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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHAWN D. SUMMERALL,
Court of Appeals No. A-14055
Appellant, Trial Court No. 3KO-10-00279 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2788 - August 16, 2024
Appeal from the Superior Court, First Judicial District, Juneau,
Daniel Schally, Judge.
Appearances: Renee McFarland, Assistant Public Defender,
and Terrence Haas, Public Defender, Anchorage, for the
Appellant. Ann B. Black, Assistant Attorney General, Office
of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge HARBISON.
In 2010, Chawn D. Summerall was convicted, following a jury trial, of
1
first-degree assault for beating up a person who later died from his injuries. The
1 Former AS 11.41.200(a) (pre-October 2019 version).
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evidence indicated that Summerall was intoxicated when the assault occurred. The
superior court sentenced Summerall to 20 years with 9 years suspended (11 years to
serve) and 5 years of probation and imposed special conditions of probation to address
Summerall's substance use. Under these original conditions, Summerall was required
to obtain a substance abuse evaluation and spend up to 6 months in a residential
substance abuse treatment program if recommended by the evaluation.
Between 2020 and 2022, the superior court revoked Summerall's
probation five separate times for conduct relating to substance abuse. As part of the
disposition of the State's fifth petition to revoke probation, the court added a condition
requiring him to obtain a new substance abuse assessment and to follow its
recommendations, including "up to 1 year of in-patient treatment." In this appeal,
Summerall argues that this condition violated double jeopardy because it increased his
punishment by requiring him to complete up to 1 year in residential treatment rather
than the six-month period that his original judgment required.
The State raises two arguments in response. First, the State argues that this
Court should decline to hear Summerall's claim because Summerall's attorney
requested the very probation condition he now appeals. Second, the State argues that
Summerall's double jeopardy claim fails on the merits because the court did not
increase his overall punishment; rather, it specified the manner in which Summerall
had to serve a portion of his outstanding suspended sentence.
For the reasons explained, we need not reach the State's waiver argument
because we agree that Summerall's double jeopardy claim fails on the merits. The
superior court did not increase Summerall's punishment in a manner that implicates
double jeopardy. Rather, it exercised its discretion to modify his probation by
specifying the manner in which Summerall may have to spend 1 year of his outstanding
suspended sentence.
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Background facts and proceedings
In 2008, Summerall and his co-defendant assaulted Darrell Cavaness, who
later died from the injuries he sustained. Following a jury trial, Summerall was
2
convicted of first-degree assault but acquitted of second-degree murder. The evidence
3
indicated that Summerall was intoxicated when the assault occurred.
In 2010, the superior court sentenced Summerall to 20 years with 9 years
suspended (11 years to serve) and a 5-year term of probation. Summerall was thirty-
one years old at the time of sentencing and had previously been convicted of nine
misdemeanors, many of which involved alcohol or controlled substances. The court
accordingly imposed several special probation conditions to address Summerall's
substance use.
Special Condition No. 2 ordered that Summerall obtain a substance abuse
evaluation within 60 days from his release from prison and "make the results of the
evaluation available to the Probation/Parole Officer." Special Condition
No. 3 authorized his probation officer to order Summerall to spend up to 6 months in a
"residential treatment program":
[Special Condition No. 3:] The defendant shall actively
participate in and successfully complete an approved
substance abuse program if recommended by the evaluation,
which may include a residential treatment program of up to
six (6) months, at the direction of the Probation/Parole
Officer. The defendant shall not discontinue treatment
without the prior written approval of his Probation/Parole
Officer.
2 AS 11.41.200(a) and AS 11.41.110(a), respectively.
3 Several witnesses testified that Summerall was "highly intoxicated" before and after
the incident.
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After serving the active portion of his sentence, Summerall was released
4
from incarceration and placed on concurrent parole and probation supervision.
Between May 2020 and April 2022, the superior court revoked Summerall's probation
five separate times. The fourth and fifth petitions are relevant to this appeal.
In December 2021, the State filed a fourth petition to revoke probation
alleging that Summerall consumed drugs and that his urinalysis test was positive for
methamphetamine and marijuana. Summerall admitted this conduct. Following a
contested disposition, the court revoked Summerall's probation, requiring him to serve
6 months of his suspended time and extending his probation by 1 year. The court also
added a condition authorizing Summerall's probation officer to require Summerall to
5
spend 6 months at a community residential center (CRC) - i.e., a halfway house.
In April 2022, the State filed a fifth petition alleging that Summerall failed
to report to his probation officer and failed to submit to drug and alcohol testing as
6
directed. Summerall admitted to these allegations, and his case proceeded to a
contested disposition hearing.
