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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEVIN DALTON,
Court of Appeals No. A-13149
Appellant, Trial Court No. 3AN-17-04785 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2682 - November 6, 2020
Appeal f
rom the Superior Court, Third Judicial District,
Anchorage, Michael D. Corey, Judge.
Appearances: Margi A. Mock, under contract with the Public
Defender Agency, and Samantha Cherot, Public Defender,
Anchorage, for the Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge HARBISON.
----------------------- Page 2-----------------------
Kevin Dalton pleaded guilty, pursuant to a plea agreement, to second-
1
degree sexual abuse of a minor.
On appeal, Dalton challenges two probation conditions,
which implicate his constitutional rights to familial association and free speech. As we
have previously recognized, probation conditions that infringe constitutional rights are
subject to special scrutiny and require the sentencing court to "affirmatively consider,
2
and have good reason for rejecting, any less restrictive alternatives." For the reasons
explained in this decision, we remand this case for the trial court to reconsider both
conditions under the appropriate standard.
Factual and procedural background
In June2017, twelve-year-oldH.D.reportedthat her stepfather, Dalton, had
entered her bedroom in the middle of the night and sexually penetrated her. According
to H.D., Dalton gave her two pills of what she believed was a "muscle relaxer" earlier
in the evening. (Dalton later admitted that the pills were sleeping pills.) After taking one
of the pills, H.D. fell asleep. She later awoke to find Dalton touching her vagina. Dalton
then penetrated her anus with his penis.
H.D. reported the abuse to her mother, and her mother contacted the police.
Pursuant to a search warrant, the police searched Dalton's iPad and discovered multiple
visits, in the seventy-two hours preceding the abuse, to a pornography website, where
Dalton viewed files including, "Dad fucks sleeping step daughter 01," and "Surprise
buttsex."
1 AS 11.41.436(a)(2).
2 Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014).
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----------------------- Page 3-----------------------
Dalton was charged with two counts of first-degree sexual abuse of a
3
minor.
He later pleaded guilty, pursuant to a plea agreement, to a single reduced charge
4
of second-degree sexual abuse of a minor, with a stipulation that his conduct was among
5
the most serious included within the definition of the offense. The agreement left the
length and terms of Dalton's sentence to the discretion of the trial court.
The trial court ultimately imposed a sentence of 20 years with 10 years
suspended (10 years to serve), as well as 10 years of probation. Over Dalton's objection,
the court also imposed probation conditions that: (1) restricted his contact with "the
victim(s) of[his]crime(s)"and (2) prohibited internet access without prior approval from
his probation officer.
The probation condition prohibiting contact must be narrowly tailored to
avoid infringement on Dalton's constitutional right to familial association
On appeal, Dalton first challenges a probation condition that prohibits him
from contacting "the victim(s) of [his] crime(s)" without written permission from his
probation officer and his sex offender treatment provider. Dalton does not argue that he
should be permitted to contact H.D. However, in this context, the statutory definition of
"victim" includes not only H.D., but also H.D.'s mother, Alicia D., because H.D. is a
6
minor.
Because Alicia D. and Dalton have two young sons together, Dalton argues that
3 AS 11.41.434(a).
4 AS 11.41.436(a)(2).
5 AS 12.55.155(c)(10).
6 See AS 12.55.185(19) (defining "victim" to include: "(A) a person against whom an
offense has been perpetrated; [and] (B) one of the following, not the perpetrator, if the person
specified in (A) of this paragraph is a minor, incompetent, or incapacitated: (i) an individual
(continued...)
- 3 - 2682
----------------------- Page 4-----------------------
this condition will unduly restrict his familial association with his biological children, as
well as with Alicia D. herself.
Both parties agree that this condition must be construed narrowly to avoid
infringement of Dalton's constitutional right to familial association. Both parties also
agree that Alicia D., rather than a probation officer and treatment provider, should have
the power to determine whether and to what extent to allow contact. Indeed, the trial
court also agreed with this premise, and stated its intent "to leave contact in the hands of
the victims and their election." The probation condition ultimately imposed fails to
effectuate this intent, instead allowing a probation officer and treatment provider to
potentially override Alicia D.'s wishes.
