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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMES W. MARUNICH, | ) |
| ) Court of Appeals No. A-8979 | |
| Appellant, | ) Trial Court Nos. 3AN-02-8107 Cr |
| ) and 3AN-02-10284 Cr | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2077 December 22, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink and
Quinlan Steiner, Public Defenders, Anchorage,
for the Appellant. Timothy W. Terrell,
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.
On November 18, 2003, James W. Marunich was sentenced
for two separate robberies. Marunich was ordered to serve a
total of 6 years in prison, followed by 4 years on probation.
One week later, the superior court issued its written
judgements in Marunichs cases. Both of these written judgements
included twelve general conditions of probation that had not
previously been mentioned by the sentencing judge. The question
presented in this appeal is whether the superior court illegally
increased the severity of Marunichs sentence by adding these
conditions of probation.
For the reasons explained here, we conclude that some
of these added conditions of probation merely specify certain
inherent aspects of being a probationer under the supervision of
the superior court and the Department of Corrections. These
conditions do not constitute an increase in Marunichs sentence.
However, the remainder of the added conditions go beyond the
inherent aspects of probation. Accordingly, we vacate these
conditions because they constitute an illegal increase in
Marunichs sentence.
The double jeopardy issue raised in Marunichs case
In advance of Marunichs sentencing, the
Department of Corrections prepared a pre-sentence
report which recommended that Marunich be subject to
ten special conditions during his term of probation.
These ten are the only conditions of probation
mentioned in the pre-sentence report.
At the sentencing hearing, the parties
discussed the Departments proposed special conditions
of probation. Marunichs attorney objected to the
wording or the content of several of these special
conditions, and the superior court modified five of the
special conditions in response to the defense attorneys
suggestions. No one mentioned any other general
conditions of probation.
One week after the sentencing hearing, the
superior court issued its written judgements in
Marunichs two cases. These written judgements contain
twelve general conditions of probation that no one had
mentioned before.
(In addition, although the parties have not
flagged this problem, the written judgements contain
two additional special conditions of probation Special
Conditions 1 and 2 that are not among the ten special
conditions mentioned in the pre-sentence report and
discussed at the sentencing hearing.)
As a general rule, when the terms of a
defendants sentence as stated in the courts written
judgement differ from the terms of the sentence
announced orally by the sentencing judge at the
defendants sentencing hearing, the oral sentence
controls. Herrin v. State, 93 P.3d 477, 478 (Alaska
App. 2004); Graybill v. State, 822 P.2d 1386, 1388
(Alaska App. 1991). One of the chief rationales of
this rule is to enforce the constitutional prohibition
on after-the-fact increases in a defendants sentence.
We explained this point in Alvin v. State, 42
P.3d 1156 (Alaska App. 2002):
The double jeopardy clause generally forbids
a court from reconsidering a sentence and
altering it to the defendants disadvantage.
If the law allowed the court to amend a
written judgement whenever the sentencing
judges original description of the defendants
sentence was ambiguous or unclear, or
whenever for any other reason the court later
decided that the written judgement did not
accurately describe the intended sentence,
this power could easily serve as a screen for
a judges decision to reconsider the
defendants sentence and increase it. To make
sure that the power of amendment is not
misused in this fashion, ... Shagloak [v.
State, 582 P.2d 1034 (Alaska 1978),]
established two rules to restrict it.
First, when the court and the parties
seek to ascertain the sentencing judges
intention, they are confined to the
contemporaneous sentencing record. Neither
the State nor the court can rely on the
sentencing courts subsequent explanation of
its subjective purpose. Second, any
reasonable debate regarding the sentencing
judges intention must be resolved in favor of
the defendant. The written judgement can be
amended to reflect a more severe sentence
only when the contemporaneous record
establishes beyond a reasonable doubt that
the sentencing judge intended to impose this
sentence.
Alvin, 42 P.3d at 1159 (footnotes and
internal quotations omitted).
After Marunich realized that his
written judgements contained conditions of
probation that had not been proposed in the
pre-sentence report or discussed at the
sentencing hearing, he filed a motion under
Alaska Criminal Rule 35(a), asking the
superior court to correct the written
judgements by deleting these conditions of
probation. Marunich argued that the
additional conditions of probation
constituted an improper after-the-fact
increase in his sentence.
