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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NATHANIEL HICKS JR.,
Court of Appeals No. A-11826
Appellant, Trial Court No. 3AN-13-11738 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2506 - June 24, 2016
Appeal from the District Court, Third Judicial District,
Anchorage, Jo-Ann Chung, Judge.
Appearances: Evan Chyun, Assistant Public Advocate, and
Richard Allen, Public Advocate, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
Judge ALLARD, writing for the Court.
Judge MANNHEIMER, concurring.
Nathaniel Hicks Jr. was convicted of four counts of first-degree unlawful
contact for telephoning his girlfriend, N.A. Hicks made these phone calls from jail,
where he was awaiting trial on a charge that he assaulted N.A.
On appeal, Hicks argues that Alaska courts have no power to prohibit a
defendant in pretrial detention from contacting the alleged victim of the crime.
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According to Hicks, courts have the authority to prohibit a defendant in pretrial detention
from engaging in this contact only if the victim separately petitions the court to issue a
domestic violence protective order under Alaska Statute 18.66.
For the reasons explained here, we reject Hicks's argument.
Facts and proceedings
On July 20, 2013, Hicks was arraigned on a misdemeanor charge of
assaulting his then-girlfriend, N.A. At Hicks's arraignment, the magistrate judge orally
set conditions of bail, including the condition that Hicks not contact N.A. The judge
later formalized her bail order in a written order that set out Hicks's conditions of bail
release. Those written bail conditions also contained the provision that Hicks have "[no]
direct or indirect contact" with N.A.
However,Hicks was never released on bail. Instead, heremained in pretrial
detention for several months. On October 25, 2013, Hicks called N.A. four times from
jail, leaving messages on her voice mail. Based on these phone calls, the State charged
Hicks with four counts of first-degree unlawful contact. 1
Before trial, Hicks's attorney attacked these charges on several bases. The
defense attorney argued, in passing, that Alaska courts have no authority to impose no-
contact orders on defendants who are in pretrial detention. But the attorney also argued
that Hicks had not received constitutionally adequatenoticethat theno-contactprovision
of the bail order applied to him when he was still in jail. The district court ruled against
Hicks on these claims, and the case proceeded to trial.
1 AS 11.56.750(a)(1)(A). Hicks was also charged with violating a domestic violence
protective order, but those charges were later dismissed because Hicks had not received
proper notice of the protective order.
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At trial, the main issue before the jury was whether Hicks acted with the
required culpable mental state - that is, whether he recklessly disregarded the
circumstance that his phone calls to N.A. violated the court's no-contact order.
Hicks's attorney argued that Hicks had not acted in reckless disregard of
the order because he reasonably believed that the order only applied after he was released
on bail. The prosecutor argued that Hicks knew or should have known that the no-
contact bail order also applied to him in jail, and that even if he honestly believed that
the no-contact provision did not take effect until he was released on bail, Hicks's belief
was unreasonable.
Thejury convicted Hicks ofall four counts offirst-degreeunlawful contact.
He now appeals.
Why we reject Hicks's claim that the judge had no authority to order him
not to contact N.A. while he was in pretrial detention
As discussed in Chief Judge Mannheimer's concurring opinion, there are
significant problems with the way this case was prosecuted and argued to the jury. But
Hicks does not raise any of these issues in this appeal. Instead, Hicks's sole claim on
appeal is that, as a general matter, Alaska courts have no authority to order a defendant
in pretrial detention to refrain from contacting the alleged victim of the crime.
Hicks points out that the Alaska legislature has enacted statutes expressly
authorizing trial courts to issue no-contact orders as a condition of a defendant's bail
2
release or as a component of a defendant's sentence.
But the legislature has enacted no
2 See AS 12.30.011(b)(8) (providing that a court may require a defendant to avoid all
contact with the alleged victim as a condition of bail release); AS 12.55.015(a)(12)
(providing that a court may order a defendant to have no contact with a victim or witness as
part of the defendant's sentence).
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----------------------- Page 4-----------------------
equivalent statuteexpressly authorizingcourts toimposeno-contactordersondefendants
in pretrial detention.
