Opinion
Court of Appeals No. A-9889.
August 20, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-00-3298 Cr.
Linda Wilson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Calvin Jackson Jr. appeals the superior court's revocation of his probation and imposition of his remaining suspended imprisonment. We reject Jackson's claim that the evidence was not sufficient to support the decision to revoke his probation. We also conclude that the imposition of Jackson's suspended imprisonment did not result in an excessive sentence. Accordingly, we affirm the superior court.
Background facts and proceedings
On March 15, 2002, Jackson pleaded no contest to second-degree sexual abuse of a minor and third-degree attempted misconduct involving a controlled substance. Jackson was a first felony offender. These charges arose after Jackson had sex with a fourteen-year-old girl (his girlfriend's sister), often forcefully. He also forced the girl to perform oral sex on one of his friends for money and provided the girl with crack cocaine. As part of his plea agreement, Jackson agreed to a sentence of 6 years with 3 years suspended for the second-degree sexual abuse charge and 4 years with 3 years and 6 months suspended for the attempted third-degree controlled substances charge. He agreed that the sentences would run consecutively, for a composite term of 3 years and 6 months to serve and 6 years and 6 months suspended. Superior Court Judge Dan A. Hensley accepted the plea agreement and imposed sentence.
AS 11.41.436(a)(1).
AS 11.71.030(a)(2), AS 11.31.100.
In July 2003, the State filed the first petition to revoke Jackson's probation. Jackson was alleged to have violated his conditions of probation by using cocaine, consuming alcohol, spending the night away from his approved residence, and violating curfew. The petition was withdrawn prior to disposition because, in the intervening period, the parole board revoked Jackson's parole and Jackson was returned to jail.
Jackson was released on November 5, 2003, after serving the full 3 years and 6 months of unsuspended imprisonment. Eight days later, the State filed the second petition to revoke probation. The allegations from the July 2003 petition were renewed and the following new allegations were added — Jackson violated conditions of probation by using cocaine and marijuana, Jackson failed to report to his probation officer, and Jackson reported late to a scheduled meeting with his probation officer and then left without being seen. While the petition was pending, Jackson received 6 months of inpatient substance abuse treatment. On July 21, 2004, Judge Hensley found that Jackson had violated his probation conditions as alleged, but he gave Jackson Nygren credit for the 6 months he had spent in custodial treatment and did not impose any further time to serve.
See Nygren v. State, 658 P.2d 141, 146 (Alaska App. 1983).
Three weeks later, on August 6, 2004, the State filed its third petition to revoke Jackson's probation. The petition alleged that Jackson violated his conditions of probation by using cocaine and changing his residence without his probation officer's permission — Jackson walked out of the Salvation Army Adult Rehabilitation Program on August 5 and, at the time the petition was filed, his whereabouts were still unknown. The petition was amended on January 25, 2005 (when Jackson was back in custody) to add an additional allegation of cocaine use. On May 6, 2005, Judge Hensley found that Jackson had violated his probation and imposed 18 months of Jackson's suspended imprisonment.
Jackson was released on January 18, 2006. Just under three months later, the State filed its fourth petition to revoke probation. Superior Court Judge John Suddock found that Jackson had consumed alcohol and acted aggressively toward his girlfriend and others outside of a restaurant. Jackson had resisted arrest and refused to submit to a urinalysis. At this time, Jackson had 4 years and 6 months of suspended imprisonment remaining. Judge Suddock informed Jackson that he faced the imposition of all the suspended time unless he followed his conditions of probation. Jackson assured the court that he was ready to "man up" and that, although he had failed to comply with his conditions in the past, "this is it."
Judge Suddock noted that, because imposing 18 months was not enough to get Jackson's attention after his last disposition hearing, he should probably impose more than 18 months. But because he believed that Jackson's conduct — "getting drunk, loud, and pushy" — was "not very serious" and that substance abuse continued to be Jackson's problem, he imposed 6 months of suspended time with the requirement that Jackson receive a substance abuse evaluation and follow all recommendations. If inpatient treatment was recommended, Jackson would have to complete up to 6 months of treatment.
On August 11, 2006, Jackson was released. On September 6, 2006, the State filed its fifth petition to revoke probation. The State alleged that Jackson violated his conditions of probation by using cocaine and changing his residence without the knowledge or permission of his probation officer. The allegations were lodged because (1) Jackson's urinalysis tested positive for cocaine and (2) Jackson reported that his residence was the Brother Francis Shelter from August 18 forward, but his name did not show up on the shelter's register for the days of August 22, 25, 26, and August 31 through September 5. Following an evidentiary hearing, Judge Suddock found both violations by a preponderance of the evidence. He ordered Jackson to serve the balance of his suspended time — 4 years.