The superior court ruled that the
general conditions of probation set forth in
the written judgements were impliedly part
and parcel of Marunichs agreement to be
placed on supervised probation that
Marunichs probation would be meaningless
without these general conditions. On this
basis, the court declined to modify the
written judgements.
(As explained above, the written
judgements also contain two special
conditions of probation that are not among
the ten special conditions proposed at
Marunichs sentencing hearing. Marunich did
not mention this problem in his Rule 35(a)
motion, and the superior court did not
address this problem in its ruling.)
The conditions of probation that are at issue in this
appeal
In Alaska, probationers have an implicit
obligation to obey the law, and a probationers
violation of the law can constitute good cause to
revoke their probation, even when that violation of law
does not run afoul of any of the probationers specific
conditions of probation. See Wozniak v. State, 584
P.2d 1147, 1148 (Alaska 1978); Benboe v. State, 738
P.2d 356, 359-360 (Alaska App. 1987); Gant v. State,
654 P.2d 1325, 1326-27 (Alaska App. 1982).
Marunich now concedes that three of his
twelve general conditions of probation are valid
because they merely restate his obligation to obey the
law: General Condition No. 5 (At no time have ...
control [of] a concealed weapon, a firearm, or a
switchblade or gravity knife.); General Condition No. 7
(Make a reasonable effort to support your legal
dependents.); and General Condition No. 9 (Comply with
all municipal, state[,] and federal laws.).
In addition, two more of Marunichs general
conditions of probation are either duplicative of, or
are rendered superfluous by, the special conditions of
probation that Marunich concedes were validly imposed.
General Condition No. 3 requires Marunich to
[m]ake a reasonable effort to secure and maintain
steady employment, and directs Marunich to notify a
probation officer ... as soon as possible should he
become unemployed. This condition is essentially
duplicative of Special Condition No. 11, which requires
Marunich to [m]aintain verifiable full-time employment,
unless engaged full time in approved treatment and/or
education, and to provide proof of employment upon
request by [his] probation/parole officer.
General Condition No. 8 directs Marunich to
refrain from consum[ing] intoxicating liquor to excess.
This general condition is superfluous in Marunichs
case, because Special Condition No. 3 prohibits
Marunich from us[ing] or possess[ing] alcohol, and
directs him not [to] enter or remain inside [] places
where [alcohol] is the main item for sale.
Finally, another of Marunichs general
conditions of probation (No. 11) is partially covered
by his special conditions of probation.
General Condition No. 11 directs Marunich to
submit [upon the request of a probation officer] to a
search of [his] person, personal property, residence[,
or] any vehicle in which [he] may be found for the
presence of contraband. This general condition of
probation is analogous to Special Condition No. 8,
which directs Marunich to [s]ubmit to a search of his
person, personal property, residence, vehicle, or any
vehicle [of] which [he] has control, for the presence
of narcotic, hallucinogenic, stimulant, depressant,
amphetamine, barbiturate, or other drugs, drug
paraphernalia[,] or alcohol, at the request of the
probation/parole officer or any law enforcement
officer.
The searches authorized by Special Condition
No. 8 are limited to drugs and alcohol, so Special
Condition No. 8 is narrower than General Condition No.
11, which purports to authorize searches for any type
of contraband. Moreover, Special Condition No. 8 is
narrower than General Condition No. 11 in one other
respect: Special Condition No. 8 authorizes searches
of vehicles owned by Marunich or under his control,
while General Condition No. 11 purports to authorize
searches of any vehicle in which Marunich may be found.
But to the extent that General Condition No. 11
authorizes searches for drugs and alcohol, and to the
further extent that it is limited to vehicles owned or
controlled by Marunich, General Condition No. 11 is
redundant of Special Condition No. 8.
(We note that Special Condition No. 8 is
broader than General Condition No. 11 in one respect:
Special Condition No. 8 purports to require Marunich to
submit to searches, not just at the request of his
probation officer, but at the request of any law
enforcement officer. This portion of Special Condition
No. 8 is illegal. See Roman v. State, 570 P.2d 1235,
1242 n. 20 (Alaska 1977).)