Hicks argues that, in the absence ofa statute expressly authorizing the court
to issue a no-contact order to a defendant in pretrial detention, the courts have no power
to impose no-contact orders on pretrial detainees. Thus, Hicks contends, the judge's no-
contact order was void, and he could not lawfully be convicted of violating it.
Hicks's argument rests on the erroneous assumption that the courts of this
state have only the authority expressly conferred on them by statute. But this Court and
the Alaska Supreme Court have repeatedly recognized that "in the absence of a
governing statute or constitutional provision, the judiciary retains the power to declare
the common law and to promulgate supervisory rules of practice to govern litigation." 3
4
In that case, the sentencing
We relied on this principle in Dobrova v. State .
court refused to release the defendant on bail pending the defendant's sentence appeal;
the court concluded that it had no power to grant bail release to the defendant because
the pertinent statute spoke only of bail for defendants who appeal their convictions, not
5
their sentence.
Even though the bail statute did not expressly authorize courts to grant
bail release in sentence appeals, this Court held that courts had the common-law power
to grant bail to defendants who appealed their sentences, and that, because the Alaska
legislaturehad not limited that common-lawpowerby statute, Alaska courts retained that
3 Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998) (citing Bauman v. Day, 892
P.2d 817, 828 (Alaska 1995)); see also Surina v. Buckalew, 629 P.2d 969, 973 (Alaska
1981); Beran v. State, 705 P.2d 1280, 1288 (Alaska App. 1985). See generally AS 01.10.010
("So much of the common law not inconsistent with the Constitution of the State of Alaska
or the Constitution of the United States or with any law passed by the legislature of the State
of Alaska is the rule of decision in this state.").
4 674 P.2d 834 (Alaska App. 1984).
5 Id. at 835.
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----------------------- Page 5-----------------------
6
power. On petition for hearing, thesupremecourtaffirmed our decision -emphasizing
again that, in the absence of a statute granting or denying the right to bail pending a
sentence appeal, "thereexists no basisfor concluding that thelegislature intended to limit
the inherent authority of the court." 7
This same principle of common-law authority governs our decision in
Hicks's case. As the Court of Appeals for the Ninth Circuit has explained, courts have
the inherent power to protect victims and witnesses - a power that stems from the
"indisputably ... broad powers [of the courts] to ensure the orderly and expeditious
8
progress of a [criminal] trial." This inherent judicial authority is not unlimited: it must
be exercised in a manner that does not explicitly conflict with constitutional or statutory
9 10
law,
and that does not defeat the policies embodied in those laws. But unless the
legislature removes or limits this common-law judicial power, courts may continue to
exercise it.
Here, there is no statute that either grants or denies Alaska courts the
authority to impose no-contact orders on defendants in pretrial detention. Thus, Alaska
trial courts retain their inherent authority to issue such no-contact orders to protect
6 Id.
7 State v. Dobrova, 694 P.2d 157, 158 (Alaska 1985).
8 Wheeler v. United States, 640 F.2d 1116, 1122-25 (9th Cir. 1981) (quoting Bitter v.
United States, 389 U.S. 15, 16 (1967)).
9 See Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998); see also Titus v. State,
305 P.3d 1271, 1282 (Alaska 2013); Dominguez v. State, 181 P.3d 1111, 1114 (Alaska App.
2008); Lonis v. State , 998 P.2d 441, 445 (Alaska App. 2000); Stiegele v. State, 685 P.2d
1255, 1261 (Alaska App. 1984).
10 Lonis , 998 P.2d at 445.
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----------------------- Page 6-----------------------
11
victims and other witnesses. Moreover, the Alaska legislature directly recognized this
inherent authority in 2013 when it amended AS 11.56.750 to make it a crime for a
12
defendantto violateano-contact order "whileunder official detention."
Thecommittee
discussions of that legislation indicate that legislators presumed courts had the authority
13
to impose these no-contact orders.
Courts do not have the authority to interfere with decisions that are
committed to the discretion of the Department of Corrections while a defendant is
14
incarcerated, such as the decision to house a prisoner in a particular facility. But the
no-contact order in this case did not infringe on that executive authority; the order only
11 This authority is subject to the requirements of due process, equal protection, and
other constitutional constraints. See, e.g., Williams v. State , 151 P.3d 460 (Alaska App.
