
superior court, where necessary, qualified probation officers and
assistants. But AS 33.05.030(a) specifies that [a]ll probation
officers made available to the courts under [AS 33.05] shall be
officers of the superior court and subject to the authority of
the superior court. And, of course, it is the sentencing judge,
and not the Department of Corrections, who determines whether a
defendant should receive probation,2 and who holds the ultimate
authority to establish, modify, or vacate the terms of a
defendants probation.3
Turning to the particular statute that Jackson was
convicted of violating, AS 04.16.050, this Court recognized in
State v. Morgan that the legislative history of this statute
indicates that the legislature wanted to assure that [the] courts
were part of the monitoring process for minors who were convicted
of possessing or consuming alcoholic beverages.4 When this
statute was debated, a representative of the Department of Health
and Social Services told the Senate Judiciary Committee that
monitoring is key to the rehabilitation of minors who consume
alcoholic beverages; [the] goal is to [establish] monitoring and
provide treatment.5 And a representative of the Department of
Law explained to the House Judiciary Committee that [one] way to
instill the idea that offenders may not drink until they become
21 is to place offenders on open-court, unsupervised, informal
probation until they are 21.6 Thus, it appears that the
legislature specifically intended that minors convicted of
violating AS 04.16.050 be placed on probation supervised by the
court.
We further note that, for minors convicted of consuming
alcoholic beverages, it appears that there would be no monitoring
of their probation if the sentencing court did not perform this
task. Violation of AS 04.16.050 is a misdemeanor, and the
prosecution takes place in the district court. The probation
statutes found in AS 33.05 uniformly speak of the Department of
Correctionss duty to provide probation supervision services to
the superior court. There is no provision of AS 33.05 that
directs the Department to monitor the probation of misdemeanor
offenders who are convicted in the district court. Thus, even if
we assumed, for purposes of argument, that the probation statutes
presented an arguable conflict of authority between the
sentencing judge and the Department of Corrections in superior
court cases, there is no such conflict in district court cases.
(The judge in Jacksons case, Judge Richard H. Erlich,
is a superior court judge; but the charges against Jackson were
filed in the district court, and Judge Erlich was functioning as
a district court judge under the authority of Alaska
Administrative Rule 24(c).)
Finally, even if Jackson were subject to supervision by
a probation officer employed by the Department of Corrections,
Jackson points to no authority supporting her assertion that a
sentencing court violates the separation of powers doctrine by
requiring a defendant to report to the court regarding the
defendants progress on probation. The legislature has vested the
executive branch with authority to administer the probation
system. Although this has generally been interpreted to mean
that probation officers can require probationers to report to
them on a regular basis, Jackson has not shown that an order
directing a probationer to also report to their sentencing judge
encroaches on the Departments administrative function.
For all of these reasons, we reject Jacksons contention
that Judge Erlichs decision to personally monitor Jacksons
probation on a bi-weekly basis violated the doctrine of
separation of powers.
Jacksons final claim is that the challenged condition
of probation impermissibly relieved the State of its burden to
prove a violation of probation, and instead shifted the burden to
Jackson to prove that she was abiding by the conditions of
probation.
Jackson did not raise this claim in district court. In
any event, the claim is without merit. Judge Erlich expressly
stated at Jacksons sentencing hearing that, even though he was
going to require Jackson to make regular reports on her progress,
any petition to revoke Jacksons probation would have to be
initiated by the State, not by the court. Moreover, Judge Erlich
never suggested that he intended to relieve the State of its
normal burden of proving any alleged violation of probation.
The judgement of the district court is AFFIRMED.
_______________________________
1Public Defender Agency v. Superior Court, 534 P.2d 947, 950
(Alaska 1975).
2AS 12.55.080; AS 12.55.090(a).
3AS 12.55.100; AS 12.55.101; AS 12.55.090(b); Hester v.
State, 777 P.2d 217, 218-19 (Alaska App. 1989).
4State v. Morgan, 111 P.3d 360, 362 (Alaska App. 2005).
5Id.
6Id.
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