Silas v. State

          Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-99-1814 CR Michael L. Wolverton, Judge.

          J. Adam Bartlett, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

          Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

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

          OPINION

          MANNHEIMER, Judge

         As a condition of his probation, Roy F. Silas was ordered to participate in sex offender treatment as directed by his probation officer, and to "not... discontinue treatment" unless he had his probation officer's approval. After Silas had participated in a sex offender treatment program for over a year, the program director terminated him from the program for various reasons (reasons that we will examine in this opinion). Based on Silas's termination from the treatment program, the State petitioned the superior court to revoke his probation, alleging that Silas had violated his probation by discontinuing his treatment without permission.

         Silas's attorney argued that Silas had not "discontinued" treatment, but rather that Silas had been involuntarily discharged from the treatment program without good reason.

         The superior court ruled that it did not matter why Silas was terminated from the treatment program. The court interpreted Silas's condition of probation as requiring Silas to continue treatment until his probation officer said otherwise, and that Silas was in "technical violation" of his probation because he had been discharged from the treatment program - regardless of whether there was good cause for Silas's discharge.

         We conclude that the superior court's ruling was error. If it was true that Silas was discharged from the treatment program for no good reason (or for improper reasons), then Silas's discharge from treatment would not establish good cause for the court to revoke Silas's probation.

         As we recently explained in Pulusila v. State, ___ P.3d ___, 2018 WL 2272568 (Alaska App. 2018), our law forbids a sentencing court from revoking a defendant's probation unless the court finds that the facts surrounding the defendant's violation of probation constitute "good cause" to revoke probation. Pulusila, 2018 WL 2272568 at *2, 3, 6. In this context, "good cause" means a finding that "the corrective aims of probation cannot be achieved", and that "continuation of [the defendant's] probationary status would be at odds with the need to protect society and society's interest in the probationer's rehabilitation." Id. at *3, quoting Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973).

         In Silas's case, the superior court never reached the factual merits of the defense attorney's contention that Silas was terminated from treatment without good reason. Thus, Silas's case still presents disputed issues of fact that the superior court must address and resolve - and we remand Silas's case to the superior court for that purpose.

         Silas's case also presents other issues related to his conditions of probation.

         At the probation revocation hearing, the superior court rejected Silas's request that he be allowed to socialize with Patsy Schreiber, his romantic partner and the mother of his children. Because the superior court failed to offer any plausible basis for this restriction on Silas's family relationship, we reverse the superior court's ruling on this matter.

         Additionally, after the superior court revoked Silas's probation, the court added several new probation conditions. The court ordered Silas to enroll in domestic violence treatment, even though his case apparently presents no issue of violence. The court also ordered that, if a medical professional deemed it appropriate, Silas would be required to enroll in a residential treatment program. By adding the possibility of forced participation in residential treatment, the superior court illegally increased Silas's sentence. See Christensenv. State, 844 P.2d 557, 559 (Alaska App. 1993). We therefore direct the superior court to rescind these conditions.

         Underlying facts

         In 1999, Roy F. Silas was convicted of second-degree sexual abuse of a minor. He was sentenced to a term of active imprisonment, followed by probation for 10 years (with a 5-year suspended term of imprisonment). One of Silas's conditions of probation required him to participate in sex offender treatment as directed by his probation officer, and not to discontinue treatment without his probation officer's approval.

         After Silas was released on probation, his probation officer directed him to participate in sex offender treatment. In January 2011, Silas entered the sex offender treatment program run by the Center for Psychosocial Development. He participated in this program for more than a year, until May 2012, when he was arrested for stealing a laptop computer.

         Several weeks later, Silas was released from custody in connection with the theft of the laptop, and he re-entered the sex offender treatment program. But after a period of time, the director of the treatment program, Julie Holden, terminated Silas from the program. According to the discharge summary prepared by Holden, Silas was terminated from the program because he possessed several pornographic videos, because he did not adhere to his curfew, and because he was "unwilling[] to fully engage and participate in treatment".

         After Silas was discharged from the sex offender treatment program, the State petitioned the superior court to revoke his probation. The State alleged that Silas violated the requirement that he was "not to discontinue treatment" without his probation officer's approval.

         At the ensuing revocation hearing in the superior court, Silas's attorney argued that Silas had not "discontinued" his sex offender treatment - rather, Silas had been terminated from the program against his will. Through his cross-examination of Silas's probation officer and his cross-examination of Holden, as well as through Silas's own testimony, the defense attorney tried to show that Holden had terminated Silas from the program based on erroneous assumptions about Silas's ...