Ray v. State

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3KO-13-00627 CR Kodiak, Steve Cole, Judge.

          Amanda Harber, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Stephen B. Wallace, District Attorney, Kodiak, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

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

          Judge MANNHEIMER, writing for the Court on all issues except the proper interpretation of AS 12.55.090(f), and certifying this last issue to the Alaska Supreme Court.

          Judge MANNHEIMER, Judge SUDDOCK, and Judge ALLARD, each writing separately on the proper interpretation of AS 12.55.090(f).

          OPINION ^[*]

         In December 2013, pursuant to a plea agreement, Jason D. Ray pleaded guilty to theft in the second degree. The plea agreement called for Ray to receive a sentence of 24 months' imprisonment with 20 months suspended (4 months to serve), followed by 3 years of probation. Ray served his 4 months, and he was released on probation.

         In the summer of 2014, Ray admitted that he had violated two of his conditions of probation, and he was adjudicated to have violated two others. Then, at his probation revocation disposition hearing, Ray announced that he wished to rej ect further probation.

         In Brown v. State, the Alaska Supreme Court construed Alaska's probation statutes as giving criminal defendants the right to refuse probation at their initial sentencing, or to later refuse continued probation.^[1]

         Under Brown, when a defendant who has been on probation decides to reject further probation, the sentencing court must then give the defendant a "flat-time" sentence by imposing some or all of the defendant's remaining suspended jail time and terminating the defendant's probation.^[2] The sentencing judge must not automatically impose all of the defendant's remaining suspended jail time, but rather must evaluate all the circumstances of the defendant's case and impose an appropriate sentence under the sentencing criteria established by the supreme court in State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970), and now codified in AS 12.55.005.^[3]

         But in Ray's case, the superior court refused to honor Ray's decision to reject further probation. Instead, the court imposed a sentence which continued to include suspended jail time, and which still left Ray on probation. In fact, the sentencing judge extended Ray's term of probation - from 3 years to 5 years.

         The judge sentenced Ray to serve 16 months, which was all but 90 days of Ray's suspended jail time. The judge then placed Ray on unsupervised probation for 5 years after he completed serving the 16 months in jail. The only condition of this unsupervised probation was that Ray obey the law.

         (The judge's apparent purpose for keeping Ray on unsupervised probation was to allow the court to impose a more severe sentence if Ray committed another felony before his 5 years of probation expired. Under AS 12.55.15 5(c)(20), if a person commits a felony while they are on felony probation, this fact allows the sentencing court to increase their sentence above the applicable presumptive sentencing range.)

         In this appeal, Ray challenges the superior court's action on two grounds.

         First, Ray contends that the superior court committed error when the court ruled against him on the two contested violations of probation. Ray argues that the evidence presented at his revocation hearing was insufficient to support the superior court's findings that Ray committed the two contested violations of probation.

         Second, Ray contends that the superior court acted illegally when the court kept Ray on probation after Ray declared that he wished to reject further probation.

         We conclude that the evidence was sufficient to support the judge's findings that Ray violated the two conditions of probation. We further reject Ray's contention that he had a constitutional right to reject further probation.

         But with regard to whether Ray had a statutory right to reject probation, this Court is unable to reach a majority decision-because no two of us are able to agree on the proper interpretation of a probation statute, AS 12.55.090(f). We therefore certify this issue of statutory interpretation to the Alaska Supreme Court. See AS 22.05.015(b).

         Background facts

         Jason Ray lived in Kodiak. In early July 2014, Ray's probation officer, Jill Bunting, issued him a travel permit that allowed Ray to go to Anchorage and reside at the Brother Francis Shelter for one week while he looked for work.

         In mid-July 2014, Probation Officer Bunting asked the superior court to revoke Ray's probation, alleging that Ray had violated several conditions of his probation. Of these various allegations, two are germane to this appeal: the allegation that Ray left the Brother Francis Shelter and went to stay elsewhere without obtaining the written permission of his probation officer, and the allegation that Ray consumed alcohol to excess while he was in Anchorage.

