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303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL BOLES,
Appellant, Court of Appeals No. A-
10030
v. Trial Court No. 1SI-
07-240 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2218 June 12,
2009
Appeal from the Superior Court, First Judi
cial District, Sitka, Donald D. Hopwood,
Judge.
Appearances: Louis James Menendez, Juneau,
for the Appellant. Diane L. Wendlandt,
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 Bolger, Judges.
MANNHEIMER, Judge.
Michael Boles pleaded guilty to two counts of attempted
second-degree sexual abuse of a minor for engaging in sexual
contact with two victims, each under the age of thirteen. As one
of Boless conditions of probation, the superior court ordered him
to submit to warrantless searches for firearms. In addition, the
superior court concluded that Boles would have to register as a
sex offender for the rest of his life. Boles now challenges
these two decisions.
The challenged condition of probation
Boles claims that, because his crimes did not
involve a weapon of any type, it was improper for the
superior court to require him to submit to warrantless
searches for firearms. The State concedes that the
superior court committed error, but this Court has an
independent duty to evaluate whether the States
concession of error is well-founded.1
Under Alaska law, it is improper for a
sentencing court to impose a condition of probation
that is not reasonably related to the rehabilitation of
the offender and the protection of the public.
Miyasato v. | State, 892 P.2d 200, 201 (Alaska App. 1995 | ) (quoting Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977 | ) | ). |
| This Court recently applied this rule of law in Dayton v. State, 120 P.3d 1073 (Alaska App. 2005 | ). In Dayton, the defendant was indicted for first-and second-degree sexual assault, but negotiated a plea bargain with the State allowing him to plead no contest to third-degree assault. Id. at 1076. As a condition of probation, the superior court required the defendant to submit to warrantless searches for weapons. Id. at 1084. We reversed this condition of probation because [t]he record contain[ed] no indication that Dayton has ever used or possessed weapons in violation of the law, or that he has used or carried weapons during the commission of a crime. Id. at 1085. | ||
| In the present case, Boles was convicted of two counts of attempted sexual abuse of a minor, and neither offense involved a weapon of any type. Thus, Boless case appears to be analogous to Dayton. We conclude that the States concession of error on this point is well-founded, and we therefore vacate the challenged condition of probation. | |||
The issue of how long Boles must
register as a sex offender
Boless remaining claim is that the superior
court was mistaken when it ruled that Boles would have
to register as a sex offender for life. Boles contends
that under the pertinent statute, AS 12.63.020, he need
only register for 15 years.
AS 12.63.020(a)(1)(B) declares that a
defendant convicted of two or more sex offenses must
register for life. Boles pleaded guilty to two counts
of attempted second-degree sexual abuse of a minor,
each count involving a separate victim, and the
superior court concluded that Boles was required to
register for life. Boles argues that the superior
court misinterpreted the statute: he contends that the
life-registration requirement applies only to
defendants who commit a second sex offense after having
been convicted of an earlier sex offense.
Compare State v. Carlson, 560 P.2d 26, 30
(Alaska 1977), in which the Alaska Supreme Court
interpreted our former habitual criminal sentencing
statutes to require proof that the defendant was
sentenced for the prior offense before the defendant
committed the present offense; Gonzales v. State, 582
P.2d 630, 636 (Alaska 1978), in which the supreme court
applied the same rule of construction to the sentencing
provisions imposing enhanced punishment for repeat drug
offenders; and State v. Rastopsoff, 659 P.2d 630, 640-
41 (Alaska App. 1983), in which this Court held that,
for purposes of determining a defendants status as a
first, second, or third felony offender under Alaskas
presumptive sentencing laws, a defendant is not
previously convicted of a felony until the defendant is
sentenced for that felony.
We need not resolve (indeed, we can not
resolve) this issue of statutory interpretation
because the superior court did not rule that Boles must
register as a sex offender for life. Rather, the
superior court merely predicted that Boles would have
to register for life.
We have repeatedly held that the registration
and reporting requirements imposed by Alaskas Sex
Offender Registration Act are not part of a defendants
sentence.2 The registration and reporting requirements
are automatically triggered when a defendant is
convicted of an offense covered by the Act.3 A
sentencing court has no authority to exempt a defendant
from sex offender registration and, likewise, a
sentencing court has no authority to order a defendant
to register as a sex offender if the defendants offense
is not covered by the Act.4 By the same token, a
sentencing court has no authority to order a defendant
to register as a sex offender for life if, under
AS 12.63.020, the defendant is only required to
register for 15 years.