Discussion Sufficient evidence supported the court's adjudication of the petition
Jackson argues that Judge Suddock's conclusion that he violated his probation is not supported by sufficient evidence. When we review the sufficiency of the evidence supporting a trial court's ruling that a defendant has violated probation, we review the evidence in the light most favorable to upholding the ruling. We uphold a trial court's factual findings regarding a probation revocation unless the findings are clearly erroneous.
Holton v. State, 602 P.2d 1228, 1239 (Alaska 1979).
Powell v. State, 12 P.3d 1187, 1189 (Alaska App. 2000).
On September 6, 2006, Jackson reported to the probation office and was required to submit a urine specimen for testing. A dipstick test, read by Probation Officer JoAnn Wallace, indicated the sample was positive for cocaine. The specimen was sent to Norchem Drug Testing Laboratory for additional testing to confirm the results of the dipstick test. On September 22, 2006, Norchem faxed Wallace the results; the specimen was positive for cocaine.
In the superior court, Jackson argued that the urinalysis results were unreliable because there was no proof that the specimen was refrigerated as required before it was tested at the lab, the identification number on the seal for the specimen was obscured or missing, and the specimen may have been too dilute to assure a valid positive result.
Judge Suddock recognized that the State had the burden to prove the allegation in the petition. He discussed the evidence presented at the hearing and found that the testing was reliable and that the testing showed that it was more likely than not that Jackson violated probation by using cocaine. "So I find that by a preponderance of the evidence, that that was [Jackson's] urine sample and it twice tested positive for cocaine, and that the allegation is well taken." Jackson has not convinced us that Judge Suddock's findings are clearly erroneous. Those findings support the court's ruling that Jackson violated probation.
Jackson raises two additional arguments regarding this allegation. He contends that Judge Suddock improperly considered propensity evidence to support his ruling and improperly shifted the burden of proof to Jackson to disprove the allegation.
Jackson argues that when Judge Suddock made his decision as to whether the State had proved the probation violation of using cocaine, the judge improperly relied on Jackson's past instances of drug use as circumstantial evidence that the drug testing in the present case accurately identified Jackson as having used cocaine. When Judge Suddock issued his ruling, he made this reference to Jackson's prior drug use:
[Jackson] has at least . . . two precursor indicators of substance abuse. I note [this] because, if he came in [to this case] unburdened by that past, I suppose it would make it circumstantially more conceivable that there had been some sort of error [in the] . . . testing here.
Jackson argues that, in this passage, Judge Suddock was relying on Jackson's prior drug use in a way that is prohibited by Alaska Evidence Rule 404(b)(1). That is, Judge Suddock was relying on Jackson's prior instances of drug use as "propensity" evidence — evidence of past crimes that circumstantially made it more likely that Jackson had used drugs in the present case.
It may be that this evidence would have been excluded from a criminal trial under Evidence Rule 404(b)(1). But Rule 404(b)(1) does not apply to probation revocation proceedings. See Evidence Rule 101(c)(2). Thus, to the extent that Judge Suddock may have been relying on Jackson's past instances of drug use as circumstantial evidence of his drug use in the present case, that reliance was not prohibited by the evidence rules.
Jackson next argues that Judge Suddock shifted the burden of proof — that rather than requiring the State to affirmatively prove that Jackson had violated his probation, the judge required Jackson to affirmatively prove that he had not used cocaine.
During his oral ruling on the petition to revoke probation, Judge Suddock noted that when Jackson took the stand at the probation revocation hearing, Jackson merely pointed out various ways in which the drug testing technique might have been flawed, but he never affirmatively asserted that he had not used cocaine. On appeal, Jackson argues that Judge Suddock's comment shows that he improperly required Jackson to disprove the allegations in the State's petition, rather than requiring the State to prove these allegations.
Having reviewed the record, we conclude that, whatever Judge Suddock may have meant by his comment, it is clear that Judge Suddock understood that it was the State's burden to prove the allegations in its petition, and it is further clear that Judge Suddock held the State to that burden.
We note, in particular, that when Judge Suddock announced his ruling, he twice expressly acknowledged that it was the State's burden to prove its allegations "by a preponderance of the evidence" or "more likely than not." We further note Judge Suddock's conclusion that, given the circumstances presented here, it was "astronomically improbable" that Jackson's urine specimen had been mislabeled or mistaken for another, and that "the burden of improbabilities . . . crushes" Jackson's claim of a flawed test.
In sum, we are convinced that Judge Suddock properly allocated the burden of proof, and that he applied the correct standard of proof.
