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Robert Joel Mollica II v. State of Alaska (10/22/2021) ap-2711

Robert Joel Mollica II v. State of Alaska (10/22/2021) ap-2711

                                                                        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 @ akcourts.gov
  



                       IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ROBERT JOEL MOLLICA II,  

                                                                                             Court of Appeals No. A-13046  

                                                 Appellant,                              Trial Court No. 3AN-11-04977 CR  



                                     v.  

                                                                                                            O P I N I O N  

STATE OF ALASKA,  



                                                 Appellee.                                   No. 2711 - October 22, 2021  



                        Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                             

                        Anchorage, Kari Kristiansen, Judge.  



                        Appearances:                 Emily  Jura,  Assistant  Public  Defender,  and  

                                                                  

                         Samantha            Cherot,          Public   Defender,                 Anchorage,              for     the  

                        Appellant.  Terisia K. Chleborad, 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 ALLARD.  



                         RobertJoel           MollicaII wasdischargedfromthePalmer WellnessCourt                                                       after  



he committed a domestic violence assault against his girlfriend, and then, shortly after           



being released fromjail for the                        assault, absconded fromhis housing program, used illegal                                      


----------------------- Page 2-----------------------

drugs, and attempted to break into the Anchorage Police Department, resulting in a new  

                                                                                                                             



criminal charge of criminal trespass.  

                                                         



                    On appeal, Mollica does not dispute that he committed these actions; nor  

                                                                                                                               



does  he  necessarily  dispute  that  they  constitute  good  cause  for  his  discharge  from  

                                                                                                                            



Wellness Court. Instead, he argues only that the procedures by which he was discharged  

                                                                                                                    



from Wellness Court violated due process because, according to Mollica, he was not  

                                                                                                                               



given "notice or the opportunity to respond" to the reasons for his discharge.  

                                                                                                      



                    We have not previously addressed the due process rights of a criminal  

                                                                                                                       



defendant facing discharge from a post-plea therapeutic court program.  In accordance  

                                                                                                                   



with the majority of other jurisdictions that have considered this question, we now hold  

                                                                                                                             



that a defendant facing discharge from a post-plea therapeutic court program has due  

                                                                                                                              



process rights akin to the limited due process rights of parolees and probationers facing  

                                                                                                                           



revocation of their parole or probation.  These rights include the right to written notice  

                                                                                                                           



of the grounds for discharge, disclosure of the evidence against the participant, and an  

                                                              



opportunity to challenge that evidence and offer any defenses or mitigating information.  

                                                                                                                                     



                    Here, the record is clear that Mollica was on notice of the grounds for his  

                                                                                                                                



discharge and that he was given an opportunity to be heard.  The record is also clear that  

                                                                                                                               



Mollica never raised any objections to the procedures used to discharge him and he did  

                                                                                                                               



not dispute the factual grounds for discharge.  Given these circumstances, we conclude  

                                                                                                                      



that reversal of the superior court's order discharging Mollica fromWellness Court is not  

                                                                                                                                



required.  



                    Mollica also challenges the sentence that was imposed for his probation  

                                                                                                                     



violation. For the reasons explained here, we affirmthe sentence as not clearly mistaken.  

                                                                                                                      



                                                              - 2 -                                                          2711
  


----------------------- Page 3-----------------------

             Background facts and prior proceedings                     



                           In 2013, Mollica pleaded guilty, pursuant to a plea agreement, to second-                                                            



degree robbery following an incident in which he stole items from an Anchorage Fred                                                                                    



                                                                                                                                                    1  

                                                                                                                                                                        

Meyer store and threatened a security guard with a long, fixed-blade knife.                                                                            Mollica also  



                                                                                                                                                                            

pleaded guilty, under the agreement, to violating the conditions of his release because he  



                                                                  2  

                                                                                                                                                                        

failed to attend a pretrial hearing.                                 The superior court sentenced Mollica to 10 years with  



                                                                                                                                                              

5 years suspended (5 years to serve) and a 5-year term of probation for these crimes.  



                                                                                                                                                                          

                           In 2015, after Mollica was released from custody and began serving his  



                                                                                                                                                                

probation, the State filed a petition to revoke Mollica's probation based on an incident  



                                                                                                                                                                       

in which he kicked in the door of an occupied residence in Anchorage.  The State later  



                                                                                                                                                                

amended the petition to include additional allegations of illegal drug use.  The superior  



                                                                                                                                                             

court revoked Mollica's probation for these violations and imposed 60 days of Mollica's  



                                                                                                        

suspended time to serve.  Mollica then returned to probation.  



                                                                                                                                                            

                           In 2016, the State filed a second petition to revoke Mollica's probation  



                                                                                                                                                                            

based on an incident in which Mollica broke into an unoccupied child care center in  



                                                                                                                                                                        

Palmer with a bloody knife and syringes.  As a result of this conduct, Mollica was also  



                                                                                                                                                        

separately charged in a new criminal case with second-degree burglary and third-degree  



                                     3  

                   

criminal mischief. 



                                                                                                                                                                 

                           The parties later agreed to resolve these two matters - the second petition  



                                                                                                                                                                 

to revoke probation in the Anchorage case and the new burglary charge in the Palmer  



                                                                                                                                                                            

case - through a Criminal Rule 11 plea agreement. The agreement required Mollica to  



       1      AS 11.41.510(a)(1).  



       2      AS 11.56.757(b)(1).  



       3      AS 11.46.310 and AS 11.46.482(a)(1), respectively.  



                                                                                   - 3 -                                                                               2711
  


----------------------- Page 4-----------------------

enter  and  complete   the   Palmer   Wellness   Court.     The   Palmer   Wellness   Court   is  a  



                                                                                                                4  

therapeutic court that is focused on substance abuse treatment.                                                    



                                                                                                                                                      

                        As part of his Wellness Court agreement, Mollica agreed to admit the  



                                                                                                                                         

second probation violation in the Anchorage case.  If Mollica successfully completed  



                                                                                                                                                    

Wellness  Court,  the  second  petition  to  revoke  probation  would  be  dismissed,  and  



                                                                                                                             

Mollica's probation would be terminated.  However, if Mollica was discharged from  



                                                                                                                                                     

Wellness Court prior to completing the program, the petition would proceed to the  



                                                                                                                                         

disposition  stage,  and  the  superior  court  would  sentence  Mollica  on  the  probation  



violation.  



                                                                                                                                                  

                        In addition, aspart ofthe agreement, Mollica agreed to plead guilty to third- 



                                                                                                                                        

degree  criminal  mischief  in  the  Palmer  case  and  to  receive  a  30-month  suspended  



                 5  

                                                                                                                                           

sentence.           This sentence would remain suspended if Mollica completed the Wellness  



                                                                                                                                                    

Court  program,  but  30  months  would  be  imposed  as  time  to  serve  if  Mollica  was  



                                      

discharged from the program.  



      4     See Alaska Court System, PUB-118, Alaska Therapeutic Courts:  Palmer Wellness  



Court    (2019),    https://public.courts.alaska.gov/web/forms/docs/pub-118.pdf    (describing  

Palmer Wellness Court).  As a general matter, therapeutic courts - variably known as drug                                          

courts, support courts, and wellness courts - bring justice system players together to support   

the treatment and rehabilitation of participants.                                  Parties involved typically include a judge,   

prosecutor, defense attorney, and probation officer. Other community service providers and                              

law  enforcement   officials  may   also  participate.    To  facilitate  this  collaboration,  "the  

prosecutor and defense counsel must shed their traditional adversarial courtroom relationship                                           

and work together as a team." National Association of Drug Court Professionals, Drug Court     

Standards Committee, Defining Drug Courts:  The Key Components 3 (2004 reprinting).  



