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Lambert v. State (12/21/2007) ap-2133

Lambert v. State (12/21/2007) ap-2133

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us
               

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JOSHUA D. LAMBERT, )
) Court of Appeals No. A-9665
Appellant, ) Trial Court No. 3KO-05-706 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 2133 - December 21, 2007]
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kodiak, Joel H. Bolger, Judge.

          Appearances:    Suzanne   Rapoza,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Timothy   W.   Terrell,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.
          
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          In  Roman  v.  State,1 the Alaska Supreme Court  stated
that,  to  be  valid,  parole and probation conditions2  must  be
reasonably related to the rehabilitation of the offender and  the
protection  of  the public and must not be unduly restrictive  of
liberty.3
          Joshua  D.  Lambert  contends that the  superior  court
erred in imposing three special conditions of probation that: (1)
          require he obtain a substance abuse evaluation;4 (2) prohibit him
from   using   or   possessing  alcohol  or  illegal   controlled
substances,  and  require that he submit  to  testing  for  those
substances;5 and (3) require him to actively participate  in  and
successfully  complete  an approved substance  abuse  program  if
recommended  by  the evaluation and directed  to  do  so  by  his
probation officer.6  Lambert also objects to General Condition of
Probation No. 12, which requires Lambert to submit,
                                      at   the  request  of   his
probation  officer, to a search of his person, personal property,
residence  or  any  vehicle in which [he] may be  found  for  the
presence of contraband.7
          We  conclude  that  the  three  special  conditions  of
probation are valid under the  Roman test.   But we conclude that
General  Condition of Probation No. 12  authorizing searches  for
contraband  is overly broad.

          Factual and procedural background
          On  September  6,  2005, Kodiak Police  Lieutenant  Ray
Ellis  was  advised by radio dispatch that a 911  call  had  been
received  regarding  an  assault in progress.   Lieutenant  Ellis
responded  to the scene and contacted Danny Ingram.   Ingram  was
bleeding severely from his head.  He told Lieutenant  Ellis  that
he  had  been  assaulted by two males who struck him with  rocks.
Lieutenant  Ellis contacted five eyewitnesses to the assault  who
described Lambert and Edward T. Taualo as the perpetrators.   The
police  apprehended  Taualo a short distance  from  the  assault.
Taualo  later confessed that he met Lambert at a local bar  where
he (Taualo) was drinking.  According to Taualo, Lambert recruited
him  at  the bar to assault Ingram, claiming that Ingram sexually
assaulted  Lamberts ex-girlfriend.  Investigation by  the  police
revealed   Ingram  had  not  sexually  assaulted   Lamberts   ex-
girlfriend,  nor had he ever engaged in any sexual  contact  with
her.
          Both  Lambert and Taualo were charged with  assault  in
the first degree8 and attempted murder in the first degree.9  The
Grand  Jury  for  the Third Judicial District at Kodiak  indicted
Lambert and Taualo for assault in the first degree, but found not
a  true  bill  for the charge of attempted murder  in  the  first
degree.
          On  December  7,  2005, Superior Court  Judge  Joel  H.
Bolger accepted Lamberts plea of no contest to the lesser offense
of assault in the third degree.10  On March 9, 2006, Judge Bolger
presided over Lamberts sentencing hearing.  He sentenced  Lambert
to  60  months of imprisonment with 30 months suspended,  and  he
imposed thirteen general conditions of probation and nine special
conditions of probation.
          Following  his sentencing, Lambert filed  a  motion  in
which  he  sought  to  have the court remove four  conditions  of
probation  (Special Conditions of Probation Nos.  7,  8,  and  9;
General  Condition  of Probation No. 12).   Lambert  argued  that
these  conditions of probation violated the Alaska Supreme Courts
requirement  from  Roman  that there  be  a  direct  relationship
between  the  probation condition and the  crime  for  which  the
probationer  was  convicted.11    Judge  Bolger  denied  Lamberts
          motion, concluding that the disputed conditions were necessary
both to further Lamberts rehabilitation and for the protection of
the public.  Lambert appeals this decision.

          Why we uphold Judge Bolgers refusal to modify
          Lamberts special conditions of probation

