from the Superior Court, Third Judicial District, Trial Court
No. 3PA-12-581 CR Palmer, Kari C. Kristiansen, Judge.
Robinson, Attorney at Law, under contract with the Office of
Public Advocacy, Anchorage, for the Appellant.
Brittany L. Dunlop, Assistant District Attorney, Palmer, and
Craig W. Richards, Attorney General, Juneau, for the
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
Dennis Johnson pleaded guilty to manslaughter. Pursuant to an
agreement with the State, Johnson agreed to his term of
imprisonment, but his probation conditions were left open to
the superior court.
appeal, Johnson challenges several of the conditions imposed
by the court, including conditions that regulate
Johnson's contact with his wife and son. For the reasons
explained in this opinion, we reverse the condition
regulating Johnson's contact with his wife, and we vacate
and remand for reconsideration the condition regulating
Johnson's contact with his son. We affirm the alcohol-
and drug-related conditions.
March 7, 2012, Andrew Johnson and his wife, Holly Johnson,
got into an argument. Holly left their home and went to the
home of her friend, Jessica Smith.
that night, Johnson asked Holly's brother, David Carlton,
to give him a ride to Smith's home. According to Johnson,
he wanted to retrieve the truck Holly had driven to
Smith's residence. He was also concerned that Holly might
use drugs with Smith, and he wanted Holly to return home.
drove Johnson and Johnson's son, Spencer Johnson, to
Smith's home. At the time, Spencer was nineteen years old
and had moved to Alaska two months earlier to live with
Johnson and Holly. Johnson said he took Spencer with him
because he (Johnson) did not have a driver's license and
he needed someone to drive his truck from Smith's
arriving at Smith's home, Johnson told Carlton to stay in
the car, and he told Spencer to start the truck belonging to
Johnson and Holly. Johnson went alone to the front door of
the house. Smith's fiance, Michael Plummer, came to the
door, and Johnson and Plummer began shoving each other.
Johnson told Plummer to tell him where Holly was, and Plummer
questioned Johnson about who he was and what he was doing
the altercation, Spencer ran to the house to intervene, and
he stabbed Plummer in the throat with a knife. Smith
retrieved a gun and shot at Johnson, Spencer, and Carlton
(who had also entered the home), hitting Johnson. The three
died at the scene.
State secured an indictment against Johnson for alternative
counts of second-degree murder, manslaughter, and criminally
negligent homicide, and two counts of first-degree
burglary. The State also charged Spencer Johnson
with first-degree murder and related charges. Carlton was not
to a plea bargain with the State, Johnson pleaded guilty to
manslaughter. The plea bargain called for Johnson to receive
a sentence of 15 years with 5 years suspended (10 years to
serve) and 5 years of probation. The State dismissed the
remaining charges against Johnson. The agreement left
Johnson's probation conditions open to the sentencing
to sentencing, the author of the presentence report proposed
a series of probation conditions. These conditions included
(1) a condition that precluded Johnson from knowingly
associating with another felon absent permission by a
probation officer, and (2) a condition that absolutely barred
Johnson from having contact with his son and co-defendant,
Spencer Johnson, who was still awaiting trial at that time.
attorney objected to several of these conditions. First,
Johnson's attorney challenged the condition that
restricted Johnson from knowingly associating with another
felon, noting that the condition would restrict Johnson from
having contact with his wife, Holly (who had a felony
conviction), and potentially his son, Spencer (who might soon
become a felon). He also challenged the condition absolutely
barring Johnson from having contact with Spencer. Second,
Johnson's attorney challenged the conditions prohibiting
Johnson's use and possession of alcohol and illegal
controlled substances, as well as related conditions
precluding Johnson from residing in a residence where alcohol
is present or entering an establishment where alcohol is the
main item for sale, and requiring Johnson to submit to random
testing, warrantless searches for drugs and alcohol, and a
substance abuse assessment.
sentencing, the prosecutor agreed that Holly had a felony
conviction and that the proposed condition generally
precluding Johnson from having contact with felons applied to
contact between them. But rather than propose an exception
that would simply permit Johnson to have contact with Holly,
the State proposed that the couple could have contact so long
as they were both "in compliance with their respective
probation officers." Superior Court Judge Kari C.
Kristiansen adopted a version of the State's proposal,
permitting contact between Johnson and Holly so long as
"both parties are compliant with parole/probation."
prosecutor opposed any contact between Johnson and Spencer.
The prosecutor argued that this condition was necessary
because Johnson and Spencer "conspired together" on
the way to Smith's house to get Holly back at any cost.
Johnson's attorney disputed the notion that anyone in the
car was getting "tuned up" on the way to the Smith
residence. And he argued that, in any event, a no-contact
order was neither necessary nor the least restrictive
condition, given the father-son relationship between Johnson
court ultimately deleted the condition absolutely barring
Johnson from having contact with Spencer, explaining that
once sentencing was completed in both cases and the
defendants were out of custody, "I don't see why Mr.
Johnson can't have contact with his son." But, as it
had with Holly, the court made this contact contingent - only
if "both parties are in compliance with
court also imposed a condition allowing Johnson to have
contact with Spencer while Spencer's case was in
presentencing status, "so long as neither talks about
the case while they are incarcerated." Johnson does not
directly challenge this condition on appeal, and we note that
Spencer has since been convicted and sentenced.)
now appeals the challenged probation conditions.
State's jurisdictional argument
State argues that this Court lacks jurisdiction to consider
Johnson's appeal. If raised by a party or identified by
the court, a potential flaw in subject-matter jurisdiction is
a threshold issue that we must decide before addressing other
issues presented in an appeal.
Statute 12.55.120(a) limits a criminal defendant's right
of sentence appeal. Under AS 12.55.120(a), a defendant who
has received a felony sentence exceeding two years to serve
or a misdemeanor sentence exceeding 120 days may appeal the
sentence to this Court on the ground that it is excessive
"unless the sentence was imposed in accordance with a
plea agreement . . . and that agreement provided for
imposition of a specific sentence[.]" This Court's
jurisdictional statute, AS 22.07.020, specifically
incorporates the limitations set out in AS
State argues that this Court lacks jurisdiction to hear
Johnson's appeal because he agreed to his term of
imprisonment as part of a plea agreement. The answer to the