      5     AS 11.46.482(a)(1).  



                                                                         - 4 -                                                                     2711
  


----------------------- Page 5-----------------------

          The terms and conditions of Mollica's Wellness Court participation  

                                                                                               



                    As part of the Wellness Court program, Mollica was required to attend  

                                                                                                                           



therapeutic court proceedings, follow an individualized treatment plan, take and pass  

                                                                                                                              



regular alcohol and drug screenings, report contacts with law enforcement and changes  

                                                                                                                         



in address or employment to his probation officer, "eliminate problems contributing to  

                                                                                                                                  



addiction," and "make suitable progress towards controlling addiction."  

                                                                                              



                    A  therapeutic  court  team oversaw  Mollica's  participation  in  Wellness  

                                                                                                                      



Court. The team included the therapeutic court judge, the prosecutor, Mollica's defense  

                                                                                                                          



attorney,  and  a  probation  officer/case  manager.                            The  team  met  prior  to  regularly  

                                                                                                                      



scheduled court status hearings to review and discuss the progress of Mollica and other  

                                                                                                                             



Wellness Court participants.  The participants were not permitted to be present.  As part  

                                                                                                                               



of his agreement, Mollica was required to waive any right to attend these meetings.  

                                                                                                                                      



However,  Mollica and  the other  participants in the program attended  the regularly  

                                                                                                                       



scheduled status hearings.  

                           



                    Under theagreement, "[s]anctions w[ould] bediscussed by the[therapeutic  

                                                                                                                   



court] team" and would "not necessarily be placed on the record." The agreement further  

                                                                                                                           



stated, "Ultimately, the therapeutic court judge will decide if specific sanctions will be  

                                                                                                                                 



imposed.  The final decisions about the imposition of sanctions are in the Court's sole  



discretion.  The participant has no right to appeal the Court's decisions."  

                                                                                               



                    A  nearly  identical  provision  applied  to  the  decision  to  discharge  a  

                                                                                                                                  



participant  from the  Wellness  Court.                       According  to  the  agreement,  "[t]he  decision  

                                                                                                                        



regarding  a  participant's  discharge  will  be  discussed  by  the  team"  and  "[t]hese  

                                                                                                                        



discussions will not necessarily be placed on the record."  In the end, however, "the  

                                                                                                                              



therapeutic court judge will decide if a defendant is discharged from the program" and  

                                                                                                                                



"[t]he final decisions about discharge are in the Court's sole discretion" and cannot be  

                                                                                              



appealed by a participant.  

                       



                                                              - 5 -                                                           2711
  


----------------------- Page 6-----------------------

                    TheRule11 pleaagreement further set forth thecircumstancesunder which  

                                                                                                                          



a participant could be discharged from Wellness Court.  The agreement provided that  

                                                                                                                             



discharge from the program may occur if:  

                                                             



                    progressive  sanctions  have  previously  been  ordered  and  

                                                                                                         

                    treatment adjustments have been made, but the therapeutic  

                                                                                              

                    court judge concludes that the participant:  

                                                                                     



                              (i)	      will not be able to complete the program within  

                                                                                                      

                                        two years;  

                                                



                              (ii)	     is  consistently  undermining  the  progress of  

                                                                                             

                                        others in the therapeutic court program;  

                                                                                       



                              (iii)	    has stalked, threatened, assaulted or otherwise  

                                                                             

                                        harassed other therapeutic court participants;  

                                                                                          



                              (iv)	     falsified alcohol or drug test samples or results  

                                                                                                     

                                        or   falsely  reported   attendance   at  program  

                                                                                                 

                                        meetings;  



                              (v)	      provides excessive positive, diluted, or missed  

                                                                                                     

                                        drug test samples; or,  

                                                                     



                              (vi)	     will not be able to make regular progress in the  

                                                                                                           

                                        therapeutic          court       program         because         the  

                                                                                                        

                                        participant requires resources  or  services that  

                                                                                                         

                                        the therapeutic court program cannot provide.  

                                                                                                  



                    The  agreement  provided  that  the  participant  will  be  discharged  from  

                                                                                                                           



Wellness Court upon any of the following circumstances:  

                                                                 



                              (i)	      Conviction of a crime involving distribution of  

                                                                                                            

                                        drugs.  



                              (ii)	     Conviction of a DUI, any felony offense or any  

                                                                                                          

                                        misdemeanor            under       AS       11.41,   with         the  

                                                                                                        

                                        exception  of  reckless  endangerment,  second  

                                                                                                    

                                        degree       custodial        interference         or    indecent  

                                                                                                

                                        exposure.  



                                                             - 6 -	                                                         2711
  


----------------------- Page 7-----------------------

                                                                        (iii)	                 Use   of   a   false   identity   that   has   concealed a  

                                                                                               criminal   history   which   would   disqualify   the  

                                                                                               participant from admission to the program; or                                                                                                               



                                                                        (iv)	                   Six   positive,   missed,   diluted,   tampered or  

                                                                                               falsified alcohol or drug tests after admission to                                                                                                              

                                                                                               the therapeutic court program.                                                                                    However, for   

                                                                                               ANY   positive,   missed,   diluted,   tampered,   or  

                                                                                               falsified alcohol or                                                    drug   test,   the therapeutic   

                                                                                               court team will seriously evaluate whether the                                                                                                             

                                                                                               participant's   continued   participation   in   the  

                                                                                               program will be permitted.                                 



                                                                        (v)	                   Upon a judicial finding of a preponderance of                                                                                                                 

                                                                                               the   evidence,   that   the   participant   drove   any  

                                                                                               motor   vehicle    (as    defined    in    AS    28.90- 

                                                                                                .990(a)(l6)) when ordered not to do so.                                                                                         



                                                Although the agreement specified that a participant "will" be discharged if                                                                                                                                                                                    



any   of   the   listed   circumstances   occurred,  the   agreement   had   a   savings   clause   that  



provided   discretion   to   not   discharge   a   participant:     "The   Therapeutic   Court   Team  



reserves the right to review each situation requiring discharge from the program on a                                                                                                                                                                                                                           



case-by-case basis.                                                     Upon unanimous agreement of the team, an individual may be                                                                                                                                                                         



conditionally reinstated in the program."                                                                                                           



                       Mollica's performance in Wellness Court                                                                                                                



                                                Mollica entered the Palmer Wellness Court in June 2017.                                                                                                                                                            Two months   



later, Mollica was arrested for assaulting his girlfriend. Mollica pleaded guilty to fourth-                                                                                                                                                                                                

degree assault in 3PA-17-01372 CR and received a sentence of 30 days to serve.                                                                                                                                                                                                                  6  



            6           AS 11.41.230(a)(1).  



                                                                                                                                                  - 7 -	                                                                                                                                             2711
  


----------------------- Page 8-----------------------

                    Because Mollica was convicted of a misdemeanor crime under AS 11.41  

                                   



(crimes against a person), he could have been discharged from the program under the  

                                                                                                                              



provision that stated "[t]he participant will be discharged from the [Wellness] Court  

                                                                                                                          



Program upon . . . [c]onviction of . . . any misdemeanor under AS 11.41, with the  

                                                                                                                              



exception of reckless endangerment, second-degree custodial interference or indecent  

                                                                                                                      



exposure."  



