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Kozevnikoff v. State

Court of Appeals of Alaska

August 3, 2018

MARTIN TYLER KOZEVNIKOFF, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Fourth Judicial District, Bethel, Raymond M. Funk, Judge. Trial Court No. 4BE-11-453 CR

          Peter Kopperud, Assistant Public Advocate, and Richard Allen, Public Advocate (opening brief), and Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Office of Public Advocacy (reply brief), Anchorage, for the Appellant.

          Tamara E. DeLucia, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          SUDDOCK, JUDGE

         Martin Tyler Kozevnikoff pleaded guilty to one count of first-degree sexual abuse of a minor.[1] Over a defense objection, the sentencing judge imposed Special Condition of Probation No. 11 requiring Kozevnikoff to undergo a mental health evaluation and, if recommended, to take prescribed drugs.

         Kozevnikoff challenges this condition of probation, arguing that it unduly restricts his liberty. The State responds that the special condition is reasonably related to Kozevnikoff s rehabilitation and to the protection of the public, and is not unduly restrictive.

         We find the current record insufficient to support the probation condition, and we remand the case for further proceedings.

         Background facts and proceedings

         When Kozevnikoff was twenty-one, he sexually penetrated and had sexual contact with his two sisters and an unrelated boy; the girls were three and five, and the boy was five.

         Kozevnikoff was charged with three counts of first-degree sexual abuse of a minor and three counts of second-degree sexual abuse of a minor. Pursuant to a Criminal Rule 11 plea agreement, he pleaded guilty to one count of first-degree sexual abuse of a minor. Superior Court Judge pro tern Raymond M. Funk sentenced him to 35 years' incarceration with 10 years suspended (25 years to serve) and 15 years' probation.

         Over defense objection, the judge imposed a probation condition requiring Kozevnikoff to take any medication that he might be prescribed after a mental health evaluation:

You must obtain a DOC approved mental health evaluation and follow all recommendations, which may include ingestion of medications as prescribed by a licensed practitioner. You shall totally abstain from use and possession of any drugs not prescribed by a licensed practitioner. If any side effect issues cannot be resolved with your physician then you are entitled to have a review hearing with the court.

         The judge acknowledged that certain psychotropic medications can have "terrible lifelong side effects [such as] involuntary shaking." But he concluded that "a defendant with mental health issues, especially given the gravity of this kind of case, shouldn't be ...


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