Opinion
Court of Appeals No. A-12611 No. 6774
02-27-2019
ISAAC JOHN HORMAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marcelle K. McDannel, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth F. Crail, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4FA-14-3560 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany Harbison, Judge. Appearances: Marcelle K. McDannel, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Elizabeth F. Crail, Assistant District Attorney, Fairbanks, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Pursuant to a plea agreement, Isaac John Horman was convicted of first-degree robbery. Horman was sentenced to 8 years with 3 years suspended (5 years to serve), with a 5-year term of probation.
Horman now appeals the imposition of several probation conditions and the superior court's refusal to delete a portion of the presentence report.
Underlying facts
On November 12, 2014, Steven Rudolph drove to a trailer in North Pole to pick up his son. While Rudolph was waiting in the driveway, a car pulled in and blocked Rudolph's vehicle. Two men exited the car. One of the men, Bill Kraus, came up to Rudolph's door, hit him in the head with a rifle, and demanded Rudolph's phone, wallet, and cigarettes. The other man, Isaac Horman, stood on the other side of Rudolph's vehicle and watched. Kraus and Horman then entered the trailer.
Once inside the trailer, Kraus demanded, at gunpoint, the trailer occupants' wallets, phones, and other possessions. Witness accounts differed regarding whether Horman was armed as well.
Kraus then ordered two women out of the residence; he initially put both of the women in the car, but then pulled one of the women back out. Kraus and Horman then drove away from the residence, with the remaining woman, Kelli Scott, inside their vehicle.
Kraus, Horman, and Scott arrived at a different North Pole residence. Kraus demanded that Scott contact her friends for ransom — either a gun or varying amounts of money (ranging from $500 to $1,200). Kraus also told Scott that he would sell her to the Hell's Angels if no ransom was paid. Kraus eventually made Scott leave with him, but Horman stayed behind. Kraus subsequently crashed his vehicle into a ditch, and Scott was able to contact a friend to pick her up.
Scott later identified Kraus and tentatively identified Horman in a photo lineup. Horman admitted that he had been with Kraus, but he stated that he (Horman) was only the driver, and he denied any involvement in kidnapping Scott.
A grand jury indicted Horman on one count of kidnapping, two counts of first-degree robbery, and one count of first-degree burglary.
AS 11.41.300(a)(1)(A) and/or (C) & AS 11.16.110.
AS 11.41.500(a)(1) & AS 11.16.110.
AS 11.46.300(a)(1) and/or (2)(A) & AS 11.16.110.
Pursuant to a plea agreement, Horman pleaded guilty to one count of first-degree robbery (of Steven Rudolph), and the State dismissed the remaining charges. Because Horman was a first felony offender, he faced a presumptive sentencing range of 5 to 8 years. The parties agreed to a term of imprisonment of 8 years with 3 years suspended, but the conditions of probation were open to the court.
Former AS 12.55.125(c)(1) (pre-July 2016 version).
The State acknowledged that only one person of several witnesses said that Horman had a gun, and thus, the State did not attempt to establish that Horman was subject to the higher 7- to 11-year sentencing range applicable to a person who personally possessed a firearm. See former AS 12.55.125(c)(2)(A) (pre-July 2016 version).
The presentence report author recommended several conditions regarding Horman's use and possession of alcohol and illegal drugs. In particular, the author recommended that the court prohibit Horman from consuming or possessing any alcohol or illegal drugs, entering an establishment whose primary business is the sale of alcohol, or being present where drugs are sold or consumed (Special Condition Nos. 7 and 8); require Horman to complete a substance abuse assessment and treatment as recommended (Special Condition Nos. 2 and 3); and subject Horman to monitoring and warrantless searches for the presence of drugs and alcohol (Special Condition Nos. 10 and 11).
The superior court imposed all of the requested alcohol- and drug-related conditions, and added cannabis to the list of prohibited substances at the State's request.
The drug conditions
Special Condition No. 8 precludes Horman from knowingly consuming or possessing illegal drugs, including cannabis; possessing drug paraphernalia; being present in a place where these drugs are sold or consumed; and having these drugs in his residence. In the superior court, Horman raised two objections to this condition: first, he opposed the State's request to include cannabis among the list of prohibited drugs, and second, he asked the court to insert the word "knowingly" into the language of the condition, so that he would not be in violation for "inadvertent" conduct. Over Horman's objection, the court included cannabis in the list of prohibited drugs. But the court granted Horman's request to add the word "knowingly" to the condition.