                    However,thetherapeuticcourtteamexerciseditsdiscretion toconditionally  

                                                                                                                



reinstate  Mollica  in  the  program  with  additional  restrictions,  including  additional  

                                                                                                                   



treatment, a curfew, and a no-contact order with the assault victim. At a Wellness Court  

                                                                                                                           



hearing on September 7, 2017, Mollica expressed his gratitude to the court for allowing  

                                                                                                                      



him to remain in the program.  

                                



                    On September 11, Mollica was released from custody for the assault on his  

                                                                                                                               



girlfriend, and he entered transitional housing for substance abuse treatment.  

                                                                                                     



                    Three days later, on September 14, Mollica had a regularly scheduled  

                                                                                                                   



Wellness Court hearing.  After checking in with the court, Mollica acknowledged that  

                



he had been "butting heads" with people in treatment.  The court reminded Mollica that  

                                                                                                                              



"things are evaluated on a weekly basis," that it was a "tight operation at this point," and  

                                                                                                                              



that Mollica had "a lot at stake," including several years hanging over his head.  

                                                                                                                          



                    The court then discussed an incident that occurred on Mollica's first day  

                                                                                                                              



at the housing program, September 11.  Mollica admitted to going to collect his car,  

                                                                                                                             



phone, and clothing instead of going straight to the housing unit, where a staff member  

                                                                                                                       



was waiting to check him in. The court sanctioned Mollica with six hours of community  

                                                                                                                  



work service to impress upon him the importance of following the program's rules.  

                                                                                                                                    



Mollica said that he would complete the community work service, and that the court  

                                                                                                                           



would see improvement by the following week.  

                                                                



                                                             - 8 -                                                          2711
  


----------------------- Page 9-----------------------

                                 The   prosecutor   also   noted   on   the   record   that,   as   far   as   the   State   was  



concerned, Mollica had already "used his one chance" when he was not discharged for                                                                                                                              



the August assault. The prosecutor stressed that Mollica needed to follow through on his                                                                                                                          



promises to work harder.                      



                                 After   being   sanctioned   at  the   hearing,   Mollica   did   not   return   to   his  



transitional housing program as required.                                                               Instead, he absconded from the program and                                                             



did not attend his required therapeutic meetings.                                                                        The next day, Mollica drove his car (a                                                    



violation of Wellness Court rules) and abandoned his vehicle in the middle of Tudor                                                                                                                     



Road in Anchorage.                                     Mollica was subsequently arrested and charged with criminal                                                                                 



trespass in a new case (3AN-17-07513 CR) after he attempted to enter the Anchorage                                                                                                           



                                                                            7  

Police Department unlawfully.                                                                                                                                                                             

                                                                                 Mollica admitted to being under the influence of drugs  



                             

during this incident.  



                                                                                                                                                                                                       

                                 In response to the new incident, the State filed a third petition to revoke  



                                                                                                                                                                                                     

Mollica's probation in the Anchorage robbery case (3AN-11-04977 CR).  The petition  



                                                    

alleged that Mollica had violated the conditions of his probation by committing a new  



                                                                   

offense, criminal trespass.  



                                                                                                                                                                                                   

                                 The State also filed a motion for Mollica's immediate remand to custody,  



                                                                                                                                                                                                 

alleging that Mollica had violated the conditions of release set by the Palmer Wellness  



                                                                                                       

Court.  The motion was supported by an affidavit that described Mollica's conduct on  



                                                                                                                                                                                                  

September 14 and 15 - namely, that Mollica had absconded from his housing program,  



                                                                                                                                                                                                                 

failed to attend therapeutic meetings, driven and abandoned his car in the middle of the  



                                                                                                                                                    

road, and been arrested for a new crime, criminal trespass.  



                                                                                                                                                                                                      

                                 On  September  18,  a  hearing  was  held  on  the  third  petition  to  revoke  



                                                                                                                                                                                                               

probation in the Anchorage robbery case.  At the hearing, Mollica admitted that he had  



        7        Anchorage Municipal Code 08.45.010(A)(3)(a).  



                                                                                                      - 9 -                                                                                                  2711
  


----------------------- Page 10-----------------------

violated his probation by "committing the offense of criminal trespass," and the court                                                       

imposed 10 days of his suspended time.                               8  



                                                                                                                                             

                       The Palmer Wellness Court held a regularly scheduled meeting that same  



                                                                                                                                               

week.  Although Mollica's attorney was present, Mollica was not because he was still  



                                                                                                                                                

in custody in Anchorage.  The court delayed "sentencing" and "imposing the Rule 11"  



                                  

until the following week.  



                                                                                                                                        

                       Mollica was present at the next hearing on September 28.  The hearing  



                                                                                                                                          

began with the court asking Mollica how he was doing. Mollica indicated that he "could  



                                                                                                                                               

be better," and the court acknowledged that "this is not a happy day for me either."  The  



                                                                                                                                          

court noted that they had been "trying to figure out ways to avoid where we are today"  



                                                                                                                                               

and "it's a sad day for me to have to see where we're at."  The court then explained that  



                                                                                                                                            

the problem was not just the "lack of participation, sort of running away from the entire  



                                                                                                                                           

thing" but that it was the criminal conduct on top of the lack of participation "that makes  



                                                                                      

it really tough to keep you back in the program."  



                                                                                                                                                

                       Mollica acknowledged he had struggled to stay sober, but he requested that  



                                                                                                                                       

he be allowed to continue in Wellness Court and do residential treatment.   Mollica  



                                                                                                                                        

admitted that he had used drugs, and he stated that he had not returned to his housing  



                                                                                                                                              

because he did not want to jeopardize the sobriety of the other participants.  He also  



                                                                                                                                                

stated that he went to the police department in order to turn himself in.  Mollica did not  



                                                                                                                                          

otherwise dispute the allegations in the State's petition to revoke probation and motion  



                                         

for immediate remand.  



                                                                                                                                               

                       Mollica's defense attorney also requested that Mollica be allowed to stay  



                                                                                                                                                

in the program. She acknowledged that Mollica had "really messed up" and that the rest  



      8     According to CourtView, Mollica ultimately pleaded guilty to the separate charge of               



criminal trespass on October 19, 2017.  



                                                                     -  10 -                                                                 2711
  


----------------------- Page 11-----------------------

of the therapeutic court team believed discharge was appropriate.  But she argued that  

                             



Mollica should be allowed to stay so that he could undertake residential treatment.  

                                                                                                               



                    After listening to Mollica and his defense attorney, the court decided that  

                                                                                                                              



it would not make a final decision that day.  Instead, it would discuss the matter further  

                                                                                                                          



with the therapeutic court team.   The court indicated that it intended to review what  

                                                                                                                            



Mollica had been doing "over the last month or so" and was particularly concerned about  

                                                                                                                            



community safety in light of his new criminal conduct.  

                                                                       



                    At the end of the hearing, another Wellness Court participant spoke on  

                                                                                                                                



Mollica's behalf, stating that when Mollica was sober he was a "stand-up person."  The  

                                                                                                                              



participant stated that Mollica had  been  instrumental in helping him engage in  the  

                                                                                                                               



program.  