            In  Roman,  the court stated that a sentencing  judge
should  not  require  a  parolee  or  probationer  to  submit  to
warrantless searches unless there is a direct relationship of the
searches  to  the nature of the crime for which the  parolee  was
convicted.12    Less  than  two years after  deciding  Roman,  in
Sprague  v. State,13 the court invalidated a probation  condition
that  required the defendant to submit to searches for drugs when
his  underlying conviction was for burglary.14  Although  Sprague
admitted to a history of drug use and drug contacts,15 the  court
struck  the  condition because it determined that  upholding  the
probation condition would, in effect, be opening up virtually all
classes  of  offenders  to  warrantless  searches  on  less  than
probable  cause.16  The court did note, however, that a condition
of  probation requiring Sprague to submit to searches for  stolen
goods would be appropriate.17
          This  court  has  decided  several  cases  interpreting
Roman.   For example, in Allain v. State,18 Allain argued that  a
probation  condition that prohibited him from consuming alcoholic
beverages   was   not  reasonably  related   to   the   goal   of
rehabilitation because the misconduct in his current case was not
shown  to  have been alcohol related.19 We acknowledged that  the
record  disclose[d] no direct link between Allains  drinking  and
his  current  offense.20   But we upheld the probation  condition
because our review of the record convinced us that the sentencing
judge  could  reasonably have concluded that Allains chances  for
successfully addressing his problems with immaturity, anger,  and
impulsiveness  could  be  enhanced by eliminating  the  potential
distraction  and  complication that  might  be  posed  if  Allain
developed an incipient problem with alcohol abuse.21
     In  Miyasato v. State,22  Miyasato asserted that a condition
of  probation  that required him to undergo sex offender  therapy
was  not  reasonably  related to his rehabilitation  for  second-
degree  burglary.23  Miyasatos argument was premised on the  fact
that  his  conviction was for a property offense,  not  a  sexual
assault.24    We  held  that a condition of  probation  need  not
directly  relate  to the offense for which the  defendant  stands
convicted,25  so  long  as  it  is  reasonably  related  to   the
rehabilitation of the offender and the protection of the public26
and  not  unduly  restrictive  of [the  probationers]  liberty.27
Miyasato  had  a  past  record of attempted  first-degree  sexual
assault,  third-degree sexual assault, and first-degree  criminal
trespass.28    Therefore, we found ample basis for [the  superior
court  judge]  to  conclude  that  sex  offender  treatment   was
integrally related to Miyasatos rehabilitation and to the  future
protection of the public.29
          In   State  v.  Thomas,30 Thomas  was  subjected  to  a
probation  condition that required him to submit  to  warrantless
searches  for  controlled substances.31   When  one  such  search
          uncovered cocaine in Thomass wallet, he asserted the cocaine
should  be  suppressed.  Thomas argued that the sentencing  judge
lacked  a  proper  basis for imposing such a probation  condition
because  Thomass prior convictions were for first-degree  vehicle
theft  and for driving while intoxicated after consuming  alcohol
(not drugs).32  The superior court judge agreed with Thomas;  the
judge  struck  the  condition  of probation  and  suppressed  the
cocaine.33    We reversed, finding that Thomass history  of  drug
use  made  it  reasonable for [the sentencing judge] to  conclude
that  a  condition  of  probation allowing  drug  searches  would
further  both  Thomass rehabilitation and the protection  of  the
public.34
          Interpreting  the  supreme courts invalidation  of  the
similar condition in Sprague, we observed:
          [T]he [supreme] court did not base its ruling
          on  the fact that the elements of burglary do
          not  require proof of drug possession or drug
          use.   Instead, the court employed a  broader
          test.    The  court  declared  that  Spragues
          condition  of  probation was invalid  because
          (1)  Sprague  was  not convicted  of  a  drug
          offense,  and  (2) there was no showing  that
          Sprague was addicted to drugs, or that he had
          committed  the  burglary in order  to  obtain
          money  to  buy  drugs.  In other  words,  the
          supreme courts explanation of its decision in
          Sprague  demonstrates that the  reference  in
          Roman to the nature of the [defendants] crime
          encompasses more than simply the elements  of
          that  crime.  Rather, the supreme court meant
          to  authorize  conditions of  probation  that
          addressed  the causes of, or the  motivations
          for,  the defendants criminal behavior.   The
          true  test  is  the  alternative  formulation
          contained  in  the  Roman opinion  itself:  a
          condition  of  probation must  be  reasonably
          related to the rehabilitation of the offender
          and  the protection of the public[,] and must
          not  be unduly restrictive of [the offenders]
          liberty.[35]

Therefore,  so  long  as a condition of probation  is  reasonably
related  to  the  defendants rehabilitation  and  is  not  unduly
restrictive,  it  meets the Roman requirement.                 We
turn  now  to Special Conditions 7, 8, and 9.  Special  Condition
No.  7  required  Lambert to obtain a substance abuse  evaluation
from an approved substance abuse provider within thirty (30) days
of  his  release from incarceration and make the results  of  the
evaluation available to his probation or parole officer.  Special
Condition  No.  8  required Lambert to not  use  or  possess  any
alcoholic  beverages or illegal substances, including  marijuana.
Special Condition No. 8 also required Lambert, if required by his
probation officer, to submit to testing for alcohol or controlled
substances.  Special Condition No. 9 required Lambert to actively
participate  in  and successfully complete an approved  substance
abuse  program if such a program was recommended by  a  treatment
evaluation  and  directed  by his probation  or  parole  officer.
Special  Condition  No.  9 also stated  that  Lambert  could  not
discontinue  treatment without prior written  approval  from  his
probation  or parole officer.  Lambert was subject to serving  up
to 30 days in a residential treatment program.
          In  his  order  denying Lamberts motion to  modify  the
conditions  of probation, Judge Bolger found that Lambert  had  a
history  of  substance abuse and that the facts  of  his  current
offense  supported  the conditions of probation.    Judge  Bolger
pointed  out  that  Lambert had three prior  felony  convictions,
including a conviction in 2002 for possession of methamphetamine.
He  also  noted that in 2003, Lambert was convicted  for  driving
under  the  influence of alcohol and his conditions of  probation
included  alcohol  screening.  And in the present  case,  Lambert
recruited his codefendant in a bar.  Judge Bolger concluded that:
               Lamberts    history   of   criminal
               convictions establishes that he has
               serious   and  unresolved  problems
               with  substance  abuse.   And   the
               bizarre   facts  of   the   present
               offense  suggest that alcohol  also
               played a role in this assault.  The
               disputed  conditions are  therefore
               necessary both to further  Lamberts
               rehabilitation    and    for    the
               protection of the public.
                                        