         Officer Bunting was the only witness at Ray's adjudication hearing. Bunting testified that Ray violated the conditions of his travel pass by not staying at the Brother Francis Shelter while he was in Anchorage seeking work. According to Bunting, shortly after Ray arrived in Anchorage, Ray left several voice messages for her. In these voice messages, Ray told Bunting that he would be staying at the Ted Stevens International Airport because he did not want to stay at the Brother Francis Shelter.

         Bunting also testified that she received a report from the Anchorage Police Department that the police had responded to a fight in which Ray was purportedly involved. The police administered a portable breath test to Ray, and the breath-testing device registered a blood alcohol level of. 121 percent.

         At the revocation hearing, Ray's attorney argued that Ray had not violated the condition of probation requiring him to notify his probation officer of changes of residence, because the Brother Francis Shelter had not been Ray's "residence". The defense attorney contended that the term "residence" implied more permanence than a short-term lodging.

         With regard to the allegation of intoxication, Ray's attorney raised a hearsay objection to Bunting's testimony about the reading of the portable breath test device, since Bunting had no personal knowledge of that reading, and she was only relaying what she had been told by the Anchorage police. The judge overruled this objection, since the hearsay rules do not apply at probation revocation hearings. See Alaska Evidence Rule 101(c)(2).

         Later, during the defense attorney's summation to the judge, the attorney argued that the judge should place little or no weight on the portable breath test reading, because portable breath-testing devices had not been shown to meet the standard for the admission of scientific evidence established in Daubert v. Merrell Dow Pharmaceuticals and State v. Coon.^[4] The defense attorney further argued that, without the result of the portable breath test, the State's evidence was insufficient to prove that Ray was intoxicated when he was contacted by the police.

         The judge concluded that Ray had violated both of the conditions of his probation (as well as other conditions of probation that are not at issue in this appeal).

         Then, at Ray's disposition hearing, Ray elected to reject further probation. At that time, Ray had 19 months of suspended jail time remaining on his sentence (less the time he had spent in jail awaiting the resolution of the petition to revoke probation).

         Probation Officer Bunting asked the court to impose all of Ray's remaining suspended sentence, and to end his probation. She declared that she did not think anything could be achieved by returning Ray to probation.

         Notwithstanding Ray's rejection of probation, and notwithstanding the probation officer's endorsement of Ray's request for an end to his probation, the judge decided to keep Ray on probation for 5 years after he finished serving his active term of imprisonment. More specifically, the judge sentenced Ray to 19 months in jail with 3 months suspended, with probation for 5 years after he got out of jail. However, the judge amended Ray's conditions of probation to make the probation unsupervised, with the sole condition that Ray obey all laws.

         (Although the judge did not explain his decision, the judge was apparently influenced by the prosecutor's argument that Ray should be kept on probation so that, if he committed another felony in the future, his crime would be aggravated under AS 12.55.155(c)(20), which applies when a defendant commits a felony while on furlough, parole, or probation from a prior felony conviction.)

         Why we conclude that the judge properly found that Ray violated his conditions of probation

         On appeal, Ray renews his claim that neither the Brother Francis Shelter nor the Anchorage Airport constituted his "residence", because these were only short- term lodgings. Ray asserts that, despite his travel to Anchorage, his residence continued to be the City of Kodiak (more specifically, the "streets of Kodiak", because Ray was apparently homeless). Ray also argues that, regardless of where his "residence" was, the real point of the probation condition was to make sure that his probation officer knew where he was - and Ray points out that he told his probation officer that he intended to stay at the airport.

         But the superior court concluded that, despite whatever technical meanings the term "residence" might have, the intent of the probation condition was both (1) to make sure that Bunting knew where Ray was, and (2) to make sure that Ray stayed in the agreed-upon place (i.e., the shelter) unless he had Bunting's permission to live elsewhere. The court further found that Ray knew what the probation condition required.