                    The next hearing was held a week later, on October 5.  At the hearing, the  

                                                                                                                                



court  indicated  that  it  had  met  with  the  treatment  team  and  considered  their  

                                                                                                                            



recommendations.  The court asked if anyone had any additional statements to make  

                                                                                                                            



before the court made its final decision. Mollica's defense counsel restated her position  

                                                                                                                        



that Mollica should be allowed to remain in Wellness Court.   The court then asked  

                                                                                                                           



Mollica directly if there was anything further that he wanted the court to know. Mollica  

                                                                                                                         



did not have anything to say about the imminent decision regarding discharge. However,  

                                                                                                                      



he did ask the court to recommend to the Department of Corrections that he be admitted  

                                                                                                                       



to the Residential Substance Abuse Treatment program once he was incarcerated.  

                                                                                                         



                    The court then made its final decision, noting that it had taken several  

                                                                                                                         



weeks to come to this decision and it did not come to it "lightly."  The court noted that,  

                                                                                                                              



at times, Mollica had done well, but found that, overall, Mollica had done "extremely  

                                                                                                                   



poorly" in the approximately three months he had participated in Wellness Court.  The  

                                                                                                                              



court further found that when Mollica used drugs, he became violent and unpredictable.  

                                                                                                                                     



The court noted that, on September 14, Mollica had been specifically told to go directly  

                                                                                                                         



                                                             -  11 -                                                         2711
  


----------------------- Page 12-----------------------

to his housing unit, not to drive, and to attend all of his appointments.  But he "blew all  

                                                                                                                                



that off." The court indicated that the pertinent question was whether the program could  

                                                                                                                            



meet his needs, and his recent behavior showed that the program was not working for  

                                                                                                                                



him.  



                    The court also explained that it was "extremely concerned" about how  

                                                                                                                             



Mollica's  conduct  impacted  other  treatment  participants.                                The  court  referred  to  an  

                                                                                                                                



incident,  not  previously  discussed  on  the  record,  in  which  Mollica  had  apparently  

                                                                                                                   



brought an intoxicated woman to treatment.  

                                                    



                    The court also referred to the August assault, noting the seriousness of the  

                                                                                                                                



assault  and  how  relatively  recent  it  was.                     The  court  cited  to  an  incident,  also  not  

                                                                                                                               



previously discussed on the record, in which the probation officer heard a recorded  

                                                                                                                      



phone call between Mollica and his girlfriend (the victim of the assault).  In this phone  

                                                                                                                           



call, Mollica attempted to pressure his girlfriend into writing a letter of support for him  

                                                                                                                              



when she did not want to.  

                                         



                    Ultimately, the court concluded that Mollica should be discharged based  

                                                                                                                           



on two different provisions in the Wellness Court agreement - (ii) "[the participant] is  

                                                                                                                                  



consistently undermining the progress of others in the therapeutic court program" and  

                                                                           



(vi) "[the participant] will not be able to make regular progress in the therapeutic court  

                                                                                                                            



program because the participant requires resources or services that the therapeutic court  

                                                                                                                            



program  cannot  provide."                   However,  the  court  indicated  that  it  would  make  the  

                                                                                                                               



recommendation for the Residential Substance Abuse Treatment program that Mollica  

                                                                                                                        



had requested.  

        



                    Following his discharge fromWellness Court, Mollica was sentenced to 30  

                                                                                                                                 



months to serve in the Palmer case in accordance with his Rule 11 agreement. At a later  

                                                                                                                             



disposition hearing on the second petition to revoke probation in the Anchorage robbery  

                                                                                                                         



                                                             -  12 -                                                         2711
  


----------------------- Page 13-----------------------

 case, the court terminated Mollica's probation and imposed 3 years of his remaining                                                                                                                                                                                                                                                                                                                                                                                                                         



 suspended time.   



                                                                                       This appeal followed.                                                                                                                          



                                           A preliminary note regarding Mollica's right to pursue this appeal                                                                                                                                                                                                                                                                                                                                    



                                                                                       As previously mentioned, in order to join Palmer Wellness Court, Mollica                                                                                                                                                                                                                                                                                                                                                               



was required to sign a Criminal Rule 11 agreement that detailed the terms and conditions                                                                                                                                                                                                                                                                                                                                                                                                                     



 of his participation in the therapeutic court.  As part of this agreement, Mollica agreed                                                                                                                                                                                                                             



that the final decision about discharge would rest in the sole discretion of the therapeutic                                                                                                                                                                                                                                                                                                                                                                                                             



 court judge, and he would have no right to appeal the judge's decision.                                                                                                                                                                                                                                                                                                                                                                                                        



                                                                                       In his opening brief, Mollica argues that this waiver of his future appellate                                                                                                                                                                                                                                                                                                                                                  



rights was invalid and against public policy. In response, the State claims that the waiver                                                                                                                                                                                                                                                                                                                                                                                                                                          



was valid.  But the State also contends that the waiver did not apply to a circumstance                                                                                                                                                                                                                                                                                                                                                                       



 such as the one presented here, where the defendant is not challenging the substance of                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



the therapeutic court's decision but instead is bringing a due process challenge to the                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



procedures that led to that decision.                                                                                                                                      



                                                                                       Because the parties agree that any waiver of Mollica's appellate rights does                                                                                                                                                                                                                                                                                                                                                                                



not apply to this appeal, we do not address the validity of Mollica's waiver or his public                                                                                                                                                                                                                                                                                                                                                                                                                                              



policy arguments against such waivers.                                                                                                                                                                                                                             



                                           Mollica's   due   process  challenges   to   the   procedures   by   which   he   was  

                                            discharged from the Palmer Wellness Court                                                                                                                                                                                                             



                                                                                       Both the Alaska and United States Constitutions guarantee the right to due                                                                                                                                                                                                                                                                                                                                                                                        



                                                     9  

process.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                     Due process entitles individuals to a "meaningful and fundamentally fair"  



                      9                    U.S. Const. amend. XIV, § 1; Alaska Const. art. I, § 7.  



                                                                                                                                                                                                                                                                      -  13 -                                                                                                                                                                                                                                                                         2711
  


----------------------- Page 14-----------------------

                                                                                                10  

process when their liberty or property interest is at stake.                                        What process is required and                

whether   due   process  has   been   met   is   a   question   of   law that                                  we   review   de   novo.11  



                                                                                                                                             

                       Mollica asserts that the proceedings that resulted in his discharge from  



                                                                                                                                           

Wellness Court violated two facets of his due process rights: the right to adequate notice  



                                                                                                                                            

of the allegations against him and the right to a meaningful hearing where he could  



                                                                                                                      12  

                                                                                                                                                 

contest the allegations and offer a defense or a mitigating explanation.                                                  In response, the  



                                                                                                                                               

State argues that the procedures provided to Mollica  were sufficient to  satisfy  due  



                                                                                                                                  

process.           The  State  also  asserts  that  instituting  overly  formalized  or  adversarial  



                                                                                                                               

proceedings in therapeutic court would harm the efficacy of such courts.  



                                                                                                                                                  

                       We begin our analysis by noting that there is little appellate case law in  



                                                                                                                                                    

Alaska addressing the due process rights of criminal defendants who participate in a  



                                                                                                                                                    

post-plea therapeutic court program such as the Palmer Wellness Court.  However, a  



                                                                                  

significant body of law has developed in other jurisdictions.  



                                                                                                                                            

                       The general consensus among courts that have grappled with these issues  



                                                                                                                                            

is that therapeutic court participants facing termination are entitled to due process rights  



                                                                                            13  

                                                                      

akin to those afforded to parolees and probationers.                                                                                           

                                                                                                  Thus, when defining the due  



      10    See Champion v. Dep't of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986).  



      11   D.M. v. State, Div. of Fam. & Youth Servs., 995 P.2d 205, 207 (Alaska 2000).  



      12    See Powell v. State             , 460 P.3d 787, 793 (Alaska App. 2020) ("Due process requires   



that there be adequate notice to the interested parties of the pendency of the action and the                            

opportunity for the interested parties to be heard.").  



