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Johnson v. State

Court of Appeals of Alaska

April 20, 2018

ANDREW DENNIS JOHNSON, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3PA-12-581 CR Palmer, Kari C. Kristiansen, Judge.

          Hanley 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 Appellee.

          Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

          OPINION

          WOLLENBERG JUDGE.

         Andrew 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.

         On 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.

         Underlying facts

         On 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.

         Later 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.

         Carlton 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 residence.

         Upon 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 there.

         Seeing 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 men fled.

         Plummer died at the scene.

         Proceedings

         The 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.[1] The State also charged Spencer Johnson with first-degree murder and related charges. Carlton was not charged.

         Pursuant 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 court.

         Prior 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.

         Johnson's 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.

         At 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."

         The 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 and Spencer.

         The 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 probation/parole."

         (The 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.[2])

         Johnson now appeals the challenged probation conditions.

         The State's jurisdictional argument

         The 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.[3]

         Alaska 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 12.55.120.[4]

         The 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 State's ...


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