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Smith v. State

Court of Appeals of Alaska

May 29, 2015

ERIC L. SMITH, Appellant,
v.
STATE OF ALASKA, Appellee

Page 1088

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Trial Court No. 4FA-10-2580 CR.

Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Sara E. Simpson, Assistant District Attorney, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]

OPINION

Page 1089

ALLARD, Judge.

Eric L. Smith pleaded guilty to twelve counts of possessing child pornography after an investigation by the Alaska State Troopers discovered pornographic images of children on his laptop computer. Smith was sentenced to a composite sentence of 46 months of active imprisonment, 10 years of supervised probation, and 72 years of suspended imprisonment.

On appeal, Smith argues that the 72 years of suspended time and the 10 years of probation are excessive. Smith also challenges a number of his probation conditions as unconstitutionally vague, overly broad, or lacking a sufficient nexus to his convictions.

For the reasons explained here, we conclude that the superior court's imposition of a 10-year probationary term was not clearly mistaken. We also affirm the court's imposition of probation conditions restricting Smith's consumption of and access to alcohol.

However, we vacate the 72 years of suspended jail time as clearly mistaken and direct the superior court on remand to impose a term of suspended time more appropriate to the individualized circumstances of

Page 1090

Smith's case. We also vacate a number of the challenged probation conditions. On remand, the court may choose to impose modified versions of some of these conditions consistent with the guidance provided here.

Facts and proceedings

In the course of an online investigation, the Alaska State Troopers discovered that Eric Smith, a twenty-one-year-old soldier stationed at Fort Wainwright, was downloading child pornography from the Internet. Trooper David Willson obtained a search warrant for Smith's computer and, during the execution of the search warrant, Smith admitted to possessing child pornography. A forensic examination of Smith's computer identified over thirty still and moving images of child pornography, as well as files containing jokes about pedophilia.

Smith was charged with twelve counts of possessing child pornography, and he entered guilty pleas to all twelve counts without a plea agreement.[1]

At Smith's sentencing hearing, Trooper Willson testified that Smith admitted that he " kept getting sucked into" downloading child pornography, beginning when he was fourteen years old. In his allocution, Smith said he felt compelled to look at child pornography because of experiences in his childhood and in Iraq -- he and a cousin had touched each other's genitals when they were about seven years old, he had looked at child pornography with a friend the summer between sixth and seventh grade, and he had seen an Iraqi man rape a young boy while on patrol during military deployment to Iraq. Smith said he viewed child pornography as a way to punish himself. He admitted that he drank alcohol whenever he looked at pornography.

Smith told the court that he accepted responsibility for what he had done, that he was ashamed, and that he wanted and needed treatment. Smith also told the court that he had already undergone assessment for sex-offender treatment and found the process helpful.

Smith submitted the sex-offender risk assessment, which was prepared by a licensed social worker, Moreen Fried, to the prosecution and the court. In the assessment, Fried indicated that Smith had actively participated in the assessment process and appeared amenable to sex-offender treatment and community supervision.

Smith's presentence report noted that Smith had no prior juvenile or adult criminal history. The report concluded, however, that Smith had " a high level of sexual deviancy" that put him at " high risk" of re-offending if he did not receive treatment.

As a first felony offender, Smith faced a presumptive range of 2 to 12 years on each of the twelve convictions.[2] The judge was also required to impose at least two years of suspended time on each conviction as well as a probationary term of at least 5 years.[3] Under former AS 12.55.127, the judge had the discretion to impose the individual sentences on each conviction concurrently, consecutively, or partially consecutively.[4]

At the sentencing hearing, Smith's attorney requested that the court impose the lowest sentence permissible within the applicable presumptive sentencing range -- 4 years with 2 years suspended on each count, to be run concurrently, for a total composite sentence of 2 years of active jail time to serve and an additional 2 years of suspended jail time -- i.e., 2 years of suspended jail time that could be imposed later if Smith violated any of ...


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