      13    See, e.g., State v. Shambley, 795 N.W.2d 884, 894 (Neb. 2011) (noting that "[t]he  

                                                                                                             

majority of  other  courts  considering  the  issue  have  determined  that  participants  facing  

                                           

termination from post-plea diversion programs, such as the drug court program, are entitled  

                              

to the same due process protections as persons facing termination of parole or probation");  

                                                                                                                  

see also Gaither v. State, 296 So. 3d 553 (Fla. App. 2020); State v. Rogers, 170 P.3d 881  

                                                                                                                                

                                                                                                                               (continued...)  



                                                                     -  14 -                                                                 2711
  


----------------------- Page 15-----------------------

process   rights   of   therapeutic   court   participants,   courts   have   frequently   turned   for  



guidance to          Morrissey v. Brewer                  and   Gagnon v. Scarpelli                  , the United States Supreme         



Court's seminal cases governing the due process rights of parolees and probationers in                                                            



                                          14  

                                                                                     

revocation proceedings.                       We do the same here.  



                                                                                                                                       

                       In Morrissey v. Brewer, the United States Supreme Court held that due  



                                                                                                                                  

process attaches to parolees in parole revocation proceedings, despite the conditional  



                                                                                                                                                

nature of a parolee's liberty interest and the fact that parole revocation occurs after the  



                                                         15  

                                                                                                                                     

end of the criminal prosecution.                              The Court came to the same conclusion regarding  



                                                                                                   16  

                                                                                                                                                    

probation revocation proceedings in Gagnon v. Scarpelli.                                                As the Court explained:  



                                                                                                                 

                       Both the probationer or parolee and the State have interests  

                                                                                                                          

                       in  the  accurate  finding  of  fact  and  the  informed  use  of  

                                                                                                                         

                       discretion - the probationer or parolee to insure that his  

                                                                                                                      

                       liberty is not unjustifiably taken away and the State to make  

                                                                                                                           

                       certain   that   it   is   neither   unnecessarily   interrupting   a  



      13    (...continued)  



                                          

(Idaho 2007); People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005); Gosha v. State, 931  

                                                                   

N.E.2d 432 (Ind. App. 2010);  State  v.  Brookman, 190 A.3d 282 (Md. 2018); People v.  

Joseph , 785 N.Y.S.2d 292 (N.Y. App. 2004); State v. Perkins, 661 S.E.2d 366 (S.C. 2008);  

State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993); Harris v. Commonwealth, 689 S.E.2d 713  

                                                                                                                 

(Va. 2010); State v. Cassill-Skilton, 94 P.3d 407 (Wash. App. 2004). See generally National  

Drug Court Institute, The Drug Court Judicial Benchbook 164-69 (Douglas B. Marlowe &  

                                                                                                              



                                                                                                          

William G. Meyer eds., rev. 2017) (discussing the approaches of courts to determine the due  

                             

process rights of defendants in drug courts).  



      14   Morrissey v. Brewer , 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 (1973).  



      15  

                                                                                                                                  

           Morrissey , 408 U.S. at 480 ("Revocation deprives an individual, not of the absolute  

                                                                                                                                       

liberty  to  which  every  citizen  is  entitled,  but  only  of  the  conditional  liberty  properly  

dependent on observance of special parole restrictions.").  



      16    Gagnon, 411 U.S. at 782; see also Paul v. State, 560 P.2d 754, 756 (Alaska 1977)  



                                                                          

(explaining due process requirements apply to both parole and probation revocations).  



                                                                     -  15 -                                                                 2711
  


----------------------- Page 16-----------------------

                       successful effortatrehabilitationnor imprudently                                    prejudicing  

                       the safety of the community.                      [17]  



                                                                                                                                                

                       The same interests are at stake in therapeutic court programs.   As the  



                                                                                                     

Nebraska Supreme Court explained in State v. Shambley:  



                                                                                                                  

                                  As  with  parole  and  probation,  it  is  in  the  State's  

                                                                                                                   

                       interests that drug court participants are restored to a normal  

                                                                                                                                

                       and useful life.  This is, after all, the point of the program.  

                                                                                                                            

                       Accordingly, the State, like the participant, has an interest in  

                                                                                                                 

                       seeing  that  there  is  a  termination  process  which  ensures  

                                                                                                                           

                       participants are not terminated from the program because of  

                                                                                                             

                       erroneous information or because of an erroneous evaluation  



                                                                 [18]  

                                                 

                       of the need to terminate. 



                                                                                   

An Illinois appellate court similarly explained:  



                                                                                                          

                                   The  drug-court  program  is  a  form  of  conditional  

                                                                                                                

                       liberty like supervision, probation, or parole.  Each program  

                                                                                                                           

                       requires the participant to comply with certain conditions or  

                                                                                                               

                       face the loss of the privilege.  Revocation of that privilege  

                                                                                                  

                       may not be accomplished without inquiry.  



                                         

                                   . . . .  



                                                                                                                          

                                   Even  though  defendant  did  not  have  the  right  to  

                                                                                                                           

                       participate in the drug-court program, as it was a matter of  

                                                                                                                

                       legislative           and       judicial         grace,         due       process           should  



                                                                                                                 [19]  

                                                                                                  

                       circumscribe summary dismissal from that program. 



      17    Gagnon, 411 U.S. at 785; see also Morrissey, 408 U.S. at 484 ("Society thus has an   



interest in not having parole revoked because of erroneous information or because of an                                                           

erroneous evaluation of the need to revoke parole, given the breach of parole conditions.").                        



      18    Shambley, 795 N.W.2d at 894.  



      19   People v. Anderson, 833 N.E.2d 390, 395 (Ill. App. 2005).  



                                                                     -  16 -                                                                 2711
  


----------------------- Page 17-----------------------

                           Recognizing that dueprocess                                appliestoterminations fromtherapeuticcourt                                      



programs is also consistent with the intended rehabilitative purpose of such programs.   



As the United States Supreme Court explained in the context of parole revocations,                                                                     



"Society has a further interest in treating the parolee with basic fairness:                                                                       Fair treatment   



in parole revocations will enhance the chance of rehabilitation by avoiding reactions to                                                                                    



                             20  

arbitrariness."                                                                                                                                                               

                                  The same is true with regard to participants facing termination from a  



                                                                                                                                                                   

therapeutic court program.  If the process is fair, the participant is more likely to accept  



                                           

the outcome, even if adverse.  



                                                                                                                                                          

                           The question, therefore, becomes how much process is due to a participant  



                                                                                                                                                         

facing termination froma therapeuticcourt program? As the Supreme Court emphasized  



                                                                                                                                                                   

in Morrissey, the requirements of due process are flexible, and "not all situations calling  



                                                                                                                                  21  

                                                                                                                                                                         

                                                                                                                                        Because parole and  

for procedural safeguards call for the same kind of procedure." 



                                                                                                                                                                    

probation revocations are not part of a criminal prosecution, the full panoply of rights  



                                                                                                                                                                         

due to a defendant in a criminal proceeding does not apply.  Instead, the procedures can  



                                                                                                                                      22  

                                                                                                                                           

be more flexible and informal than would occur at a criminal trial. 