2006) (striking down as unconstitutional bail statutory provision that prohibited all persons
charged with domestic violence from returning to the residence of the alleged victim while
on pretrial release - without any opportunity for judicial review or any judicial findings).
12 AS 11.56.750(a)(1)(A)(iii) (effective July 1, 2013), as amended by ch. 43, §§ 9, 48,
SLA 2013.
13 See ch. 43, § 9, SLA 2013; Minutes of Senate Judiciary Committee, Senate Bill 22,
testimony of Assistant Attorney General Anne Carpeneti, Department of Law, 2:19:40 p.m.
(Jan. 30, 2013); Minutes of Senate Judiciary Committee, Senate Bill 22, testimony of
Assistant Attorney General Anne Carpeneti, Department of Law, 1:45:17 p.m. (Feb. 11,
2013); Minutes of Senate Judiciary Committee, Senate Bill 22, testimony of Assistant
Attorney General Anne Carpeneti, Department of Law, 1:55:00 p.m. (Feb. 18, 2013);
Minutes of Senate Judiciary Committee, Senate Bill 22, testimony of Assistant Attorney
General Anne Carpeneti, Department of Law, 9:51:18 a.m. (Mar. 18, 2013); Minutes of
Senate Judiciary Committee, Senate Bill 22, testimony of Assistant Attorney General Anne
Carpeneti, Department of Law, 2:07:24 p.m. (Mar. 22, 2013); see also January 15, 2013,
Governor's Transmittal Letter for Senate Bill 22, 2013 Senate Journal 38 (stating the bill
would "restrict offenders in custody from contacting a victim").
14 See Rust v. State, 582 P.2d 134, 137-38, modified on rehearing, 584 P.2d 38 (Alaska
1978); see also State v. Hiser, 924 P.2d 1024, 1025 (Alaska App. 1996).
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----------------------- Page 7-----------------------
constrained Hicks's conduct. This type of no-contact order falls squarely within the
authority of the courts.
Hicks also argues that imposing a no-contact order on a person who is in
pretrial detention violates the presumption of innocence because it is a form of
punishment. We find no merit to this claim. As a general matter, no-contact orders are
not imposed to punish the defendant, but to protect victims or other witnesses - thus
ensuring public safety and the integrity of the judicial process. 15
Hicks has not shown
that the no-contact order in his case was issued to punish him, rather than to protect the
victim.
For these reasons, we uphold the district court's decision that Alaska courts
have the authority to impose no-contact orders on defendants who remain in pretrial
detention. We therefore affirm Hicks's unlawful contact convictions.
We emphasize that we are not deciding whether the arraigning judge's
order actually prohibited Hicks from contacting N.A. while he was in jail (as opposed
to prohibiting him from contacting N.A. after he was released on bail), or whether Hicks
received constitutionally adequate notice of the no-contact order, as those questions are
not before us.
As a general matter, however, we encourage courts to ensure that
defendants are fully informed of the scope of any no-contact order so that it is clear to
everyone whether the court is imposing the restriction as a condition of bail release, or
to govern the defendant's conduct while in custody, or both.
15 See, e.g., Goodwin v. Commonwealth, 477 S.E.2d 781, 784 (Va. App. 1996)
(concluding that a protective order was remedial and did not constitute punishment for
double jeopardy purposes); In re Arseneau , 989 P.2d 1197, 1203-04 (Wash. App. 1999)
(holding that a prison-imposed no-contact order was not punitive and did not violate the
double jeopardy or ex post facto clauses).
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----------------------- Page 8-----------------------
Conclusion
We AFFIRM the judgment of the district court.
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Judge MANNHEIMER, concurring.
There are significant problems with Hicks's conviction in this case, but
those problems are not raised in Hicks's appeal.