On appeal, Horman now challenges Special Condition No. 8 in its entirety. But by failing to object to the condition as a whole in the trial court, Horman has not preserved this issue for appeal, and he must therefore establish plain error. We have reviewed the record, and for the reasons that follow, we find no plain error.
State v. Ranstead, 421 P.3d 15, 22-23 (Alaska 2018) ("Under the plain error test, an appellate court may grant relief from an improper probation condition if the sentencing court erred in imposing it and if this error '(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.'" (quoting Adams v. State, 261 P.3d 758, 764 (Alaska 2011)).
In Horman's sentencing memorandum, Horman's attorney noted that the trailer where the robbery occurred was a "drug flop house" and that law enforcement observed multiple articles of drug paraphernalia within the trailer during the investigation. His attorney asked that the trailer be referred to in the presentence report as a "drug house" rather than as a "residential trailer." Although the court declined to modify the description, the court noted the residence's possible connection to drug activity and found that the crimes occurred in an area known for drug use.
On appeal, Horman notes that he has no drug-related criminal history and argues that there was no established connection between illegal drugs and his conduct in this case. He contends that the only connection between his conduct and drugs is that he went to a house where other people consumed drugs. In response, the State argues that the circumstances in this case — namely that the residence was a drug flop house and that the ransom money requested was low for a kidnapping — point to a likelihood that the kidnapping and robbery were connected to drugs.
Because Horman did not object to Special Condition No. 8, the court was not called upon to resolve these competing arguments about whether the crime was truly drug-related. In the absence of a finding on this issue, we cannot say that the court plainly erred in imposing Special Condition No. 8. Based on our review of the record, a court could reasonably discount Horman's assertion that he went to the drug house to retrieve property that belonged to an incarcerated friend, and instead credit the State's suggestion that the crime was drug-related in light of the concession by Horman's attorney that the trailer was a "drug house."
We therefore also uphold the portion of Special Condition No. 10 requiring Horman to submit to a chemical test of his breath, blood, urine, or saliva at the request of a probation officer, or at the request of a law enforcement officer or treatment provider acting under the direction of a probation officer, for the presence of prohibited drugs.
But we acknowledge that Horman has no past drug-related convictions and that the connection between his conduct in this case and illegal drugs was tenuous at best. Given that Horman preserved his objection to the inclusion of cannabis among the list of prohibited substances, and the record does not sufficiently establish that such a restriction is reasonably related to Horman's rehabilitation or the protection of the public, we remand that portion of Special Condition No. 8 for reconsideration.
The alcohol conditions
Prior to sentencing, Horman objected to all of the alcohol-related conditions. Over Horman's objection, the trial court imposed these conditions. On appeal, Horman renews his challenges to these conditions, arguing that there is no evidence that he has an ongoing problem with alcohol abuse or that alcohol use was a factor in this case. Horman argues that the conditions are not sufficiently related to his rehabilitation.
Having reviewed the record, we conclude that it is necessary to remand for further findings regarding the condition that completely bars Horman from possessing or consuming any alcohol (Special Condition No. 7). In imposing the condition barring Horman from consuming and possessing alcohol, the superior court ruled that this prohibition was "a bright-line rule that will be much more helpful than trying to identify overconsumption." But the presentence report author found that Horman was neither under the influence, nor in search, of intoxicating substances when he committed the robbery, and there is no indication that alcohol had any other connection to Horman's conduct in this case. We therefore conclude that the trial court's justification for imposing the condition is insufficient.
We recognize that Horman has two prior convictions for driving while intoxicated. These convictions readily support a condition prohibiting Horman from drinking to excess. But the most recent of these convictions occurred in 2002, fourteen years prior to sentencing in this case (twelve years prior to the events in this case). Although Horman has had two convictions for driving with a revoked license and a misdemeanor escape conviction since that time, there is no indication in the record that these offenses involved alcohol, that Horman has had any other alcohol-related misconduct since 2002, or that he has a continuing substance abuse problem. (Indeed, it is not clear from the record whether Horman was completely barred from consuming or possessing alcohol even after his prior DUI convictions.)
