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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: firstname.lastname@example.org 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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