Thus, of the twelve general conditions of
probation that appear in Marunichs written judgements,
seven are actually in dispute in this appeal:
$ General Condition No. 1, which requires Marunich
to report to the probation office of the Department of
Corrections on the business day following his release
from prison;
$ General Condition No. 2, which requires Marunich
to secure written permission from a probation officer
before changing his employment or his residence, or
before leaving the region of his residence;
$ General Condition No. 4, which requires Marunich
to report in person to his probation officer between
the first and tenth of every month (or as otherwise
directed), and to complete a written report if his
probation officer happens to be out of the office when
Marunich comes to report;
$ General Condition No. 6, which forbids Marunich
from knowingly associating with any person who is on
probation or parole, or who has been convicted of a
felony, unless Marunich obtains permission from a
probation officer;
$ General Condition No. 10, which requires Marunich
to report all purchases, sales, and trades of motor
vehicles;
$ General Condition No. 11, to the extent that it
authorizes broader searches than the searches for drugs
and alcohol authorized by Special Condition No. 8; and
$ $ General Condition No. 12, which requires
Marunich to [a]bide by any special instructions given
by the [sentencing] court or any of its duly authorized
officers, including probation officers of the
Department of Corrections.
In addition, as we explained above, Marunichs
attack on these general conditions of his probation
also raises a question concerning the validity of
Special Conditions Nos. 1 and 2 because these special
conditions are not among the ten that were presented
during Marunichs sentencing proceedings.
$ Special Condition No. 1 requires Marunich to
immediately submit to a medical analysis of his blood
or urine for the presence of controlled substances when
directed to do so by a probation officer.
$ Special Condition No. 2 requires Marunich to allow
a health care professional to collect blood or oral
swab samples from him for the [state] DNA Registration
System, and it further requires Marunich to provide
oral [swab] samples when requested by a correctional,
probation, parole[, or] peace officer.
Why we conclude that the superior courts post-
sentencing imposition of General Condition No. 11 and
Special Condition No. 1 was an illegal increase in
Marunichs sentence, thus violating his rights under the
double jeopardy clause
Although the prohibition against double
jeopardy generally forbids an after-the-fact increase
in a defendants sentence, certain types of sentencing
provisions can be altered to the defendants detriment
after the sentencing hearing. We speak here of
sentencing provisions which, by nature, are conditional
or open-ended.
For example, if the sentencing court suspends
some or all of the defendants term of imprisonment, the
double jeopardy clause does not forbid the court from
later ordering the defendant to serve the previously
suspended sentence if the defendant violates the
conditions of probation. United States v. DiFrancesco,
449 U.S. 117, 137; 101 S.Ct. 426, 437; 66 L.Ed.2d 328
(1980); Reyes v. State, 978 P.2d 635, 639 (Alaska App.
1999).
Similarly, when an Alaska court places a
defendant on probation, AS 12.55.090(b) authorizes the
court to later revoke or modify any condition of [the
defendants] probation, or to change the period of [the
defendants] probation (within the 10-year statutory
limit).
Of course, a sentencing court may sometimes
exercise this authority in the defendants favor for
example, by revoking a previously imposed condition of
probation, or by shortening the defendants term of
probation. But the sentencing court can also exercise
this authority to the defendants detriment if the State
proves that the defendant has violated the conditions
of probation, or if the State proves a significant
change of circumstances i.e., any other
post-sentencing conduct that establishes a substantial
reason to conclude that the defendants current
conditions of probation are not adequately ensuring the
defendants rehabilitation or adequately protecting the
public. Edwards v. State, 34 P.3d 962, 969 (Alaska
App. 2001). And because the legislature intended for
probation to be modifiable in this way, such a post-
sentencing alteration of the conditions or term of
probation does not violate the double jeopardy clause,
even when it is to the defendants detriment. Id., 34
P.3d at 967-68.
Marunich acknowledges this, but he argues
that the superior court violated AS 12.55.090(b) as
construed in Edwards by imposing the twelve general
conditions of probation when there was no proof that
Marunich had violated his pre-existing conditions of
probation (i.e., Special Conditions 3 through 12) or
that Marunich had engaged in any other post-sentencing
conduct that would constitute a significant change of
circumstances.
For the reasons explained in the next section
of this opinion, we conclude that the superior court
violated Marunichs rights when the court imposed
General Conditions 1, 2, 4, 6, 10, and 12 but not his
rights under the double jeopardy clause. Rather, the
superior court violated Marunichs due process rights to
notice of the proposed conditions of probation and an
opportunity to be heard regarding them.