As explained in Judge Allard's lead opinion, Hicks raises one argument on
appeal: the argument that, absent an explicit grant of authority by the legislature, a court
has no authority to prohibit a defendant from contacting the victim of the alleged offense
while the defendant is in jail awaiting trial. I join Judge Allard in rejecting that argument
- but I nevertheless have reservations about the validity of Hicks's conviction.
The fact that Hicks's arraigning judge had the authority to prohibit him
from contacting the alleged victim while he was in jail does not answer the question of
whether Hicks's judge actually issued such an order. I have listened to the audio
recording of Hicks's arraignment. The arraigning judge told Hicks that one of his
conditions of release (if he posted bail) was to refrain from contacting the alleged victim.
But it appears that the judge never said that this prohibition took effect immediately -
that it was not simply a condition of Hicks's release, but that it also governed Hicks's
conduct while he was in jail.
Even assuming that it was the judge's intention to have this prohibition take
effect immediately, it is doubtful that the judge's words gave Hicks reasonable notice
that the prohibition took effect immediately.
This brings me to a second problem in Hick's case: the prosecutor's
summation to the jury at the conclusion of Hicks's trial. In his summation, the
prosecutor expressly argued to the jury that even if the arraigning judge never directly
toldHicks that theprohibitionon contacting the victimtook effect immediately, and even
if Hicks did not understand that the prohibition took effect immediately, Hicks could
nevertheless properly be convicted if Hicks should have known that the judge would
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have wanted the prohibition to take effect immediately, regardless of what the order
actually said.
Prosecutor : [E]ven if you think it's possible that
somehow, in his heart of hearts, ... the defendant actually
thought [that the prohibition only applied if he was released
on bail], that's not enough [for him to escape conviction].
He's still guilty. Because I don't have to prove that he
actually knew [this] ... . What I have to prove is that his
behavior grossly deviated from what a reasonable person
would do in the circumstances. ... An ordinarily prudent
person, a person who uses common sense.
And would a person who uses common sense hear
[what the arraigning judge said] and come to the conclusion
[that], as long as I'm in jail, those phone calls [to the victim]
are okay? Of course they wouldn't.
The prosecutor returned to this same theme in the rebuttal portion of his
summation:
Prosecutor : Let's listen one more time to what the
defendant heard [at his arraignment,] and what the judge
ordered.
[A 49-second audio excerpt is played for the jury]
Prosecutor : "Don't have any contact with her." Not
"Don't have any contact with her once you get released."
And that's just common sense, right? [Because] jail is more
restrictive than not being in jail. [When] you get out of jail,
you expect to have fewer restrictions on what you can do,
who you can associate with, who you can call, rather than
more [restrictions]. You heard from Mr. Sherry [of the
district attorney's office]; he's never encountered a single
case where a judge [expressly] allowed someone to have
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contact in jail, but not while they're out on bail. It just
doesn't make sense. So ... it's really the only natural way to
understand [the arraigning judge's order].
[But] frankly, what [Mr. Hicks] personally, indivi-
dually, subjectively thought ... is legally not very important.
What matters is what a reasonable person would have done,
how a reasonable person would have understood that order.
It's common sense. A reasonable person hears, "Don't have
contact with her." A reasonable person would know, "I'm
not allowed to have contact with her." Contacting her is a
gross deviation - and that's the legal standard, that's the
language you're going to hear - a gross deviation from how
a reasonable person would act. And it's that simple.
In other words, the prosecutor seemingly argued that Hicks should be
convicted because it was reasonable to think that Hicks's judge wanted the prohibition
to cover Hicks's actions while he was in jail - regardless of how Hicks actually
understood the judge's order, and regardless of what the order actually provided. 1
Obviously, since Hicks did not raise these issues on appeal, the State has
never had the opportunity to respond to them. It would be improper to reverse Hicks's
conviction simply because the record raises these questions. But I would be remiss if I
failed to point out these significant problems in the proceedings that led to Hicks's
conviction.
1 The proper interpretation of a court order or judgement is a question of law. John v.
Baker, 125 P.3d 323, 326 n. 7 (Alaska 2005); Bennett v. Bennett , 6 P.3d 724, 726 (Alaska
2000); Luckart v. State , 270 P.3d 816, 820 (Alaska App. 2012).
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