See Hall v. State, 2016 WL 1756217, *2 (Alaska App. Apr. 27, 2016) (unpublished) (vacating condition precluding the defendant from consuming alcoholic beverages and the related search condition, despite the defendant's recent DUI conviction, where the court found that the defendant was only starting to signal a "potential" substance abuse problem).
We have upheld similar alcohol-related probation conditions in cases where the defendant's criminal history, the conduct in the current offense, the defendant's recent behavior, or some combination of the three raised a concern that the defendant had a continuing substance abuse problem. But here, there is little evidence in the record that Horman has a substance abuse issue necessitating a complete bar on, and possible jail time for, consuming any amount of alcohol.
See Lambert v. State, 172 P.3d 838, 841-42 (Alaska App. 2007) (upholding conditions barring alcohol use or possession because of criminal history establishing serious and unresolved problems with substance abuse, and the connection between alcohol and the current offense); Allain v. State, 810 P.2d 1019, 1022 (Alaska App. 1991) (upholding condition requiring defendant to abstain from alcohol consumption because of defendant's emotional and intellectual immaturity and self-reported abuse of alcohol); Phillips v. State, 211 P.3d 1148, 1153 (Alaska App. 2009) (upholding condition requiring defendant to submit to alcohol testing because of defendant's alcohol-related criminal history and evidence of substance abuse related to current offense).
We note that the trial court also imposed conditions requiring Horman to complete a substance abuse evaluation and participate in recommended treatment (Special Condition Nos. 2 and 3). Based on Horman's two prior driving while intoxicated convictions, and the reasonable inferences in the record that the conduct in this case was drug related, we conclude that there was a sufficient basis for the superior court to require Horman to undergo screening and evaluation for alcohol abuse. The results of that assessment may better inform the trial court whether a no-alcohol condition is warranted.
Accordingly, we remand Special Condition No. 7 to the superior court for reconsideration.
However, because we conclude that the record establishes that a condition precluding Horman from drinking to excess is reasonably related to Horman's rehabilitation and the protection of the public, we uphold chemical testing under Special Condition No. 10 to the extent it requires Horman to submit to a chemical test to determine the level of alcohol he has consumed.
The search condition
Special Condition No. 11 requires Horman to submit (at the request of his probation officer) to a warrantless search — of his person, personal property, residence, and any vehicle in which he is found — for the presence of alcohol, prohibited drugs, drug paraphernalia, stolen property, or weapons. Horman challenges those portions of this condition that authorize warrantless searches for the presence of alcohol, prohibited drugs, and drug paraphernalia.
A probation condition authorizing a warrantless search implicates a probationer's right to be free from unreasonable searches and is therefore subject to special scrutiny. In authorizing searches for alcohol and drugs, the trial court found only that there was a "sufficient nexus" for the condition. We cannot determine whether the court applied the necessary heightened scrutiny to this condition, given its restriction of Horman's Fourth Amendment rights. Accordingly, we remand the alcohol- and drug-related search provisions of Special Condition No. 11 for application of special scrutiny.
See Roman v. State, 570 P.2d 1235, 1241 (Alaska 1977) (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975)); see also Sprague v. State, 590 P.2d 410, 417-18 (Alaska 1979); Marunich v. State, 151 P.3d 510, 517 (Alaska App. 2006).
The court should strike the challenged potions of the presentence report
As part of the plea agreement, Horman stipulated to an aggravating factor — that his offense was among the most serious within the definition of the offense. Horman also conceded a second aggravating factor proposed by the State — that he had at least five prior class A misdemeanor convictions.
AS 12.55.155(c)(10).
AS 12.55.155(c)(31).
In the evaluation section of the presentence report, the probation officer who authored the presentence report suggested that the facts of Horman's case supported two additional aggravating factors — that Horman's conduct posed a risk of imminent physical injury to three or more people (AS 12.55.155(c)(6)) and that Horman's history included repeated instances of assaultive behavior (AS 12.55.155(c)(8)). The probation officer did not specifically identify the facts supporting these proposed aggravators or provide any explanation for why the aggravators were justified.