         This was a reasonable interpretation of the probation condition, and a reasonable conclusion regarding Ray's state of knowledge. We therefore uphold the superior court's ruling.^[5]

         With regard to the finding that Ray was intoxicated in Anchorage, Ray claims that the court should not have relied on the result obtained on the portable breath test device (the "PBT"), because these devices have not been shown to meet the standard for the admission of scientific evidence, and because the prosecutor made no attempt to lay an evidentiary foundation for this testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., and Daubert's Alaska counterpart, State v. Coon.^[6]

         But as we have explained, when Bunting offered testimony concerning the PBT reading, the only objection that Ray's attorney raised was a hearsay objection. This objection had no merit: Alaska Evidence Rule 101 (c)(2) states that, apart from the rules pertaining to evidentiary privilege, the rules of evidence do not apply to probation proceedings.

         It was only later, during summation, that the defense attorney shifted her argument - no longer pressing her original assertion that Bunting's testimony on this point was inadmissible hearsay, but instead asserting that, even if this testimony was admissible, little or no weight should be given to the PBT reading because the State had not laid a Daubert foundation for the PBT device.

         We note that the defense attorney did not frame her Daubert argument as a late objection to the admission of Bunting's testimony. Rather, the defense attorney argued only that the testimony should be given little or no weight.

         Moreover, because the rules of evidence do not apply to probation revocation hearings, it is unclear whether Ray's attorney could properly object to the PBT evidence under Daubert and Coon. Both Daubert and Coon are based on interpretations of Evidence Rule 702: Daubert established the foundational requirement for introducing scientific evidence under Federal Evidence Rule 702, and Coon adopted the Daubert test as the foundational requirement for introducing scientific evidence under Alaska Evidence Rule 702. But Alaska Evidence Rule 101 (c)(2) declares that the rules of evidence (other than the rules of privilege) do not apply to probation revocation proceedings. It is therefore uncertain whether Ray's attorney could properly object to the PBT results under Daubert and Coon.

         Even assuming that a Daubert-Coon objection would have been proper, Ray's attorney did not make a contemporaneous Daubert-Coon objection to the admission of the probation officer's testimony about the PBT result. Ray thus failed to preserve this issue for appeal.^[7] And Ray does not argue that the judge committed plain error by failing to hold a Daubert hearing sua sponte.

         In any event, as the judge noted, the PBT result in Ray's case (. 12 percent) was substantially higher than the .08 percent threshold for DUI. Thus, even if the PBT reading was only an approximation of Ray's blood alcohol level, the PBT reading was sufficient to support a finding that Ray had consumed alcohol to excess.

         For these reasons, we find no plain error.

         Introduction to the question of whether the superior court was authorized to subject Ray to further probation after Ray expressly rejected further probation

         As we explained in the introductory section of this opinion, the Alaska Supreme Court held in Brown v. State that, under Alaska's probation statutes, a defendant has the right to reject probation and demand a "flat-time" sentence - i.e., a sentence consisting solely of active imprisonment, with no suspended jail time and no probation.^[8]

         When Ray's defense attorney announced at the disposition hearing that Ray had decided to reject further probation, the sentencing judge responded, "That certainly changes things." The judge then questioned Ray about his understanding of the consequences of his choice, and about the voluntariness of Ray's decision. After completing this inquiry, and without objection from the prosecutor, the judge accepted Ray's decision to reject further probation.

         Nevertheless, as we have explained, the judge did not terminate Ray's probation. Instead, the judge sentenced Ray to serve 5 years on unsupervised probation after Ray completed a sentence of 16 months in prison (leaving Ray with a further 3 months of suspended jail time).