The State concedes that we should remand this probation condition to the
trial court for further proceedings. We have reviewed the record, and we agree that a
remand is required to ensure that the no-contact condition is appropriately narrow to
avoid any unnecessary interference with Dalton's constitutional rights. 7
The probation condition making all internet access contingent on
probation officer discretion unduly restricts Dalton's liberty
Dalton also challenges a probation condition that prohibits him from
accessing the internet without his probation officer's permission. Dalton contends that
this condition impermissibly delegates the sentencing court's duty to apply special
6 (...continued)
living in a spousal relationship with the person specified in (A) of this paragraph; or (ii) a
parent, adult child, guardian, or custodian of the person").
7 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to
independently evaluate any concession of error by the State in a criminal case).
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----------------------- Page 5-----------------------
8
scrutiny to a condition implicating Dalton's First Amendment rights. The State urges
9
us to uphold the condition based on our decisions in Dunder v. State
and Diorec v.
10
State.
In Dunder v. State, we reviewed a probation condition that prohibited
possession of "any device capable of accessing the internet, storing movies, or
photographs[,] or [that] has a wireless capability such as an iPod, MP3 player device[,]
11
or a cell phone." We recognized the burden such a condition placed on an offender's
reintegration into society:
Dunder points out that it is difficult to function in modern
society without access to the technology that Judge Smith's
order prohibits him from possessing. He further suggests
that, by the time he is released from his lengthy term of
imprisonment, it will likely be even more difficult to function
in society "without the use of at least one electronic device."
Given the rapid advance of technology and the length of
Dunder's sentence of imprisonment, we agree that some
degree of access to these devices will probably be necessary
[12]
to Dunder's reintegration into society.
8 Cf. Packingham v. North Carolina, 137 S.Ct. 1730, 1737 (2017) (holding that
prohibiting all access to social networking websites impermissibly infringed the First
Amendment rights of registered sex offenders).
9 Dunder v. State , 2009 WL 1607917 (Alaska App. June 10, 2009) (unpublished).
10 Diorec v. State , 295 P.3d 409 (Alaska App. 2013).
11 Dunder , 2009 WL 1607917, at *1 (alteration in original).
12 Id.
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----------------------- Page 6-----------------------
As an alternative to a total ban, we approved a probation condition "that
prohibited Dunder from using or possessing Internet-capable, wireless, and electronic
13
storage devices unless he obtains permission from his probation or parole officer."
Similarly, in Diorec v. State, we upheld a probation condition that
prohibited a defendant "from opening an Internet account or accessing the Internet from
14
another person's account without the prior written permission of his probation officer."
In holding that "[i]t was reasonable for the [trial] court to conclude that supervision of
Diorec's access to the Internet could promote his rehabilitation and protect the public,
and that Diorec's probation officer [would] allow any reasonable Internet use that is
important for his rehabilitation," we noted that, "[m]any courts have approved similar
15
conditions when the Internet ban can be relaxed or modified by a probation officer."
We decided Dunder in 2009 and Diorec in 2013. In the intervening years,
the role of the internet in society has only grown - and the "many courts" we relied on
in upholding the conditions in Dunder and Diorec no longer concur with each other on
whether a total internet ban, subject to modification by a probation officer, is sufficiently
narrowly tailored to survive special scrutiny. Of the seven United States Circuit Courts
of Appeals we cited in Diorec, nearly half have since held that probation officer approval
16
is not a sufficient safeguard for First Amendment rights in this context.
13 Id.
14 Diorec v. State , 295 P.3d 409, 412, 418 (Alaska App. 2013).
15 Id. at 418 & n.25 (citing decisions from several federal circuit courts of appeals); see
also Dunder, 2009 WL 1607917, at *1 n.7 (citing decisions upholding similar conditions).
16 See United States v. Holena, 906 F.3d 288, 290-95 (3d Cir. 2018); United States v.
LaCoste , 821 F.3d 1187, 1191-92 (9th Cir. 2016); United States v. Blair, 933 F.3d 1271,
1275-81 (10th Cir. 2019).
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----------------------- Page 7-----------------------
For instance, in United States v. Holena, the Third Circuit vacated
probation conditions prohibiting a probationer from possessing or using computers, or
otherwise accessing the internet without his probation officer's approval. 17 The Third
Circuit acknowledged that restricting Holena's internet access was "necessary to protect
the public," in light of the role the internet had played in his underlying offense, which
involved repeatedly visiting an online chat room and attempting to entice a fourteen-
18
year-old boy to meet him in person to engage in sexual acts. Nonetheless, the court
concluded that the internet restriction was overbroad and unduly restrictive of liberty
because it "gave the probation office no guidance on the sorts of internet use that it
19
should approve." The court found "no justification for stopping Holena fromaccessing
websites where he will probably never encounter a child, like Google Maps or Amazon.