We do, however, agree with Marunich that the
superior court violated his rights under the double
jeopardy clause when the court imposed General
Condition No. 11, to the extent that this condition
authorizes searches that were not already authorized by
Special Condition No. 8.
Under Alaska law, a sentencing court must
expressly authorize, and must find a case-specific
basis for, any condition of probation that requires the
probationer to submit to warrantless searches for
drugs, weapons, or other items. Roman v. State, 570
P.2d 1235, 1243 (Alaska 1977); State v. Thomas, 133
P.3d 684, 685 (Alaska App. 2005). At Marunichs
sentencing hearing, the superior court found good
reason to require Marunich to submit to the searches
specified in Special Condition No. 8. But to the
extent that General Condition No. 11 purports to
authorize searches beyond the scope of Special
Condition No. 8, the post-sentencing imposition of
General Condition No. 11 constitutes an improper after-
the-fact alteration of Marunichs sentence to his
detriment, in violation of Edwards.
For the same reason, we conclude that the
post-sentencing imposition of Special Condition No. 1
(which requires Marunich to submit to medical testing
of his blood or urine for the presence of controlled
substances) violated Marunichs rights under Edwards.
At first glance, this same objection
seemingly applies with equal force to Special Condition
No. 2. Like General Condition No. 11 and Special
Condition No. 1, Special Condition No. 2 was imposed
after Marunichs sentencing, and it authorizes the
seizure of substances (blood and oral samples) from
Marunichs body.
But Special Condition No. 2 is mandated by
statute. Under AS 12.55.100(d), whenever a court
orders probation for a defendant convicted of an
offense covered by Alaskas DNA registration system (see
AS 44.41.035), the court shall order the defendant, as
a condition of probation, to submit to the collection
of (1) [blood and/or oral] samples when requested by a
health care professional acting on behalf of the state
to provide the sample or samples; or (2) an oral sample
when requested by a juvenile or adult correctional,
probation, or parole officer, or a peace officer.
It is true that the superior court neglected
to impose this condition of probation at Marunichs
sentencing hearing. But Marunichs sentence was illegal
without this condition. Thus, the superior court was
authorized under Criminal Rule 35(a) to amend the
judgement to include this mandated condition of
probation.1
Nevertheless, an examination of AS
12.55.100(d) shows that Special Condition No. 2 is
worded in a potentially misleading way.
As currently worded, Special Condition No. 2
requires Marunich to [p]rovide blood and oral samples
for the DNA Registration System when requested to do so
by a health care professional acting on behalf of the
state, and it further requires Marunich to provide oral
samples when requested by a correctional, probation,
parole[, or] peace officer. But under AS 12.55.100(d),
both of the two types of tissue sampling described in
Special Condition No. 2 that is, (1) the collection of
blood or oral swab samples by a health care
professional, and (2) the collection of oral swab
samples by a corrections officer, a probation officer,
or a peace officer may only be performed for the
limited purpose of providing data for the state DNA
registration system.
Thus, the phrase for the DNA Registration
System should appear twice in Special Condition No. 2
both in the middle of the first clause and in the
middle of the second clause to clarify that this
phrase limits all of the tissue sampling authorized by
this special condition of Marunichs probation.
Specifically, the second clause of Special Condition
No. 2 should read provide oral samples for the DNA
Registration System when requested by a correctional,
probation, parole[, or] peace officer. We direct the
superior court to modify the wording of Special
Condition No. 2 in this manner.
Why we conclude that the superior courts post-
sentencing imposition of General Conditions 1, 2, 4, 6,
10, and 12 poses no double jeopardy problem, but does
pose a due process problem
As we described in the preceding section of
this opinion, the double jeopardy clause does not
forbid the post-sentencing alteration of those facets
of a defendants sentence which are, by nature,
conditional or open-ended. And, as we explained in
Reyes v. State, the question of whether a particular
facet of the defendants sentence is mutable hinges on
the provisions of state law defining that aspect of
sentencing:
[In United States v.] DiFrancesco [, the
United States Supreme Court] held that, for
purposes of the federal double jeopardy
clause, a criminal sentence does not have the
same finality as a verdict of acquittal.
Thus, ... legislatures may grant courts
significant power to re-examine criminal
sentences and modify them to the defendants
detriment without defeating the defendants
legitimate expectations of finality. 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 (footnotes omitted).