At this hearing, the State expressed concern about Summerall's recent
substance use given his history of assaulting people while intoxicated (including the
fatal assault in this case). The State noted that, after the fourth petition was adjudicated,
the court added a condition that Summerall reside in a CRC, but that Summerall "didn't
follow through."
4 Summerall was initially released and placed on parole and probation supervision in
December 2016. Between December 2016 and December 2017, Summerall violated his
parole six separate times by consuming either controlled substances or alcohol. On
December 8, 2017, the Parole Board revoked his parole and required him to serve all
remaining good time. Summerall was released on probation in March 2020.
5 See Summerall v. State, __ P.3d __, 2024 WL 3309436 (Alaska App. July 5, 2024)
(affirming the disposition of Summerall's fourth petition to revoke probation).
6 The petition alleged that Summerall violated General Condition No. 5 and Special
Condition No. 5.
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Probation Officer Ian Petershoare next addressed the court. Petershoare
explained that despite Summerall's poor history on supervised release, Petershoare
believed that Summerall could succeed this time if he received treatment for substance
use. Petershoare also corrected the State's remark that Summerall "didn't follow
through" with residing in a CRC, noting that because the CRC did not previously have
bed space for him, Summerall was "release[d] . . . to the street." Petershoare requested
that the court again order Summerall to reside in a CRC, and assured the court that the
CRC would have bed space for Summerall.
The defense attorney agreed with Petershoare that release to a CRC was
advisable; accordingly, the attorney requested a time-served sentence and asked the
court to "structure a judgment that would allow a bed-to-bed transfer [from
incarceration directly into a CRC]." Additionally, the defense attorney requested that
the court order Summerall to perform community service and that Summerall receive
"an updated drug assessment in order to get into inpatient treatment if that's what's
recommended."
The superior court revoked Summerall's probation, imposed 14 months of
suspended time, and returned Summerall to probation under modified conditions of
probation. The conditions included:
Defendant to get a new substance use assessment. Defendant
to follow all treatment recommendations including up to
1 year of in-patient treatment, and sign all necessary ROIs.
Defendant to spend up to 6 months at CRC.
In its sentencing remarks, the court explained that it had been inclined to "pull the plug"
on Summerall's probation altogether, but that because various stakeholders believed
that returning Summerall to probation would be beneficial, it would not "stand in the
way of that."
This appeal followed.
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Why the superior court did not violate the prohibition against double
jeopardy when it modified Summerall's probation
Summerall argues that the superior court's disposition order resolving the
fifth petition to revoke his probation violated the constitutional prohibition against
double jeopardy. According to Summerall, the court impermissibly increased his
punishment beyond what was ordered by the original judgment when it added the
condition that he obtain a new substance abuse evaluation and "follow all treatment
recommendations including up to 1 year of in-patient treatment." As support for his
position, Summerall relies on this Court's decision in Dodge v. Anchorage , holding that
"[c]ustodial confinement in a residential alcohol treatment program is the functional
7
equivalent of jail time and therefore constitutes a sentence of imprisonment." He
asserts that the new condition requiring up to 1 year of in-patient treatment imposes a
more severe punishment than the original sentence (but he concedes that, if he has not
yet participated in residential treatment, he may still be required to participate in
residential treatment of up to 6 months as ordered in his original judgment) .
The State disputes Summerall's assertion that the new probation condition
increased his overall punishment. The State notes that Summerall had over 7 years of
outstanding suspended time when the condition authorizing "up to 1 year of in-patient
treatment" was ordered. The State also notes that when a court modifies probation
conditions to the defendant's detriment, the modification does not necessarily violate
double jeopardy. The State posits that the contested probation condition in this case did
not "increase" Summerall's sentence, but instead merely imposed up to 1 year of his
outstanding suspended time and required Summerall to serve that time in an inpatient
8
treatment program.
7 Dodge v. Anchorage , 877 P.2d 270, 272 (Alaska App. 1994).
8 The State also argues that Summerall may not raise his double jeopardy claim on
appeal under principles of waiver and invited error. The State identifies that before the
court entered its disposition order on Summerall's fifth petition to revoke probation, his
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Courts have broad discretion to place defendants on probation and to order
9
that they abide by conditions of probation, as long as the conditions are "reasonably
related to at least one of the[] constitutional principles" of criminal administration set
out in Article I, Section 12 of the Alaska Constitution.10 Courts also have broad
discretion to "revoke or modify any condition of probation, change the period of
probation, or terminate probation and discharge the defendant from probation." 11
However, there are circumstances under which the court's discretion over probation is
circumscribed by the double jeopardy clause.
