|
You can of the Alaska Court of Appeals opinions.
|
|
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
EARL N. RAY,
Court of Appeals No. A-10565
Appellant, Trial Court No. 3PA-94-975 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2326 - September 16, 2011
Appeal from the Superior Court, Third Judicial District,
Anchorage, Beverly W. Cutler, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Mary A. Gilson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
In October 1995, Earl N. Ray was convicted of two counts of first-degree
sexual assault and one count of second-degree sexual assault. These convictions
stemmed from a criminal episode that occurred in May 1994 - approximately three
----------------------- Page 2-----------------------
months before Alaska's Sex Offender Registration Act, AS 12.63, took effect. (The Act
took effect on August 10, 1994.) 1
Ray served thirteen years in prison, and then he was released on probation
in September 2007. Fifteen months later, the State filed a petition to revoke Ray's
probation, alleging that he violated the conditions of his probation by contacting a
member of the victim's family.
Superior Court Judge Beverly J. Cutler ultimately found that Ray had
violated the conditions of his probation. She sentenced Ray to serve 1 year of his
previously suspended jail time, and she further ordered that when Ray was released to
probation again (after serving the year in prison), he would have to register as a sex
offender under AS 12.63 during the remainder of his term of probation.
Ray now appeals the portion of the superior court's order requiring him to
register as a sex offender.
During her remarks at Ray's probation revocation sentencing hearing,
Judge Cutler acknowledged that sex offender registration was not "mandatory" for Ray's
offenses, but the judge suggested that she nevertheless had the discretion to require Ray
to register as a sex offender as one of the conditions of his probation. The State now
concedes that this was wrong.
We decided this point of law in Whitehead v. State, 985 P.2d 1019 (Alaska
App. 1999). The defendant in Whitehead was convicted of coercion under
AS 11.41.530. Coercion is not one of the offenses listed in AS 12.63.100 that trigger a
defendant's obligation to register as a sex offender. Nevertheless, because of the
particular facts of Whitehead's case, the sentencing judge concluded that Whitehead
1 See SLA 1994, ch. 41.
- 2 - 2326
----------------------- Page 3-----------------------
should be required to register as a sex offender. 2 (As part of the plea bargain in
Whitehead's case, the State dismissed several sexual assault charges that would have
triggered sex offender registration.) 3 Accordingly, the sentencing judge imposed a
special condition of probation which required Whitehead to comply with the registration
requirements of AS 12.63 during his term of probation. 4
We held that a sentencing judge has no authority to impose such a condition
of probation:
In a series of cases starting with Boyne v. State, [586
P.2d 1250 (Alaska 1978),] the Alaska Supreme Court and
this court have held that sentencing courts must have explicit
legislative authorization before imposing conditions of
probation that fundamentally alter the nature of the probation.
For instance, in Boyne itself, the supreme court held that a
sentencing court may not impose imprisonment as a condition
of SIS probation. [Id. at 1251.] ...
Sex offender registration is obviously less burdensome
than incarceration. We are mindful that probationers have
traditionally been required to apprise their probation officers
of their place of residence and their place of employment.
Nevertheless, sex offender registration entails more than
simply informing a probation officer of one's residence and
place of employment. Under the sex offender registration
law, a defendant must supply this information (as well as
other personal information) for dissemination to the public at
large.
2 Whitehead, 985 P.2d at 1020.
3 Ibid.
4 Ibid.
- 3 - 2326
----------------------- Page 4-----------------------
... [T]he Alaska Legislature specifically amended
Criminal Rule 11(c) to require judges to inform defendants
about the sex offender registration requirement before
accepting a guilty plea to a sex offense. [citation omitted] We
inferred, from the legislature's action, that the legislature
viewed sex offender registration as a serious consequence of
conviction and "that the legislature believed it would be
unfair to allow defendants to plead guilty to a sex offense
without first telling them about the registration requirement."
[Peterson v. State, 988 P.2d 109, 118 (Alaska App. 1999).]
For similar reasons, we [now] conclude that we should not
construe [the probation statutes] to allow sentencing judges
to impose sex offender registration as a condition of
probation when the legislature has not expressly authorized
sentencing courts to exercise this power.
Whitehead, 985 P.2d at 1021 (text of footnotes included as bracketed text).
Nine years after we issued our decision in Whitehead, the Alaska Supreme
Court issued its decision in Doe v. State, 189 P.3d 999 (Alaska 2008). In Doe, the
supreme court ruled that sex offender registration is a criminal punishment for purposes
of Article I, Section § 15 of our state constitution - the provision that bars the
legislature from enacting ex post facto crimes or punishments. 5 In other words, the
supreme court held that it is unconstitutional to apply the Sex Offender Registration Act
to defendants like Ray whose crimes were committed before the Act took effect.
The supreme court's decision in Doe is significant here, not for the court's
ultimate conclusion that sex offender registration constitutes punishment for ex post facto
purposes, but rather for the supreme court's reasoning. In reaching the conclusion that
sex offender registration constitutes "punishment", the supreme court relied heavily on
the fact that sex offender registration imposes "significant and intrusive" obligations on
5 Doe, 189 P.3d at 1019.
- 4 - 2326
----------------------- Page 5-----------------------
a defendant, as well as a "severe stigma". Doe, 189 P.3d at 1009. The supreme court
further noted that registration exposes defendants to "profound humiliation and
community-wide ostracism", with the attendant possibility that the defendant "will be
denied employment and housing opportunities as a result of community hostility". Id.
at 1009-1010.
The supreme court's analysis in Doe lends significant strength to our
decision in Whitehead - our conclusion that requiring a defendant to register as a sex
offender as a condition of their probation fundamentally alters the nature of the
probation, and that therefore a sentencing court has no power to impose such a condition
of probation in the absence of express statutory authority.
We therefore re-affirm our holding in Whitehead - and, on the basis of
Whitehead, we accept the State's concession of error in this case. The challenged
condition of probation is unlawful, and that aspect of the superior court's sentencing
decision is REVERSED.
- 5 - 2326
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