When we examine the Alaska statutes
and court decisions defining probation and
the authority of the Department of
Corrections to supervise probationers, we
conclude that the remaining six general
conditions of probation in Marunichs case
General Conditions 1, 2, 4, 6, 10, and 12
are the type of supervisory requirements that
can permissibly be imposed by the Department,
either at or after sentencing.
Alaska law specifically, AS
33.05.080(2) defines probation as a
procedure under which a defendant, found
guilty of a crime ... , is released by the
superior court subject to conditions imposed
by the court and subject to the supervision
of the probation service [of the Department
of Corrections] as provided in [AS 33.05].
Thus, any offender who is placed on probation
by the superior court is automatically
subject to the supervision of the Department
of Corrections.
AS 33.05.040 defines the duties of
probation officers with respect to the
persons under their supervision. This
statute declares that a probation officer
shall keep informed concerning the conduct
and condition of each probationer under the
[officers] supervision2 and shall use all
suitable methods, not inconsistent with the
conditions imposed by the court, to aid
probationers and to bring about improvements
in their conduct and condition.3
On this point, it is important to
distinguish (a) the sentencing courts power
to impose conditions of probation from (b)
the Department of Corrections statutory
authority to supervise a defendants
probation.
Many states, as well as the federal
government, have statutes or court rules that
contain lists of mandatory conditions of
probation (ones that a sentencing court must
impose), supplemented by lists of permitted
or suggested conditions of probation. See,
for example, Section 5B1.3 of the United
States Sentencing Guidelines (found in Title
18 of the United States Code).
Alaska law, on the other hand, does
not go to these lengths to define a
sentencing courts authority to impose
conditions of probation. AS 12.55.080 simply
states that the court can place the defendant
on probation ... upon the terms and
conditions [that] the court considers best.
And, for the most part, the only limitation
on a sentencing courts authority to impose
conditions of probation is the test announced
by our supreme court in Roman v. State: 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. 570 P.2d at 1240.
AS 12.55.100(a) does list six
specific conditions of probation that a
sentencing court is permitted to impose. But
this has never been interpreted to be an
exclusive list. Many of the provisions of AS
12.55.100(a) were enacted in response to
appellate court decisions holding or
suggesting that a sentencing court does not
have the authority to impose such a condition
of probation in the absence of authorizing
legislation.4
Similarly, when the Alaska
Legislature defined the Department of
Corrections supervisory authority over
probationers, the legislature used open-ended
language rather than specifying discrete
powers: AS 33.05.040(2) simply declares that
probation officers shall keep informed
concerning the conduct and condition of each
probationer under [their] supervision, while
AS 33.05.040(3) states that probation
officers shall use all suitable methods, not
inconsistent with the conditions imposed by
the court, to aid probationers and to bring
about improvements in their conduct and
condition.
Just as the Alaska Supreme Court
has recognized that the superior court has
extensive authority under AS 12.55.080 to
fashion and impose conditions of probation,
the court has also recognized that probation
and parole officers have extensive inherent
authority in the day-to-day management of the
probationers and parolees under their
supervision.
In Soroka v. State, 598 P.2d 69, 71
(Alaska 1979), the supreme court upheld a
probation officers warrantless entry into a
probationers residence as a supervisory
visit. That is, the supreme court appears to
have recognized a probation officers common-
law authority to non-forcibly enter a
probationers residence for purposes of
supervising the probationer. (Federal courts
have likewise recognized a probation officers
inherent authority to conduct home visits.5)
And in Division of Corrections v.
Neakok, 721 P.2d 1121, 1130 (Alaska 1986),
the supreme court ruled that the State of
Alaska can be held civilly liable if the
Department of Corrections is negligent in its
supervision of parolees that is, if
corrections personnel fail to exercise due
care in supervising parolees and in
protecting foreseeable victims from parolees
who the Department knows, or reasonably
should know, to be dangerous.6 The supreme
courts holding in Neakok implicitly rests on
the premise that the Department of
Corrections has extensive authority to check
on, and to regulate the conduct of, the
offenders entrusted to the Departments
supervision.
Similarly, in Dayton v. State, 120
P.3d 1073 (Alaska App. 2005), this Court
implicitly recognized the discretionary
authority of probation officers to regulate
the conduct of the offenders entrusted to
their supervision.