                                                                                                                                                                        

                           Ultimately,  the  due  process  protections  recognized  in  Morrissey  and  



                                                                                                                                                                         

Gagnon include:   (1) written notice of the claimed violations; (2) disclosure to the  



                                                                                                                                                                            

parolee/probationer of the evidence against them; (3) the opportunity to be heard in  



                                                                                                                                                                         

person and to present witnesses and documentary evidence; (4) the right to confront and  



                                                                                                                                                                     

cross-examineadversewitnesses (unless thehearing officerspecificallyfinds good cause  



                                                                                                                                                                           

for not allowing confrontation); (5) an independent decisionmaker; and (6) a record by  



       20    Morrissey , 408 U.S. at 484.  



       21    Id. at 481.  



       22    Id. at 489-90; Gagnon, 411 U.S. at 781-82.  



                                                                                  -  17 -                                                                              2711
  


----------------------- Page 18-----------------------

the   factfinder   as   to   the   evidence   relied   on   and   the   reasons   for   revoking   parole   or  



                   23  

probation.             



                                                                                                                                         

                        These  requirements  are  not  intended  to  result  in  overly  formalized  



                                                                                                                                               

procedures.              As the Supreme Court emphasized,  "[T]he process should be flexible  



                                                                                                                                                  

enough to consider evidence including letters, affidavits, and other material that would  



                                                                                              24  

                                                                                                                          

not be admissible in an adversar[ial] criminal trial." 



                                                                                                                                                     

                        Moreover, a court's failure to comply with one of these requirements does  



                                                                                                                      25  

                                                                                                                                                       

not automatically  require reversal of the revocation  on  appeal.                                                           For  example,  the  



                                                                                                                                                       

appellate court will not reverse a revocation solely because the probationer did not  



                                                                                                                                                         

receive written notice if the probationer received adequate oral notice and there were no  



                                                                                                    26  

                                                                                                         

objections to a lack of notice in the proceedings below. 



                                                                                                       

                        In the current case, Mollica asserts that he "never received written notice  



                                                                                                                                                      

of his potential termination from therapeutic court or the purported grounds for that  



                                                                                                                          

termination."  He also argues that he did not receive adequate oral notice.  



      23    Morrissey , 408 U.S. at 489;                       Gagnon, 411 U.S. at 786.                     Morrissey  and Gagnon  both  



require a "written statement" of the factfinder's decision, but subsequent case law has made   

clear that this requirement is met by an oral record.                                   See Black v. Romano                 , 471 U.S. 606, 616  

(1985);   United States v. Yancey                        , 827 F.2d 83, 88-89 (7th Cir. 1987);                               see also  2 Neil P.  

Cohen,   The Law of Probation and Parole   § 25:22 (2d ed. 2020) (describing the purposes  

served by the record of a revocation hearing and the necessary components to be included                       

in the record under Morrissey).  



      24    Morrissey , 408 U.S. at 489.  



      25    Cf. 2 Neil P. Cohen,  The Law of Probation and Parole § 18:3 (2d ed. 2020) ("In  

                                                                                                                                                      

sketching these mandatory procedures, the Morrissey Court was careful to note that it was  

                                                                                               

not trying to create an 'inflexible structure.'  The actual details of revocation procedures, it  

                                                                                                                   

held, were the responsibility of individual states.").  

                                                        



      26    See State v. Patton, 68 N.E.3d 273, 277 (Ohio App. 2016).  



                                                                         -  18 -                                                                     2711
  


----------------------- Page 19-----------------------

                    But  the  record  indicates  otherwise.                     As  the  State  points  out,  Mollica  

                                                                                                                         



received written notice of his potential termination from the therapeutic court when the  

                                                                                                                                



State filed its motion for immediate remand for violating the conditions of his release in  

                                                                                                                                  



the Palmer Wellness Court.  The motion was supported by an affidavit that detailed the  

                                                                                                                                 



violations, which included Mollica absconding from his housing program, using illegal  

                                                                                                                            



drugs, failing to attend therapeutic meetings, driving and then abandoning his car in the  

                                                                                                                                 



middle of the road, and being arrested for a new criminal offense, criminal trespass.  

                                                                                                                                  



                    It is true that the motion for immediate remand did not directly apprise  

                                                                                                                          



Mollica of the fact that he was facing termination based on this conduct.  But the record  

                                                                                                                           



demonstrates that Mollica was well aware of that fact. Both the judge and the prosecutor  

                                                                                                                     



had warned Mollica at the September 14 hearing that he needed to comply fully with the  

                                                                                                                                 



program after being conditionally reinstated following the domestic violence assault  

                                                                                                                          



against his girlfriend.  Despite these warnings, Mollica left the hearing and engaged in  

                                                                                                                                  



the conduct that led to his termination.  

                                                             



                    Mollica's statements at the September 28 hearing also demonstrate that he  

                                                                                                                                  



was well aware that he was facing termination based on his recent conduct.  And there  

                                                                                                                             



is nothing in the record to suggest that he was unprepared for the September 28 hearing.  

                                                                                                                                      



Indeed, the record suggests that he had arranged for another Wellness Court participant  

                                                                                                                     



to speak on his behalf at that hearing.  

                                                           



                    Giventhesecircumstances, werejectMollica's claimthathedid not receive  

                                                                                                                           



adequate notice of the termination hearing or the grounds for termination.  

                                                                                                                    



                    We likewise reject Mollica's claim that he was never provided with an  

                                                                                                                                 



opportunity to be heard with regard to the discharge decision.  The record shows that  

                                                                                                                               



Mollica was given an opportunity to be heard at the September 28 hearing and to present  

                                                                                                                          



any defense or mitigating evidence he might have.  At that hearing, Mollica admitted to  

                                                                                                                                  



using drugs and absconding fromthe housing program, but he put forward the mitigating  

                                                                                                                      



                                                              -  19 -                                                         2711
  


----------------------- Page 20-----------------------

explanation that he had not returned to the housing unit because he did not want to  

                                                                                                                                 



jeopardize the sobriety of the other participants.  Mollica also asserted that he was at the  

                                                                                                                                



Anchorage  Police  Department  because  he  wanted  to  turn  himself  in.                                       Contrary  to  

                                                                                                                                



Mollica's arguments on appeal, there is nothing in the record to suggest that Mollica felt  

                                                                                                                               



he was being treated unfairly or that there was additional evidence or information that  

                                                                                                       



Mollica wanted the court to consider.  

                                                            



                    We also note that Mollica was expressly given an opportunity to be heard  

                                                                                                                            



at the October 5 hearing in which the therapeutic court judge made her final decision  

                                                                                                                       



regarding termination. Mollica took this opportunity to request the recommendation for  

                                                                                                                                



the Residential Substance Abuse Treatment program, but he had nothing additional to  

                                                                                                                 



say.  



                     On appeal, Mollica takes issue with the therapeutic court judge's reference  

                                                                                                                      



in the October 5 hearing to "previously unmentioned incidents" - namely, Mollica  

                                                                                                                        



bringing an intoxicatedwoman to treatment and Mollicapressuringhis girlfriend to write  

                                                                                                                             



him a letter of support.  Mollica argues that the judge's references to these incidents  

                                                                                                                      



show that "the purported basis for which Mollica faced termination shifted during the  

                                                                                                                               



proceedings."  