The Alaska Constitution provides that "[n]o person shall be put in
jeopardy twice for the same offense." 12 The double jeopardy clause protects defendants
from receiving multiple punishments for the same offense. As the Alaska Supreme
Court has explained, "once a sentence has been meaningfully imposed, it may not, at a
later time, be increased."13 Thus, courts are forbidden from "imposing a new sentence
defense attorney requested "an updated drug assessment in order to get [Summerall] into
inpatient treatment if that's what's recommended." In Johnson v. State , the Alaska
Supreme Court explained that, while double jeopardy claims ordinarily may be raised for
the first time on appeal, a defendant may waive such a claim if they knowingly and
willingly relinquish their right to double jeopardy protection. Johnson v. State , 328 P.3d
77, 82-85, 82 n.20 (Alaska 2014). Under this principle, we question whether Summerall
waived his double jeopardy claim. However, we decline to reach this procedural issue
because we agree that Summerall's double jeopardy claim fails on the merits.
9 AS 12.55.090-.100.
10 State v. Ranstead, 421 P.3d 15, 19-20 (Alaska 2018).
11 AS 12.55.090(b); Reyes v. State, 978 P.2d 635, 639 (Alaska App. 1999) (explaining
that "the legislature intended probation to be modifiable").
12 Alaska Const. art. I, § 9. See also U.S. Const. amend. V (" [N]or shall any person be
subject for the same offence to be twice put in jeopardy of life or limb.").
13 Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971); see also Reyes, 978 P.2d at
637-38.
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more severe than the one the defendant originally received." 14 In other words, when a
trial court exercises its discretion to modify a defendant's probation, it may not impose
a condition that causes the defendant's sentence to be more severe than the sentence the
court originally imposed without violating principles of double jeopardy.
We have applied this principle in previous cases, holding that a
modification to a defendant's probation violates double jeopardy if the modified
condition increases a defendant's overall jail time,15 increases the defendant's
restitution or fine,16 or if the modified condition is not authorized by Alaska's
sentencing statutes.17
For example, in Dodge v. Anchorage , we held that the trial court violated
double jeopardy by imposing the challenged probation condition.18 Dodge had been
convicted of driving while intoxicated and sentenced to a term of 1 year flat.19 The
district court later amended Dodge's judgment, imposing a probation condition
requiring him to spend up to 90 days in a residential alcohol treatment program (in
addition to serving the 1 year in prison).20 Dodge appealed, arguing that the probation
condition violated the constitutional prohibition against double jeopardy by increasing
his sentence.21 This Court agreed, holding that because "confinement in a residential
14 Reyes, 978 P.2d at 637-38; see also Sonnier, 483 P.2d at 1005.
15 See Dodge v. Anchorage , 877 P.2d 270, 272 (Alaska App. 1994).
16 See Reyes, 978 P.2d at 641.
17 Galindo v. State, 481 P.3d 686, 690 (Alaska App. 2021).
18 Dodge, 877 P.2d at 272.
19 Id. at 271.
20 Id. at 271-72.
21 Id. at 272.
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alcohol treatment program is the functional equivalent of jail time," the trial court
unconstitutionally increased Dodge's total jail time (or equivalent) from 1 year, to
1 year and 90 days.22
In the present matter, Summerall argues that the trial court violated double
jeopardy by imposing an additional probation condition requiring him to spend up to
1 year in an inpatient treatment program. Citing Dodge , Summerall argues that because
inpatient treatment is akin to jail time, the court violated the double jeopardy clause
when it added this requirement because it exceeded the 6 months of residential
treatment originally authorized.
Summerall is mistaken. As the State points out, when Summerall was
sentenced on his fifth petition to revoke probation, he had over 7 years of suspended
time remaining on his sentence. Accordingly, when the court revoked his probation, it
could have ordered Summerall to spend all of his remaining suspended time in prison
without violating double jeopardy. Instead, the court sentenced Summerall to 14 months
to serve in the custody of the Department of Corrections, an additional 6 months to
serve in a CRC, i.e. a halfway house, and up to 1 additional year of in-patient treatment.
In other words, the court ordered Summerall confined to jail or the functional equivalent
of jail for up to 2 years and 8 months - i.e., just over one-third of the 7 years of
suspended time remaining on his sentence.
This disposition did not violate Summerall's double jeopardy rights. It is
established law that courts may modify probation or impose suspended time in a manner
that is detrimental to the defendant without violating the double jeopardy clause as long
as the defendant's sentence is not increased.23 Unlike in Dodge, where the court's action
increased the original sentence from 1 year to 1 year and 90 days, in Summerall's case,
22 Id.
23 See Reyes v. State, 978 P.2d 635, 639-40 (Alaska App. 1999).
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the total jail time imposed (up to 2 years and 8 months) was less than the time remaining
on Summerall's original sentence (over 7 years).24
For these reasons, we reject Summerall's double jeopardy claim.
Conclusion
We AFFIRM the judgment of the superior court.
24 Dodge, 877 P.2d at 272.
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