         On appeal, Ray argues that, because he expressly rejected further probation, the superior court was barred from imposing a sentence that included more probation. More specifically, Ray argues that criminal defendants have a constitutional right to reject probation - and thus, when Ray made his choice to refuse further probation, the judge was required to simply impose some or all of Ray's remaining suspended jail time, and to release him from further probation supervision.

         The State, for its part, contends that a 2012 amendment to Alaska's probation statutes, AS 12.55.090(f), prohibits a defendant from rejecting further probation if the defendant was initially sentenced under a plea bargain that called for a specific term of probation. As we have explained, Ray's plea agreement stated that he would receive a 3-year term of probation. The State therefore argues that Ray had no right to request an early end to his probation.

         As we are about to explain, we reject Ray's argument that he has a constitutional right to reject probation. However, no two members of this Court are able to agree on whether Ray still has the statutory right to reject probation described by our supreme court in Brown.

         More specifically, no two members of this Court are able to agree on the proper interpretation of AS 12.55.090(f): whether, under this statute, defendants in Ray's position still have a statutory right to reject probation - and, if they still have this right, what rules govern the sentencing court's authority or duty with respect to the defendant's final sentence of imprisonment.

         Because we cannot reach a majority decision on this issue of statutory interpretation, we certify this issue to the Alaska Supreme Court pursuant to AS 22.05.015(b).

         Why we reject Ray's contention that he has a constitutional right to refuse further probation

         In support of his contention that criminal defendants have a constitutional right to refuse probation, Ray cites the Alaska Supreme Court's decision in Brown v. State^[9] as well as this Court's decision in Sweezey v. State.^[10] But even though both of these decisions affirm a probationer's right to refuse probation, neither of these decisions says that this right is a constitutional right. Instead, both Brown and Sweezey declare that the right to refuse probation is derived from "[the Alaska] statutes governing probation". See Brown, 559 P.2d at 111 n. 13, and Sweezey, 167 P.3d at 80.

         Indeed, as our supreme court recognized in Pete v. State, 379 P.2d 625, 626 (Alaska 1963), courts have no inherent authority to suspend a portion of a defendant's sentence and to place a defendant on probation. This power must be granted by the legislature. See also Edwards v. State, 34 P.3d 962, 968 (Alaska App. 2001).

         Because the power to suspend a sentence and impose probation must be granted by statute, the scope and terms of this power are governed by the provisions of the granting statute. This is why, in Chinuhuk v. State, 413 P.3d 1215 (Alaska App. 2018), this Court upheld a special type of probation created by the legislature for sex offenders - a type of probation that expressly could not be rejected by the defendant- against the claim that Brown prohibited this type of non-refusable probation. Chinuhuk, 413 P.3d at 1219-1220.

         We therefore reject Ray's contention that he has a constitutional right to refuse further probation. Any such right must derive from statute.

         Why we certify the question of the proper interpretation of AS 12.55.090(f) to the supreme court

         More than forty years ago, in Brown, the Alaska Supreme Court construed our probation statutes as giving criminal defendants the right to reject probation. Indeed, during the probation revocation proceedings in Ray's case, the sentencing judge seemingly acknowledged Ray's right to reject further probation. The judge also expressly acknowledged that he should not automatically impose all of Ray's remaining jail time - that he was required, instead, to evaluate Ray's sentence under the Chaney sentencing criteria.

         Nevertheless, when the time came to impose sentence, the judge adopted the prosecutor's suggestion of extending Ray's probation to 5 years so that, if Ray committed another felony, he would be subject to an aggravated sentence under AS 12.55.155(c)(20).

         The proceedings in the superior court are notable in two respects. First, when Ray announced that he wished to end his probation, the prosecutor never argued that Ray was statutorily prohibited from rejecting further probation - which is the position that the State takes in this appeal. Second, when the prosecutor expressly asked the judge to extend Ray's probation to 5 years, and when the sentencing judge followed the prosecutor's recommendation, Ray's attorney never objected that any continued probation was illegal - which is the position that Ray ...