The defendant in Dayton challenged
the legality of one of his conditions of
probation a condition that required him to
[a]bide by any special instructions given [to
him] by ... probation officers. 120 P.3d at
1084. Dayton argued that this condition of
probation constituted an improper delegation
of authority to the Department of Corrections
because, theoretically, a probation officers
instruction might violate Daytons
constitutional rights, or because the
instruction might place such a substantial
burden on Dayton as to amount to a new
condition of probation, outside the ones
imposed by the sentencing court. Id.
We upheld this condition of
probation because, despite the wording of the
condition, Dayton retained the right to
challenge any probation officers instruction
that was not appropriate and well adapted to
fulfilling the objectives of probation, or
any instruction that Dayton believed
abridge[d] his rights or exceed[ed] the
authority of the Department of Corrections.
Id. at 1084. Implicit in our ruling is the
premise that probation officers normally have
considerable latitude in directing the
behavior of the probationers under their
supervision.
As we noted above, AS 33.05.080(2)
states that all defendants placed on
probation by the superior court are subject
to the supervision of the probation service
[of the Department of Corrections]. And AS
33.05.040 the statute that governs the
duties and authority of probation officers
states that probation officers shall keep
informed concerning the conduct and condition
of each probationer under [their] supervision
and shall use all suitable methods, not
inconsistent with the conditions imposed by
the court, to aid probationers and to bring
about improvements in their conduct and
condition.
Neither we nor the Alaska Supreme
Court has explicitly construed these statutes
regarding the scope of a probation officers
authority to direct the conduct of the
probationers assigned to them. However, the
expansive wording of AS 33.05.040 and the
decisions in Soroka, Neakok, and Dayton
suggest that probation officers have a
certain inherent authority to supervise and
control the conduct of probationers.
This is not to say that AS
33.05.040 should be interpreted to give
probation officers the same authority that a
judge has when imposing conditions of
probation at a defendants sentencing. For
example, even though probation officers had
the authority at common law to order a
probationer to submit to warrantless
searches,7 Alaska law now guarantees a
greater level of protection to probationers
and parolees: the authority to conduct
warrantless searches must be explicitly
granted, on a case-by-case basis, by the
sentencing judge or the Parole Board.8
Nevertheless, in furtherance of the
Department of Corrections statutory duty to
supervise felony probationers, we conclude
that AS 33.05.040 gives Alaska probation
officers a certain degree of authority to
require, restrict, or prohibit particular
conduct on the part of probationers even
when these requirements, restrictions, and
prohibitions are not expressly included in
the conditions of probation imposed by the
judge at sentencing.
Marunichs case does not require us
to define the precise scope of this
authority. Instead, we limit our attention
to the requirements and restrictions that
Marunich challenges on appeal in particular,
the requirements that he keep the Department
apprised of his whereabouts and his
associates, that he report to the Department
on a regular basis, and that he inform the
Department of significant changes in his
circumstances. We conclude that these are
the types of conditions that a probation
officer could place on Marunich even in the
absence of an express court order.
General Condition No. 1 requires
Marunich to report to the probation office of
the Department of Corrections on the business
day following his release from prison.
General Condition No. 2 requires Marunich to
secure written permission from his probation
officer before changing his employment or his
residence, or before leaving the region of
his residence. General Condition No. 4
requires Marunich to report in person to his
probation officer between the first and tenth
of every month (or as otherwise directed),
and to complete a written report if his
probation officer happens to be out of the
office when Marunich comes to report.
General Condition No. 6 forbids Marunich from
knowingly associating with any person who is
on probation or parole, or who has been
convicted of a felony, unless Marunich
obtains permission from his probation
officer. General Condition No. 10 requires
Marunich to report all purchases, sales, and
trades of motor vehicles. And General
Condition No. 12 requires Marunich to abide
by any special instructions given by the
sentencing court or the probation officers of
the Department of Corrections.
We hold that all of these
requirements, restrictions, and prohibitions
fall within the ambit of the Department of
Corrections statutory duty and authority to
supervise probationers. Thus, Marunich would
have no double jeopardy complaint if the
Department had imposed these conditions on
Marunich when he left prison and commenced
his probation. It follows that Marunichs
double jeopardy rights were not violated when
the superior court added these conditions in
its written judgement following the
sentencing hearing.
This is not to say, however, that
the superior court followed proper procedure
when it imposed these conditions.
