Appeal
from the Superior Court, Third Judicial District, Anchorage,
No. 3AN-13-2222 CR Michael R. Spaan, Judge.
Paul
E. Malin, under contract with the Public Defender Agency, and
Quinlan Steiner, Public Defender, Anchorage, for the
Appellant.
Saritha R Anjilvel, Assistant District Attorney, Anchorage,
and Craig W. Richards, Attorney General, Juneau, for the
Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
MANNHEIMER, JUDGE
Victoria
Diamond Love assaulted three persons in another apartment in
the complex where she lived. Following a jury trial, Love was
convicted of second-, third-, and fourth-degree
assault[1] for slicing the fingers of one of her
victims with a knife, for brandishing the knife in a
threatening manner, and for putting another of her victims in
fear of imminent physical injury.
The
pre-sentence report in Love's case included two pages of
recommended conditions of probation. Love's attorney did
not object to any of these proposed probation conditions. In
fact, the only time the defense attorney mentioned the
proposed conditions of probation was when the attorney told
the judge that Love did not object to a probation condition
prohibiting her from returning to the apartment building.
When
the judge imposed Love's sentence, he did not
specifically mention all of these proposed probation
conditions. Instead, the judge mentioned only a few of the
special conditions of probation listed in the pre-sentence
report. But later, when the judge issued the written
judgement in Love's case, this judgement included all of
the conditions of probation proposed in the pre-sentence
report.
In this
appeal, Love challenges four of the special conditions of
probation that the judge did not explicitly mention when he
imposed Love's sentence. Love contends that the inclusion
of these four conditions in the court's written judgement
constitutes an illegal increase in her sentence - a violation
of the double jeopardy clause.[2]
We
reject Love's double jeopardy claim because the record of
the sentencing proceedings shows that the prosecutor, the
defense attorney, and the judge were all operating with the
understanding that, in the absence of an objection, the judge
would impose all of the recommended conditions of probation.
At the
sentencing hearing, the judge referred to the recommended
probation conditions as a group. For example, the judge asked
whether these recommended probation conditions included a
provision for mental health treatment. When the prosecutor
replied that such a condition was included, the judge
responded, "Good, good." And at another point in
the sentencing hearing, after one of Love's neighbors
expressed fear that Love might return to their apartment
building after she served her time in prison, the judge
stated that he was going to "expand" the conditions
of probation by adding a "do-not-return-to-the-apartment
condition". In addition, during the sentencing, one of
the victims voiced the fear that Love would return to the
apartment complex and hurt her or her sister (with whom she
lived). The judge addressed this concern by telling the
victim that the list of recommended probation conditions
included a "no-contact" order that prohibited Love
from contacting the victims in the future. The judge advised
the victim that if Love contacted her sister following her
release, she should call the police.
Based
on this record, we conclude that the judge intended to impose
all of the conditions of probation proposed in the
pre-sentence report, and that both the prosecutor and
Love's attorney understood this to be thecase. We
therefore find that the judge did not violate the double
jeopardy clause when he included all of these recommended
probation conditions in his written judgement, even though he
did not explicitly mention all of these conditions during his
sentencing remarks.
Love
separately challenges Special Probation Condition 5, which
requires Love to take any medication prescribed for her by a
licensed medical practitioner approved by her probation
officer. This probation condition is subj ect to special
scrutiny because it restricts Love's right of
self-determination regarding medical treatment, and also
because it potentially requires Love to take psychotropic
medication against her will.[3] However, Love did not object to
this condition of probation, so she must now show plain
error.[4]
Although,
on its face, the challenged probation condition applies to
any and all medications that might be prescribed by
Love's doctors, the probation condition must be
interpreted in the context of Love's case. Given this
context, we interpret the probation condition as applying
only to mental health medication that ...