JASON D. RAY, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Third Judicial District, Trial Court
No. 3KO-13-00627 CR Kodiak, Steve Cole, Judge.
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.
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.
MANNHEIMER, Judge SUDDOCK, and Judge ALLARD, each writing
separately on the proper interpretation of AS 12.55.090(f).
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.
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
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.
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. 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
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.
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.
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.)
appeal, Ray challenges the superior court's action on two
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.
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.
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.
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).
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.
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.
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.
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.
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
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).
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. 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.
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).
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).
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.
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
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.)
we conclude that the judge properly found that Ray violated
his conditions of probation
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
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.
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
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.
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.
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.
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.
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.
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. And Ray does not argue that the judge
committed plain error by failing to hold a Daubert
hearing sua sponte.
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.
these reasons, we find no plain error.
to the question of whether the superior court was authorized
to subject Ray to further probation after Ray expressly
rejected further probation
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
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
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).
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
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.
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.
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.
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).
we reject Ray's contention that he has a constitutional
right to refuse further probation
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 as well as this Court's decision in
Sweezey v. State. 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.
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).
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.
therefore reject Ray's contention that he has a
constitutional right to refuse further probation. Any such
right must derive from statute.
we certify the question of the proper interpretation of AS
12.55.090(f) to the supreme court
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.
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
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