The Department of Public Safety is entrusted
with the administration of the Sex Offender
Registration Act.5 One of the Departments principal
duties is to inform defendants of the duration of
[their] duty to register and to furnish defendants with
an explanation of the annual or quarterly schedule by
which [they] must submit registration verification
information to the department for the duration of
[their] duty to register.6 Thus, it is the Department
of Public Safety that must decide, at least in the
first instance, how AS 12.63.020 applies to defendants
in Boless situation i.e., whether Boles is required to
register for 15 years or for life.
We are not criticizing the superior court for
attempting to construe AS 12.63.020, or for expressing
an opinion on how this statute would apply to Boles.
Indeed, under Alaska Criminal Rule 32(d), whenever a
defendant is convicted of an offense covered by the Sex
Offender Registration Act, the written judgement must
contain a description of the defendants obligations
under the Act including the period of registration
required under [the Act] if the required period can be
determined by the [sentencing] court.
Thus, the superior court was complying with
its duty under Criminal Rule 32(d) when, in its remarks
at the sentencing hearing and later in its written
judgement, the court declared that Boles would be
required to register for life. But this was not a
ruling. That is, the superior court did not formally
adjudicate Boless obligation under the statute.
Indeed, as we have explained, the superior court could
not formally adjudicate this issue in the context of
Boless sentencing. Rather, the court merely offered
its prediction concerning how the statute would apply
to Boles.
As we noted above, the Department of Public
Safety must decide how AS 12.63.020 applies to
defendants in Boless situation. And, in making its
decision, the Department is not bound by the position
that the superior court expressed on this issue at
Boless sentencing.
If the Department concludes that AS 12.63.020
requires Boles to register as a sex offender for life,
Boles can file an administrative appeal in the superior
court to challenge the Departments decision.7 At that
point, the superior court would have the authority to
review the Departments interpretation of the statute
and issue a ruling that would formally determine Boless
legal obligations under the statute. And if either
Boles or the State is dissatisfied with the superior
courts ruling, that ruling can be appealed to the
Alaska Supreme Court.8
But as things now stand, this question of
statutory interpretation is not ripe for review. As we
have explained, the superior court has not ruled on
this issue because, in the context of Boless criminal
case, the superior court lacked subject-matter
jurisdiction to decide this issue (in the sense of
issuing a decision that would bind the State and
Boles). All that has happened, as a legal matter, is
that the superior court has made its best prediction as
to how the Department of Public Safety will interpret
and apply AS 12.63.020 to a defendant in Boless
situation.
Conclusion
With regard to the condition of probation
that requires Boles to submit to warrantless searches
for weapons, that condition is VACATED and the superior
court is directed to amend the judgement accordingly.
With regard to the length of time that Boles
must register as a sex offender, that issue is not
properly before us. The superior courts conclusion
regarding this matter was not a ruling in a strict
legal sense, and thus there is nothing for this Court
to review.
We do not know if the Department of Public
Safety has issued a decision on this matter in Boless
case. We are concerned by the possibility that the
Department has already issued its decision, and that
Boles neglected to pursue an administrative appeal of
that decision because he believed that he was already
litigating the same issue in this criminal appeal. If
that is the case, we would expect the superior court to
apply the doctrine of equitable tolling to relax Boless
normal filing deadline for initiating an administrative
appeal of the Departments decision. See Beegan v.
Alaska Department of Transportation & Public
Facilities, 195 P.3d 134, 141-42 (Alaska 2008); Solomon
v. Interior Regional Housing Authority, 140 P.3d 882,
884-85 (Alaska 2006); Fred Meyer of Alaska v. Bailey,
100 P.3d 881, 886-87 (Alaska 2004).
_______________________________
1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that when the government concedes error in a criminal
appeal, the appellate court has an obligation to independently
review the [lower court] proceedings ... to insure that the
[confession of] error ... is supported by the record on appeal
and has legal foundation).
2 See Schwab v. State, 198 P.3d 566, 567 (Alaska App. 2008);
Herreid v. State, 69 P.3d 507, 508 (Alaska App. 2003);
Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999).
3 See AS 12.63.010(a) & AS 12.63.100(3), (5), & (6).
4 Herreid, 69 P.3d at 508.
5 See AS 12.63.020(b) & AS 12.63.100(4).
6 13 AAC 09.030(a).
7 See Schwab v. State, 198 P.3d at 567 (Challenges to the
decisions of administrative agencies must be pursued by
filing a civil action or appeal in the superior court.).
8 See Holden v. State, 190 P.3d 725, 729 (Alaska App. 2008)
(Holden is appealing the final decision rendered by the
superior court in an administrative appeal. ... [S]uch
appeals must be taken to the supreme court.).
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