Under AS 33.05.040(3), conditions
of probation imposed by the Department of
Corrections must not be inconsistent with the
conditions imposed by the sentencing court.
Moreover, these conditions must satisfy the
Roman test that is, they must be reasonably
related to the rehabilitation of the offender
and the protection of the public, and they
must not be unduly restrictive of [the
offenders] liberty.9 In addition, conditions
of probation must be sufficiently precise and
unambiguous to inform the probationer of the
conduct that [he must engage in or refrain
from] so that he may retain his liberty.
Rich v. State, 640 P.2d 159, 162 (Alaska App.
1982).
Accordingly, probationers have a
due process right to reasonable advance
notice of any conditions imposed by their
probation officer, as well as a right to be
heard that is, a right to seek judicial
review if the probationer believes that a
proposed condition is unlawful or
unreasonable. See Dayton v. State, 120 P.3d
1073, 1084 (Alaska App. 2005) (holding that
probationers have the right to seek judicial
review of any special instruction given by
their probation officer pursuant to the
conditions of probation). See also Smith v.
Department of Corrections, 872 P.2d 1218,
1224 (Alaska 1994) (holding that parolees
have due process rights with respect to
conditions of parole imposed by the Parole
Board).
Generally speaking, if the
Department of Corrections (or the sentencing
court itself) proposes conditions of
probation in advance of, or at, the
defendants sentencing hearing, the defendant
will have a chance to respond to the proposed
conditions, and thus the defendants due
process rights will be satisfied.
Alternatively, if the Department of
Corrections proposes conditions of probation
following the defendants sentencing, in
furtherance of its duty and authority to
supervise the defendant, the defendant has
recourse to the superior court. The
defendant can seek court review of the
Departments requirements, and can ask the
court to modify or set aside any unlawful or
unreasonable requirement under
AS 12.55.090(b) the statute that authorizes
the court to revoke or modify any condition
of probation.
This statute not only empowers the
superior court to revoke or modify conditions
of probation that the court itself has
previously imposed, but also empowers the
court to revoke or modify conditions imposed
by the Department of Corrections. As the
Arizona Court of Appeals explained when it
addressed Arizona Criminal Rule 27.3,
Arizonas counterpart to AS 12.55.090(b),
[This rule] provides for modification
and clarification of conditions and
regulations [of probation]. As pointed out
in the Comment to [the rule], its purpose is
to protect the probationer from arbitrary
conditions or regulations, to provide a
formal means short of violation and
revocation proceedings for the probationer to
have ambiguous conditions or regulations
clarified, to provide added flexibility to
the probation process, and on the suggestion
of probation officials, to provide a means
for invoking the authority of the court when
the probationer seems to be slipping toward a
revocation without risking that ultimate
sanction.
State v. Heasley, 533 P.2d 556, 558 (Ariz.
App. 1975).10
The problem in Marunichs case,
however, is that the Department did not
propose General Conditions 1, 2, 4, 6, 10,
and 12. Rather, the superior court imposed
these conditions without prior notice to
Marunich, and without giving Marunich an
opportunity to be heard. The court therefore
violated Marunichs due process rights.
It may well be that these
conditions are typical requirements of
probation in this state, or at least in the
Third Judicial District. Nevertheless,
Marunich was entitled to advance notice of
these requirements and an opportunity to
argue that, under the circumstances of his
case, one or more of these requirements are
unreasonable or infringe his rights.
Accordingly, we direct the superior
court to give Marunich an opportunity to
object to these conditions (if Marunich
wishes).
Conclusion
Of the conditions of probation listed in
Marunichs written judgements, we uphold General
Conditions 5, 7, and 9 because Marunich concedes that
these three conditions merely restate his obligation to
obey the law.
We strike General Condition No. 3 because it
is duplicative of Special Condition No. 11. We strike
General Condition No. 8 because it is superfluous,
given Special Condition No. 3.
We strike Special Condition No. 1 because it
is illegal. This condition of probation purports to
authorize searches of Marunichs person, but it was
imposed in violation of Roman v. State. That is, the
sentencing court did not expressly authorize these
searches in its sentencing remarks, nor did the court
find that there was a case-specific need for these
searches.
We strike General Condition No. 11 because
it, too, is illegal under Roman to the extent that it
purports to authorize searches that were not already
authorized by Special Condition No. 8, and because it
is superfluous to the extent that it purports to
authorize searches already authorized by Special
Condition No. 8.