          We  conclude that Judge Bolgers case-specific  findings
support the special conditions of probation under the Roman test.

          Why  we  conclude that Judge Bolgers findings
          do  not  support the condition  of  probation
          authorizing broad searches for contraband

          General Condition of Probation No. 12, which appears to
be  a  standard  condition of probation that may appear  in  many
judgments,   requires Lambert  to submit to  a  search  of  [his]
person, personal property, residence or any vehicle in which [he]
may be found for the presence of contraband upon the request of a
probation officer.
          General  Condition No. 12 authorizes a search  for  any
type  of  contraband.  Lambert argues, and the State  essentially
concedes,  that  contraband could include stolen property[,]  ...
weapons,  burglar[y]  tools,  counterfeit  mon[ey],  photographs,
videotapes,  illegally  imported produce, eagle  feathers[,]  and
even illegal immigrants.
          In  Marunich v. State,36 we stated that [u]nder  Alaska
law, a sentencing court must expressly authorize, and must find a
case-specific basis for, any condition of probation that requires
the  probationer  to  submit to warrantless searches  for  drugs,
weapons, or other items.37
          We  conclude  that  the trial court made  case-specific
findings   for  imposing  the  special  conditions  of  probation
directed at Lamberts alcohol and substance abuse.  But the  trial
          court did not justify imposing the broad general condition of
probation   authorizing  searches  for  contraband   other   than
controlled  substances.  We direct the superior  court  to  limit
General Condition No. 12 of probation to searches for alcohol  or
controlled substances.
          AFFIRMED in part, REVERSED in part, and REMANDED.




                    
                    

                         
_______________________________
     1 570 P.2d 1235 (Alaska 1977).

     2 Id. at 1237 n.3 (no valid reason to further complicate the
law by distinguishing between probationers and parolees).

     3 Id. at 1240.

4  Special  Condition  of Probation No. 7:  The  defendant  shall
obtain  a  substance abuse evaluation from an approved  substance
abuse  provider  within  thirty (30) days  of  his  release  from
incarceration and make the results of the evaluation available to
his probation or parole officer.

     5  Special Condition of Probation No. 8: The defendant shall
not  use, possess, consume, ingest or have in any of [his] bodily
fluids  any alcoholic beverages or illegal controlled substances,
including  marijuana.  The defendant is to  submit  to  urine  or
blood  samples  to  test for use of controlled substances  and/or
alcohol when required by the probation or parole officer.

     6  Special Condition of Probation No. 9: The defendant shall
actively  participate  in and successfully complete  an  approved
substance  abuse program if recommended by evaluation, which  may
include  a  residential treatment program of up  to  thirty  (30)
days,  at the direction of the probation or parole officer.   The
defendant  shall  not  discontinue treatment  without  the  prior
written approval of [his] probation or parole officer.

     7 General Condition of Probation No. 12: Upon the request of
a  probation officer, submit to a search of your person, personal
property, residence or any vehicle in which you may be found  for
the presence of contraband.

     8 AS 11.41.200(a)(1) and AS 11.16.110.

     9 AS 11.41.100(a)(1)(A) and AS 11.31.100.

     10   AS 11.41.220(a)(1)(B).

     11   Roman, 570 P.2d at 1243.

12   Id. at 1242-43.

     13   590 P.2d 410 (Alaska 1979).

     14    Id. at 418.

     15   Id. at 418 & n.26.

     16   Id. at 418.

     17   Id.

     18   810 P.2d 1019 (Alaska App. 1991).

     19   Id. at 1022.

     20   Id.

     21   Id.

     22   892 P.2d 200 (Alaska App. 1995).

     23   Id. at 200.

     24   Id. at 201.

     25   Id. at 201-02.

     26   Id. at 201 (quoting Roman, 570 P.2d at 1240).

     27   Id. (quoting Roman, 570 P.2d at 1240).

     28   Id. at 200.

     29   Id. at 202.

     30   133 P.3d 684 (Alaska App. 2005).

     31   Id. at 684.

32   Id.

     33   Id.

     34   Id. at 686.

     35   Id. at 685 (internal footnotes and citations omitted).

36   151 P.3d 510 (Alaska App. 2006).

     37   Id. at 517 (citing Roman, 570 P.2d at 1243; Thomas, 133
P.3d at 685).

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