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Boles v. State (6/12/2009) ap-2218

Boles v. State (6/12/2009) ap-2218

                             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


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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