                        



                    We disagree with this characterization of the record.  It is clear from the  

                                                                                                                               



record  that  Mollica  was  terminated  from  the  program  because  of  his  conduct  on  

                                                                                                                                



 September 14 and 15 - the conduct for which he had notice and an opportunity to  

                                                                                                                                 



respond.  It is also apparent that this conduct led to his termination because it occurred  

                                                                                                                       



only days after he was released from custody for committing what was an otherwise  

                                                                                                                     



disqualifying domestic violence assault against his girlfriend.  

                                                                               



                    Notably, neither Mollica nor his attorney objected to the references to the  

                                                                                                                                



other incidents mentioned at the October 5 hearing.   Nor did either of them express  

                                                                                                                        



                                                             - 20 -                                                          2711
  


----------------------- Page 21-----------------------

 surprise at the references to the other incidents. On the contrary, it appears that the court                                                                                                                                                                                                                                                                                                                                                            



was referencing incidents that were already known to the parties.                                                                                                                                                                                                                                                                                                     



                                                                         We also do not find persuasive Mollica's assertion on appeal that he never                                                                                                                                                                                                                                                                                                     



had an opportunity to respond to these allegations.  Even if Mollica felt ill-prepared to                                                                                                                                                                                                                                                                                                                                                                                  



respond   to   these   incidents  in   the   October   5   hearing,   Mollica   could   certainly   have  



 challenged the incidents at his later disposition hearing.                                                                                                                                                                                                                                                      Indeed, we would expect that  



Mollica  would  have challenged them at the disposition hearing if he actually believed                                                                                                                                                                                                                                                                                                                                                



they had been important to the court's decision to discharge him and if he, in fact, had                                                                                                                                                                                                                                                                                                 



grounds to challenge them.                                                                                                                                  Accordingly, we conclude that any error in the court's                                                                                                                                                                                                                            



reference to additional incidents at the October 5 hearing was harmless given the larger                                                                                                                                                                                                                                                                                                                                                              



 context in which they occurred and the due process protections that Mollica did receive.                                                                                                                                                                                                                                                                                                                                                                                                   



                                                                         All that said, we agree, as a general matter, that a defendant should be given                                                                                                                                                                                                                                                                                                  



notice and an opportunity to respond to information that will be used against them in a                                                                                                                                                                                                                                                                                                                                                                                        



termination decision.                                                                                                We note that therapeutic judges are privy to a significant amount                                                                                                                                                                                                                                                       



 of information about therapeutic court participants and that much of this information is                                                                                                                                                                                                                                                                                                                                                                                    



 shared in off-the-record team meetings where the defendants' attorneys are present, but                                                                                                                                                                                                                                                                                                                                                                             



 defendants are not.                                                                                       While we recognize the value of informality in therapeutic court                                                                                                                                                                                                                                                                             



proceedings   as   a   general   matter,   we   encourage   courts   to   adopt   more   formalized  



procedures for termination hearings in order to ensure that basic due process protections                                                                                                                                                                                                                                                                                                                                 

 are met.                                   27  



                  27                 The question of what process is due for intermediate sanctions is not before us in this   



case.    We  note,  however,  that  courts  in  other  jurisdictions  have   held   that  intermediate  

 sanctions do not implicate the same due process concerns as the decision to terminate a                                                                           

participant  from  the  program.    See  State  v.  Rogers,  170  P.3d  881,  886  (Idaho  2007)  

 (explaining  that  it  is  not  the  court's  intent  to  impede  the  functioning  of   diversionary  

programs,"[i]ntermediate sanctions imposed in these programs do not implicate the same due   

                                                                                                                                                                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                                                                                            - 21 -                                                                                                                                                                                                                              2711
  


----------------------- Page 22-----------------------

                                             Mollica also argues that he was denied due process because, according to                                                                                                                                                                   



 Mollica,   the   court   failed   to   identify   the   "progressive   sanctions"   and   "treatment  



 adjustments" that had previously been made in his case.                                                                                                                                   But it is clear from the record                                                



 that the parties were already aware of the prior sanctions, such as six hours of community                                                                                                                                                               



 service, and treatment adjustments, such as Mollica's placement in transitional housing.                                                                                                                                                                          



 They were also aware that Mollica had been conditionally reinstated in the programafter                                                                                                                                                                                        



 his domestic violence assault against his girlfriend only as an act of clemency.                                                                                                                                                                                                 On  



 appeal, Mollica attempts to downplay the significance of that assault and the fact that his                                                                                                                                                                                         



 new misconduct occurred only three days after he was released from custody for the                                                                                                                                                                                                 



 assault.   But this background was clearly considered by the therapeutic court judge and                                                                                                                                                                                          



 formed an important part of her discharge decision.                                                                                         



                                             Lastly, we note that Mollica's case stands in stark contrast to cases in other                                                                                                                                                   



jurisdictions where termination decisions have been vacated because of a denial of due                                                                                                                                                                                             



                            28  

 process.                                                                                                                                                                                                                                                                                

                                         In  State  v.  Shambley,  for  example,  Shambley  was  discharged  from  a  



                                                                                                                                                              29  

                                                                                                                                                                                                                                                                               

 therapeutic court for testing positive for drugs.                                                                                                                      Shambley denied that she had used  



                                                                                                                                                                                                                                                                                   

 drugs on that occasion. At the termination hearing, Shambley was told that the team had  



            27         (...continued)  



                                                                                                                               

 process concerns, and continued use of informal hearings and sanctions need not meet the  

 procedural requirements" that apply to termination decisions).  



            28         See, e.g., People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005) (defendant summarily  



                                                                                                                                                                                                                                                                               

 dismissed from drug court without a hearing); Gosha v. State, 931 N.E.2d 432 (Ind. App.  

                                                                                                                                                                                                                                                           

 2010) (defendant discharged without prior notice and over his request for an evidentiary  

                                                                                                                     

 hearing); Harris v. Commonwealth, 689 S.E.2d 713 (Va. 2010) (defendant not present at  

                                                                                                                                                                                                                                                                    

 termination  hearing  from  drug  court  and  given  no  opportunity  to  be  heard);  State  v.  

 Cassill-Skilton, 94 P.3d 407 (Wash. App. 2004) (defendant discharged despite no notice of  

                                                                                          

 violations, no record of any hearing, and no record of any findings by trial court).  



            29         State v. Shambley, 795 N.W.2d 884, 890 (2011).  



                                                                                                                                      - 22 -                                                                                                                                     2711
  


----------------------- Page 23-----------------------

recommended that she be discharged and that she bore the burden of showing why                                                                                              



discharge was not appropriate.                                    The only evidence produced to support the termination                                       



was a letter with attachments from the drug court coordinator summarizing Shambley's                                                                         



difficulties in drug court.                              The attachments included an e-mail from an unidentified                                            



author to an unnamed recipient asserting that one of the drug tests in question was                                                                                          



"negative with a weak concentration, but should nevertheless be considered a positive  



               30  

result."                                                                                                                                                     

                    Shambley's lawyer objected to any consideration oftheletter or itsattachments  



                                                                                                                                                                    

on hearsay and foundation grounds.  The lawyer also objected on due process grounds,  



                                                                                                                                                                  

asserting that Shambley had not been given proper notice and was unable to challenge  



                                                                                                                                                              

the hearsay reports and unauthorized laboratory reports effectively.   The therapeutic  



                                                                                                                                                                            

court  judge  overruled  all  of  these  objections.                                                     The  Nebraska  Supreme  Court  later  



                                                                                                                                             

overturned these rulings and agreed with Shambley that basic due process protections  



                                     31  

                                           

had not been met. 