The same is true for websites where he cannot interact with others or view explicit
20
materials, like Dictionary.com or this Court's website."
In United States v. Blair, the Tenth Circuit reached a similar conclusion,
explaining why a condition that may have been upheld under prior case law was
nonetheless unduly restrictive:
17 Holena, 906 F.3d at 290.
18 Id.
19 Id. at 293.
20 Id. ; see also LaCoste, 821 F.3d at 1192 ("When a total ban on Internet access cannot
be justified, as is the case here, we have held that a proviso for probation-officer approval
does not cure the problem. And for good reason: If a total ban on Internet use is improper
but a more narrowly tailored restriction would be justified, the solution is to have the district
court itself fashion the terms of that narrower restriction. Imposing a total ban and
transferring open-ended discretion to the probation officer to authorize needed exceptions
is not a permissible alternative.") (citation omitted).
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----------------------- Page 8-----------------------
In [ United States v. Ullmann , 788 F.3d 1260, 1261 (10th Cir.
2015)], we described the Internet as "a means of
communication that has become a necessary component of
modern life." Four years later, the role that computers and
the Internet play in our everyday lives has become even more
pronounced, and we expect that trend to continue. Thus,
what was a reasonable restriction on Internet-use in our
earlier cases may be different from what is reasonable today.
We must read our prior cases in light of the evolution of the
Internet and the public's dependency on it. [21]
22
Several of our sister states have adopted a similar approach. For example,
in State v. R.K., the Appellate Division of the New Jersey Superior Court struck down
a parole condition allowing access to social media only with prior permission from the
23
district parole supervisor. The court rejected the argument that the district parole
supervisor's ability to modify the ban acted as an appropriate "escape valve" to save the
ban from "constitutional fatality": "Neither the [Parole] Board nor its parole officers
21 United States v. Blair, 933 F.3d 1271, 1277 (10th Cir. 2019).
22 See, e.g., Weida v. State, 94 N.E.3d 682, 691-93 (Ind. 2018) (concluding that a
condition making internet access contingent upon prior probation officer approval "reaches
beyond reasonableness into unreasonableness"); State v. R.K., 232 A.3d 487, 502 (N.J. Super.
App. Div. 2020) ("[T]he parole officer should not be given the authority to make [an
internet] ban constitutional when we have determined it is unconstitutional."); In the Matter
of the Personal Restraint of Sickels, 461 P.3d 322, 335 (Wash. App. 2020) ("Delegating
authority to Mr. Sickels's supervising [community corrections officer] to approve internet
access does not solve the problem; a sentencing court may not wholesaledly abdicate its
judicial responsibility for setting the conditions of [community custody]."); Mutter v. Ross ,
811 S.E.2d 866, 873 n.38 (W. Va. 2018) ("[T]he fact that Defendant may use the Internet if
he obtains prior written approval from his probation officer cannot salvage this otherwise
overly broad restriction." (citing United States v. Maxson, 281 F.Supp.3d 594, 600 (D. Md.
2017))).
23 R.K., 232 A.3d at 490.
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----------------------- Page 9-----------------------
should be the gatekeeper to determine whether a person's, even a parolee's,
24
constitutional free speech rights via access to social media should be unlocked."
Likewise, in Weida v. State, the Indiana Supreme Court vacated probation
25
conditions prohibiting internet access without probationofficer permission. Weidawas
convicted of felony incest after he had sexual intercourse with his sixteen-year-old niece,
26
K.M.
Leading up to this offense, Weida used his cell phone to search for explicit
27
pictures on the internet, which he then showed to K.M. The court concluded that a total
internet ban, subject only to the exercise of a probation officer's discretion, was
unreasonable:
Here, the record reveals Weida has no history of misusing the
internet or using the internet to perpetrate a crime. However,
the record does show that Weida used the internet shortly
before committing incest with K.M. He admitted googling
explicit photos and showing them to K.M. He likewise
admitted viewing an incest website before having sex with
K.M. We cannot ignore that when Weida enjoyed unfettered
internet access he committed incest. Whether or not he
intentionally groomed K.M. for sex, there is no doubt the two
went from talking, to looking at sexually explicit material
online, to having sex. But Weida's troubles recognizing
sexual boundaries in person and online should not result in a
[28]
far-reaching, broad internet ban.
