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Boles v. State

Court of Appeals of Alaska

June 12, 2009

Michael BOLES, Appellant,
v.
STATE of Alaska, Appellee.

As Amended on Rehearing July 10, 2009.

Page 455

Louis James Menendez, Juneau, 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 BOLGER, Judges.

MANNHEIMER, Judge.

Michael Boles pleaded guilty to two counts of attempted second-degree sexual abuse of a minor for engaging in sexual contact with two victims, each under the age of thirteen. As one of Boles's conditions of probation, the superior court ordered him to submit to warrantless searches for firearms. In addition, the superior court concluded that Boles would have to register as a sex offender for the rest of his life. Boles now challenges these two decisions.

The challenged condition of probation

Boles claims that, because his crimes did not involve a weapon of any type, it was improper for the superior court to require him to submit to warrantless searches for firearms. The State concedes that the superior court committed error, but this Court has an independent duty to evaluate whether the State's concession of error is well-founded.[1]

Under Alaska law, it is improper for a sentencing court to impose a condition of probation that is not " reasonably related to the rehabilitation of the offender and the protection of the public" . Miyasato v. State, 892 P.2d 200, 201 (Alaska App.1995) (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977)).

This Court recently applied this rule of law in Dayton v. State, 120 P.3d 1073 (Alaska App.2005). In Dayton, the defendant was indicted for first-and second-degree sexual assault, but negotiated a plea bargain with the State allowing him to plead no contest to third-degree assault. Id. at 1076. As a condition of probation, the superior court required the defendant to submit to warrantless searches for weapons. Id. at 1084. We reversed this condition of probation because " [t]he record contain[ed] no indication that Dayton has ever used or possessed weapons in violation of the law, or that he has used or carried weapons during the commission of a crime" . Id. at 1085.

In the present case, Boles was convicted of two counts of attempted sexual abuse of a minor, and neither offense involved a weapon of any type. Thus, Boles's case appears to be analogous to Dayton. We conclude that the State's concession of error on this point is well-founded, and we therefore vacate the challenged condition of probation.

The issue of how long Boles must register as a sex offender

Boles's remaining claim is that the superior court was mistaken when it ruled that Boles would have to register as a sex offender for life. Boles contends that under the pertinent statute, AS 12.63.020, he need only register for 15 years.

AS 12.63.020(a)(1)(B) declares that a defendant convicted of two or more sex offenses must register for life. Boles pleaded guilty to two counts of attempted second-degree sexual abuse of a minor, each ...


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