                                                                                                                                                                               

                            Here,  in  contrast  to  Shambley,  Mollica  never  objected  to  any  of  the  



                                                                                                                                                                              

procedures used to discharge him from the program.  Mollica also never suggested that  



                                                                                                                                                                                 

there was evidence that he wanted to challenge, or additional testimony or proof that he  



                                                                                                                                                                     

wanted to present.  Indeed, the record shows that Mollica directly admitted the conduct  



                                                                                                                                                                               

at  issue  and  that  he  had  a  meaningful  opportunity  to  challenge  the  grounds  for  



termination.  



                                                                                                                                                                                    

                            To summarize, we now join courts in other jurisdictions in holding that a  



                                                                                                                                                                       

defendant facing termination from a therapeutic court program is entitled to due process  



                                                                                                                                                                             

protections  akin  to  the  limited  due  process  protections  that  apply  to  parolees  and  



                                                                                                                                              

probationers facing revocation of their parole or probation.  These protections include  



       30     Id.   



       31     Id. at 895, 889-90.  



                                                                                     - 23 -                                                                                 2711
  


----------------------- Page 24-----------------------

written  notice  of  the  grounds  for  discharge,  disclosure  of  the  evidence  against  the  

                                                                                                                               



participant,  and  an  opportunity  to  rebut  that  evidence  and  offer  any  defenses  or  

                                                                                                                 



mitigating information.  

                  



                    However, because we are convinced, based on our review of the entire  

                                                                                                                           



record,  that  Mollica  received  these  basic  due  process  protections  and  that  any  

                                                                                                                             



deficiencies in the procedures used to terminate Mollica fromthe Palmer Wellness Court  

                                                                                                                            



did not prejudice Mollica, we affirm the termination decision in this case.  

                                                                                                         



          Mollica's excessive sentence claim  

                                                        



                    Mollica separately raises an excessive sentence claim with regard to his  

                                                                                                                



sentence for the second petition to revoke probation in his Anchorage case.  

                                                                                                            



                    After being discharged from Wellness Court, Mollica faced sentencing in  

                                                                                                                                 



his two underlying cases - 3AN-11-04977 CR (the second petition to revoke probation  

                                                                                                                      



in the Anchorage robbery case) and 3PA-16-02513 CR (the Palmer criminal mischief  

                                                                                                                       



case).  In the Palmer case, the court imposed the 30-month sentence that the parties had  

                                                                                                                               



agreed to as part of their Rule 11 agreement. In the Anchorage case, the court scheduled  

                                                                                                                     



a disposition hearing to address the second petition to revoke probation.  

                                                                                               



                    At the disposition hearing, the prosecutor reviewed Mollica's criminal  

                                                                                                                       



history,  which  included  three  prior  felonies,  the  underlying  robbery,  and  the  new  

                                                                                                                             



criminal  convictions  Mollica  had  accrued  through  his  probation  violations.                                           The  

                                                                                                                             



prosecutor argued that all of Mollica's suspended time (approximately 4 years and  

                                                                                                                              



10 months) should be imposed, asserting that probation was not working for Mollica.  

                                                                                                                                     



Mollica's probation officer agreed that Mollica's probation should be terminated, and he  

                                                                                                                                 



should  receive  a  flat  sentence  -  i.e.,  a  sentence  that  did  not  include  probation  or  

                                                                                                                                



suspended time.   The defense attorney argued that Mollica should receive a shorter  

                                                                                                                         



sentence and then be returned to probation.  

                                                   



                                                             - 24 -                                                          2711
  


----------------------- Page 25-----------------------

                                              The court found that Mollica "violated his probation to the letter[,] . . . he                                                                                                                                                               



ha[d] seriously not done well on probation for this robbery, and . . . the court would be                                                                                                                                                                                                        



well within its right to impose all of his time." However, the court concluded that the full                                                                                                                                                                                                  



amount of suspended time was not necessary given the time Mollica would serve in the                                                                                                                                                                                                           



Palmer criminal mischief case. Therefore, the court terminated Mollica's probation and                                                                                                                                                                                                        



imposed 3 years to serve of the approximately 4 years and 10 months remaining on                                                                                                                                                                                                                



Mollica's sentence.                                                   



                                              Mollica   now   appeals   the   3-year   sentence   as   excessive,   raising   several  



arguments.    First, he contends that he is entitled to be resentenced because he was                                                                                                                                                                                                      



deprived  of   an   opportunity   to   meaningfully   respond   to   the   court's   reasons   for  



discharging him from Wellness Court.                                                                                                   But as already explained, Mollica was given a                                                                                                                 



meaningful opportunity to respond to the reasons for discharge at the Wellness Court                                                                                                                                                                                                 



hearings. Moreover, there is nothing in the record to suggest that Mollica had additional                                                                                                                                                                               



information that he wanted the court to consider at the disposition hearing that he was   



                                                                             32  

not allowed to submit.                                                              



                                                                                                                                                                                                                                                                   

                                              Mollica also argues that the trial court failed to consider the underlying  



                                                                                                                                                                                                                                                                              

circumstances of Mollica's offense - the second-degree robbery in which Mollica  



                                                                                                                                                                                                                                                                                             

pulled out a fixed-blade knife after he was caught shoplifting. But the record shows that  



                                                                                                                                                                                                                                                                                

the facts of the underlying offense were discussed at the disposition hearing, and Mollica  



                                                                                                                                                                                                                                                                                 

andhis attorney had theopportunity to make whatever mitigating arguments they wanted  



                                                                                                                                                                                                                                                                     

regarding that offense. The record also indicates that the court did not simply reflexively  



            32         Contrast Harris, 689 S.E.2d 713 (remanding case for resentencing where defendant   



was not given a discharge hearing and the trial court also refused at the disposition hearing  

to consider defendant's evidence regarding the reasons for defendant's discharge from the  

drug court program).  



                                                                                                                                           - 25 -                                                                                                                                          2711
  


----------------------- Page 26-----------------------

impose the remaining suspended time but instead considered the                                                          Chaney  criteria and   



                                                                                                       33  

imposed only a portion of the remaining suspended time.                                                      



                                                                                                                                             

                        When we review an excessive sentence claim, we independently examine  



                                                                                                                             34  

                                                                                                                                             

                                                                                                                                    The  "clearly  

the  record  to  determine  whether  the  sentence  is  clearly  mistaken. 



                                                                                                                                                    

mistaken"  standard  contemplates  that  different  reasonable  judges,  confronted  with  



                                                                                                                                                          

identical  facts,  will  differ  on  what  constitutes  an  appropriate  sentence  and  that  a  



                                                                                                                                                        

reviewing court will not modify a sentence that falls within a permissible range of  



                                       35  

                                            

reasonable sentences. 



                                                                                                                                                        

                        We have independently reviewed the sentencing record in this case, and we  



                                                                                                   

conclude that the sentence imposed here is not clearly mistaken.  



                                   

            Conclusion  



                                                                                                                      

                        The judgment of the superior court is AFFIRMED.  



      33    See Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990) (explaining that, when   



imposing a defendant's suspended sentence, the sentencing court must consider "all available                           

sentencing evidence" in light of the                           Chaney criteria (citing State v. Chaney, 477 P.2d 441,  

443-44 (Alaska 1970))); see also DeMario v. State, 933 P.2d 558, 562 (Alaska App. 1997).  



      34    See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).  



      35    See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997).  



                                                                         - 26 -                                                                     2711
  

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