24 Id. at 501-02.
25 Weida, 94 N.E.3d at 693.
26 Id. at 686.
27 Id.
28 Id. at 693.
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----------------------- Page 10-----------------------
We agree with the reasoning of those courts that have recognized the
growing necessity of internet access for full participation in modern society, and for the
29
rehabilitation of offenders.
In particular, we agree with the Tenth Circuit's conclusion
that "what was a reasonable restriction on Internet-use in our earlier cases may be
different from what is reasonable today. We must read our prior cases in light of the
30
evolution of the Internet and the public's dependency on it."
Since our decision in Diorec in 2013 - and especially since our decision
in Dunder more than a decade ago - dependence on the internet in daily life has grown
31
considerably.
Accordingly, the burden that an internet ban places on probationers
32
seeking to reintegrate into society has likewise grown considerably. What may have
29 See, e.g., United States v. Eaglin, 913 F.3d 88, 98 (2d Cir. 2019) ("[A]ccess to the
Internet is essential to reintegrating supervisees into everyday life, as it provides avenues for
seeking employment, banking, accessing government resources, reading about current events,
and educating oneself."); Weida, 94 N.E.3d at 687 ("We live in the internet age. The
internet, cyberspace, the World Wide Web, whatever moniker you choose, pervades our daily
lives. For many, we even carry the internet around in our pockets or purses. Our cell phones
provide the gateway into cyberspace's vast domains. [Indiana citizens] accomplish life's
most meaningful and mundane everyday tasks with cyberspace at our fingertips. We apply
for jobs, we file tax returns, we pay bills, we attend college, we read the news, we navigate,
we communicate, we shop - all online.").
30 United States v. Blair, 933 F.3d 1271, 1277 (10th Cir. 2019).
31 See Pew Research Center, Internet/Broadband Fact Sheet , Internet Use Over Time,
https://www.pewresearch.org/internet/fact-sheet/internet-broadband (reporting that 90% of
adults in the United States used the internet in 2019, compared to 84% in 2013 and 76% in
2009); Pew Research Center, About Three-in-Ten U.S. Adults Say They Are 'Almost
C o n s t a n t l y ' O n l i n e , F A C T A N K ,
https://www.pewresearch.org/fact-tank/2019/07/25/americans-going-online-almost-consta
ntly (reporting that 81% of Americans used the internet on a daily basis in 2019).
32 See, e.g., United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016) ("Use of the
(continued...)
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been an inconvenience a decade ago - though admittedly a substantial one - may now
be an almost total hindrance to reentry into modern society and meaningful participation
33
in public discourse.
These developments have called into question our decisions in
Diorec and Dunder .
But Dalton does not ask us to overrule those cases; instead, he argues that
they are factually distinguishable. We agree, and we accordingly resolve Dalton's claim
narrowly. On the record before us, we hold that conditioning Dalton's internet access
on probation officer approval unduly restricts Dalton's liberty.
The internet's role in Dalton's offense does not approach its role in Dunder
and Diorec . Dunder's offenses "directly involved the use of a computer and the Internet
to commit serious sexual offenses against minors," i.e., two counts of sexual abuse of a
34
Diorec's offenses involved a seven-
minor and the distribution of child pornography.
month long scheme to pose as a sixteen-year-old boy on Twitter, and the use of that
online profile to contact teenage girls, one of whom was his fourteen-year-old
32 (...continued)
Internet is vital for a wide range of routine activities in today's world - finding and applying
for work, obtaining government services, engaging in commerce, communicating with
friends and family, and gathering information on just about anything, to take but a few
examples. Cutting off all access to the Internet constrains a defendant's freedom in ways that
make it difficult to participate fully in society and the economy.").
33 See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017) ("While in the past
there may have been difficulty in identifying the most important places (in a spatial sense)
for the exchange of views, today the answer is clear. It is cyberspace - the 'vast democratic
forums of the Internet' in general, and social media in particular." (quoting Reno v.
American Civil Liberties Union , 521 U.S. 844, 868 (1997))) (additional citations omitted).
