Jason D. RAY, Appellant,
v.
STATE of Alaska, Appellee.
Page 689
Appeal
from the Superior Court, Third Judicial District, Kodiak,
Steve Cole, Judge. Trial Court No. 3KO-13-00627 CR
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.[*]
OPINION
MANNHEIMER, 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.
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
Page 690
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 reject
further probation.
In
Brown v. State, the Alaska Supreme Court construed
Alaskas 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 defendants remaining
suspended jail time and terminating the defendants
probation.[2] The sentencing judge must not
automatically impose all of the defendants remaining
suspended jail time, but rather must evaluate all the
circumstances of the defendants 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
Rays case, the superior court refused to honor Rays
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 Rays term of probation —
from 3 years to 5 years.
The
judge sentenced Ray to serve 16 months, which was all but 90
days of Rays 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
judges 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 12.55.155(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 courts 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
courts 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
judges findings that Ray violated the two conditions of
probation. We further reject Rays 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, Rays 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 Rays
Page 691
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 Rays 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, Rays 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 Rays
"residence". The defense attorney contended that
the term "residence" implied more permanence than a
short-term lodging.
With
regard to the allegation of intoxication, Rays attorney
raised a hearsay objection to Buntings 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 attorneys 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
States 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 Rays 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
Rays 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 Rays rejection of probation, and
notwithstanding the probation officers endorsement of Rays
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 Rays 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 prosecutors 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.)
Page 692
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 Buntings 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 Rays state of
knowledge. We therefore uphold the superior courts
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
Dauberts Alaska counterpart, State v. Coon
.[6]
But as
we have explained, when Bunting offered testimony concerning
the PBT reading, the only objection that Rays 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 Buntings 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
Buntings 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 Rays 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 Rays attorney could properly object to the
PBT results under Daubert and Coon .
Page 693
Even
assuming that a Daubert - Coon
objection would have been proper, Rays attorney did not make
a contemporaneous Daubert - Coon
objection to the admission of the probation
officers 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 Rays case (.12
percent) was substantially higher than the .08 percent
threshold for DUI. Thus, even if the PBT reading was only an
approximation of Rays 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
...