A condition of Jackson's probation required that he "[s]ecure the prior written permission of a probation officer of the Department of Corrections before changing employment or residence or leaving the region of residence to which assigned." On August 18, 2006, Officer Wallace arranged for Jackson to reside at the Brother Francis Shelter. After Jackson was arrested following the urinalysis, Officer Wallace telephoned the Brother Francis Shelter and was told that, according to the shelter's records, Jackson did not register on August 22, 25, 26, and from August 31 onward.
The State filed a petition to revoke probation alleging that "on or about August 22, 25, 26 and August 30 through September 5, 2006, Mr. Jackson changed his residence without the knowledge or permission of his supervising Probation Officer."
DeWayne Harris, the Brother Francis Shelter Program Director, testified that it is the shelter's regular practice to require each guest to check in every evening. On cross-examination, he conceded that it was possible for a guest to arrive at the shelter when no shift supervisor is "manning the door" and grab a mat or a bed without checking in.
Officer Wallace testified that she is familiar with the shelter's sign-in process because she has had hundreds of her assigned probationers stay at the shelter. She also testified that she did not order Jackson to register when he stayed at the shelter. But she testified that the normal process to get into the shelter is to line up at the front desk and tell the shift supervisor your name. The supervisor types the name into the system, and the guest is then permitted to enter. According to Wallace, shelter guests are "not allowed in the . . . facility without checking in," in part, because the shelter has a capacity limit.
[The shelter] ha[s] to keep numbers — they can't allow any more than a certain amount of people at the shelter. . . . [I]t's against the rules to sneak into the facility and . . . If you're found to be doing that, you'll be removed.
Wallace explained that the shelter has multiple employees working at any given time. In the "20 plus" times Wallace has been at the shelter in the evening hours, there has always been an employee at the front desk and one or two people in line at the desk waiting to be checked in.
Jackson testified that he stayed at the Brother Francis Shelter every night from August 18 until his arrest on September 6, but he claimed that he did not always check in at the front desk and, therefore, would not appear on the register. If no one was at the front desk when he arrived at the shelter, Jackson testified that he would walk in and take a bed without letting anyone know.
Judge Suddock found that, based on Jackson's history, and the improbability that he snuck into the shelter on eight or nine separate occasions without registering, the allegation was proven by a preponderance of the evidence. Our review of the record shows that Judge Suddock's findings in support of his conclusion that Jackson violated his probation by changing his residence without permission are not clearly erroneous.
Jackson argues that he was not on notice that it would be a violation of his probation not to sign in at the shelter every night. But the petition did not allege that Jackson failed to sign in at the shelter. The petition alleged that Jackson changed his residence from the shelter without permission, and that is what Judge Suddock found was proven.
Jackson's sentence is not excessive
Jackson argues that the imposition of the remaining 4 years of suspended time was clearly mistaken because he was a first felony offender, he had no convictions for "violent behavior," his probation violations were not "overly serious in nature," and they did not involve new criminal convictions.
In Toney v. State, we summarized the obligation of a court when sentencing after proof of a probation violation:
785 P.2d 902 (Alaska App. 1990).
The sentencing court can not automatically reinstate all previously suspended jail time when a probationer violates the conditions of probation. The court must instead consider all available sentencing evidence, including information concerning the defendant's background, the seriousness of the original offense, the nature of the defendant's conduct while on probation, and the seriousness of the violations that led to the revocation. As in all other sentencing proceedings, relevant information must be evaluated in light of the sentencing criteria articulated in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).
Id. at 903 (citations omitted).
The nature and circumstances of Jackson's original offense were severe. When Judge Hensley accepted the plea agreement, he found that "Mr. Jackson [took] advantage of somebody who was young and troubled, and fed her drugs and had sex with her. And that's why he's convicted of a Class B felony in this case. And I consider [this] conduct very severe." He also found that Jackson was "a sexual predator when it comes to minors." And he found that, because Jackson was refusing to take responsibility for his actions, Jackson was "dangerous" and would remain so until he received treatment. Judge Hensley stated that he did not think that Jackson had the "slightest idea" that he did anything wrong.
Judge Suddock found that exceptional circumstances justified the sentence of 10-years-to-serve sentence: Jackson's demonstrated inability to comply with probation and his poor prospects for rehabilitation in an unstructured environment. Both findings are supported by the record.
Judge Hensley identified cocaine addiction as Jackson's problem and it remained his problem at the final disposition. Jackson's convictions, his two parole violations, and his four adjudicated probation revocations all involved substance abuse. Jackson refused treatment while he was incarcerated. When he received treatment while on probation, he "walked out" of aftercare and disappeared for five months, ultimately testing positive for cocaine. Furthermore, he had not completed sex offender treatment as originally ordered.
Viewing the entire sentencing record, we conclude that Jackson's sentence is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentence unless the sentencing court's decision is clearly mistaken).
The judgment of the superior court is AFFIRMED.