Horman challenged these aggravators under Blakely v. Washington, and on factual grounds. Horman requested that the court delete the references in the presentence report to these aggravators, or in the alternative, add a note stating that the court did not find the aggravators.
Blakely v. Washington, 542 U.S. 296 (2004).
The superior court ruled that the aggravators were "Blakely" aggravators that necessitated a jury finding. (Horman had no prior criminal convictions for assaultive conduct for purposes of the (c)(8) aggravator.) The court therefore did not find the aggravators. However, the court declined to strike the references to the proposed aggravators, finding that it was the author's "subjective view of how to apply the law to the facts."
We note that Blakely did not preclude the court from finding these aggravators. First, because Horman's agreed-upon sentence fell within the applicable presumptive range, it was not necessary for the State to establish any aggravating factors. Second, even if an aggravating factor was necessary, the court had already found at least one aggravating factor based on Horman's stipulation, so additional aggravating factors did not need to be submitted to a jury. See AS 12.55.155(h); Cleveland v. State, 143 P.3d 977, 979-80 (Alaska App. 2006).
We do not view a proposed aggravator as simply an expression of the presentence report author's opinion. The existence or non-existence of an aggravating factor presents a mixed question of fact and law. Prior to the hearing, Horman contested both the legal basis and factual underpinnings for the aggravators proposed in the presentence report. And at the outset of the sentencing hearing, the court rejected the aggravators as a matter of law — giving Horman little reason to then continue to challenge the facts underlying these aggravators.
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Since the court did not make findings regarding the disputed assertions and declined to find the existence of these aggravators, the court should have struck them from the presentence report. Alaska Criminal Rule 32.1(f)(5) requires a court to redact material that the judge finds to be unproven or irrelevant:
The court shall enter findings regarding any disputed assertion in the presentence report. Any assertion that has not been proved shall be deleted from the report; any assertion that has been proved only in part shall be modified in the report. Alternatively, if the court determines that the disputed assertion is not relevant to its sentencing decision so that resolution of the dispute is not warranted, the court shall
delete the assertion from the report without making any finding.This rule makes no distinction between factual assertions contained in the "evaluation" section of a presentence report and factual assertions contained in other portions of the report. The trial court is required to follow the directives of Criminal Rule 32.1, even when disputed factual assertions are offered as the author's "opinion."
See Smith v. State, 369 P.3d 555, 558 (Alaska App. 2016); see also Cragg v. State, 957 P.2d 1365, 1367-68 (Alaska App. 1998) (rejecting State's argument that probation officer's assertions in presentence report — that Cragg's account was not believable and that his failure to report to probation may have been an attempt to avoid detection for consumption and possession of controlled substances — constituted the officer's personal opinion of the facts, immune to challenge). --------
The State argues that other information in the presentence report — namely, Horman's two prior cases of disorderly conduct, one of which was dismissed and one of which was not prosecuted — provided a sufficient factual basis for the report author's opinion that Horman had a history of assaultive behavior for purposes of the (c)(8) aggravator. The State notes that while Horman asked the court to amend the factual descriptions of the incidents of disorderly conduct, he did not object to these incidents being included in the presentence report.
But as we noted earlier, the court determined at the outset of the sentencing hearing that it would not find the disputed aggravating factors. This eliminated the need for Horman to challenge the conclusion that the assaultive conduct alleged in these two instances necessarily established the aggravator. And, as we noted earlier, the court did not make any findings regarding the aggravating factors.
We therefore direct the superior court to strike the references to aggravators (c)(6) and (c)(8) contained in the evaluation section of the presentence report. After the court has made the necessary deletions, the court shall label the corrected copy as the "approved version" of the presentence report and distribute this copy to the parties and to the Department of Corrections.
Conclusion
We VACATE Special Condition No. 7 and the alcohol- and drug-related search provisions of Special Condition No. 11, as well as the portion of Special Condition No. 8 precluding cannabis use or possession, and REMAND Horman's case to the superior court for reconsideration of these conditions. Additionally, we direct the superior court to strike the references to the AS 12.55.155(c)(6) and (c)(8) aggravators from the evaluation section of the presentence report and redistribute a corrected copy of the presentence report.
With these exceptions, we AFFIRM the superior court's judgment.