34 Dunder v. State, 2009 WL 1607917, at *1 (Alaska App. June 10, 2009) (unpublished).
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----------------------- Page 12-----------------------
35
stepdaughter. Diorec then abused one of the internet's more benign purposes - online
shopping - to purchase a spy camera, which he installed in a smoke detector in his
stepdaughter's bedroom to record her surreptitiously, after giving her lubricant and a sex
36
toy. By contrast, Dalton's use of the internet was limited to viewing several files on a
child pornography website.
Dunder and Diorec do not stand for the proposition that a sentencing court
may impose an internet ban whenever there is a factual nexus between the internet and
the defendant's underlying offense. We acknowledge - and Dalton does not dispute
- that there is a nexus between Dalton's use of the internet and the sexual abuse he
thereafter perpetrated against H.D. We cannot ignore the role of the internet in Dalton's
offense, nor would we ask the sentencing court to ignore it. But as the Indiana supreme
court noted, a defendant's "troubles recognizing sexual boundaries in person and online
37
should not result in a far-reaching, broad internet ban." The internet played far less of
a role in Dalton's offense than it did in either Dunder's distribution of child pornography,
or Diorec's seven-month-long campaign to sexually stimulate, record, and exploit his
stepdaughter. In short, while we agree with the trial court that there was a factual nexus
justifying a restriction on Dalton's internet access, a complete internet ban, subject only
38
to the unconstrained discretion of a probation officer, unduly restricts Dalton's liberty.
35 Diorec v. State , 295 P.3d 409, 412 (Alaska App. 2013).
36 Id. at 412.
37 Weida v. State, 94 N.E.3d 682, 693 (Ind. 2018).
38 We held in Diorec that "a condition prohibiting Internet access could be reasonable
only if the condition allows a probation officer to allow necessary Internet use under
appropriate conditions." Diorec , 295 P.3d at 418 (emphasis added). We did not hold that
a condition prohibiting internet access is necessarily reasonable whenever a probation officer
(continued...)
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----------------------- Page 13-----------------------
On remand, the trial court must narrowly tailor any restrictions on
Dalton's internet access
The record shows that the trial court was troubled by the broad scope of the
internet restriction and attempted to remedy it. The court recognized "[t]he reality . . .
that Mr. Dalton is not going to be in jail forever. . . . [And] unless there's significant
changes in society between now and when Mr. Dalton's ultimately released, the genie's
out of the bottle. And the internet . . . is not going away." The court thus sought to
impose something less than a full internet ban, something that would allow Dalton access
to the internet with appropriate probation supervision, so that he could "establish a track
record of being able to [use the internet] in an acceptable fashion." To this end, the court
proposed modifying the condition to allow Dalton to open and maintain a single internet
account, which would be subject to warrantless searches and probation officer
monitoring.
Dalton objected to the court's proposal, arguing that the internet is "the air
that we all breathe now," and that any restriction on his internet access was impractical
and unduly restrictive. After hearing an explanation of the probation office's standard
procedure for granting internet access - including conducting an individualized risk
assessment, consulting with treatment providers, and considering available monitoring
tools such as software or supervised use - the court ultimately decided to impose the
original condition rather than attempting to craft a narrower restriction.
38 (...continued)
has discretion to allow exceptions to the ban. Thus, Dunder and Diorec do not stand for the
broad proposition suggested by the State that a probation officer's discretion cures any
unconstitutionality in an otherwise overbroad internet restriction.
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----------------------- Page 14-----------------------
On remand, we encourage the trial court to resume its consideration of less
39
restrictive alternatives to limit Dalton's internet access.
We note that the trial court's
proposed modification would allow Dalton to join the vast majority of American adults
who use the internet on a daily basis for a full range of activities, including those
implicating First Amendment rights. But it would also allow his probation officer to
monitor his internet use from a discrete access point, without having to police Dalton's
access to a potentially unlimited number of devices and accounts. On remand, the trial
court may again consider this potential restriction or any other narrowly tailored
condition consistent with the principles discussed above.
Conclusion
We REMAND Dalton's case to the trial court for reconsideration of the
probation conditions restricting contact with Alicia D. and Dalton's biological children,
as well as Dalton's access to the internet. The trial court must apply special scrutiny
analysis to both conditions.
39 Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014) (holding that trial courts
must subject probation conditions implicating constitutional rights to special scrutiny and
"affirmativelyconsider, and have good reason for rejecting, anyless restrictive alternatives").
- 14 - 2682
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