We uphold Special Condition No. 2, even
though it was imposed without notice to Marunich after
Marunichs sentencing, because this condition of
probation is mandated by AS 12.55.100(d). However, we
direct the superior court to amend the wording of
Special Condition No. 2 in the manner described in this
opinion, so that it unambiguously applies only to the
searches mandated by AS 12.55.100(d).
With regard to General Conditions 1, 2, 4, 6,
10, and 12, we direct the superior court to give
Marunich an opportunity to voice any objections he may
have to these conditions.
Finally, even though Marunich has not
challenged Special Condition No. 8, we take notice that
this condition of Marunichs probation is illegal to the
extent that it purports to require Marunich to submit
to searches, not just at the request of his probation
officer, but at the request of any law enforcement
officer. See Roman v. State, 570 P.2d 1235, 1242 n. 20
(Alaska 1977). Accordingly, we direct the superior
court to amend Special Condition No. 8 by deleting the
concluding phrase, or any law enforcement officer.
In sum: Marunich is entitled to be heard
regarding General Conditions 1, 2, 4, 6, 10, and 12.
With regard to the remaining conditions of probation
discussed in this opinion, (a) we affirm the judgement
of the superior court as to General Conditions 5, 7,
and 9; (b) we reverse the judgement of the superior
court as to General Conditions 3, 8, and 11, and
Special Condition 1; and (c) we direct the superior
court to amend Special Conditions 2 and 8 as explained
in this opinion.
_______________________________
1See Smith v. State, 892 P.2d 202, 203-04 (Alaska App.
1995); Dunham v. Juneau, 790 P.2d 239, 240-41 (Alaska App.
1990); State v. LaPorte, 672 P.2d 466, 468-69 & n. 6 (Alaska
App. 1983).
2AS 33.05.040(2).
3AS 33.05.040(3).
4See Boyne v. State, 586 P.2d 1250, 1251 (Alaska 1978)
(holding that, in the absence of express legislative
authorization, a sentencing court could not, as a
condition of probation, require a defendant to spend
time in jail or another institutional confinement);
Demers v. State, 42 P.3d 1, 2 (Alaska App. 2002)
(holding that a sentencing court had no authority to
order restitution for the value of the labor
volunteered by people who came to a crime victims
assistance); Hester v. State, 777 P.2d 217, 218-19
(Alaska App. 1989) (holding that, in the absence of
legislative authorization, a sentencing court could not
delegate the authority to select an in-patient
treatment program for a defendant, nor delegate the
authority to specify the length of time that the
defendant is obliged to remain in that treatment
program).
5See United States v. Rea, 678 F.2d 382, 387 (2nd Cir.
1982); United States v. Workman, 585 F.2d 1205, 1208
(4th Cir. 1978); United States v. Trzaska, 866 F.Supp.
98, 101-02 (E.D. N.Y. 1994).
6The Neakok decision was recently limited or clarified by
Department of Corrections v. Cowles, __ P.3d __, Alaska
Opinion No. 6082 (December 15, 2006). In Cowles, the
supreme court held that the State is immune from
liability for its planning decisions in supervising
parolees, but that the State can be held liable for
Department of Corrections employees negligent
operational decisions in supervising parolees.
7See Gonzales v. State, 586 P.2d 178, 180-81 (Alaska 1978).
8Roman v. State, 570 P.2d 1235, 1243 (Alaska 1977); State v.
Thomas, 133 P.3d 684, 685 (Alaska App. 2005).
9Roman, 570 P.2d at 1240.
10Arizona Criminal Rule 27.3 reads: A probation officer or
other person designated by the court may modify or
clarify any regulation which he or she has imposed.
The court may modify any condition imposed and any
regulation imposed by a probation officer, or other
person designated by the court, after notice has been
provided to the prosecutor and the defendant of
proceedings, in which the victim has the right to
notice pursuant to Rule 27.11. A probationer,
probation officer, the State, or other person
designated by the court, at any time prior to absolute
discharge, may request the court to modify or clarify
any condition or regulation. Additionally, persons
entitled to restitution pursuant to a court order,
based upon a change of circumstances, may request the
court at any time prior to absolute discharge to modify
the manner in which restitution is paid. The court
may, where appropriate, hold a hearing on any such
request. A written copy of any modification or
clarification shall be given to the probationer.
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