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Smith v. State (5/29/2015) ap-2455

Smith v. State (5/29/2015) ap-2455

                                                   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 @ akcourts.us
 
 



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ERIC L. SMITH,  

                                                                  Court of Appeals No. A-11390  

                                   Appellant,                   Trial Court No. 4FA-10-2580 CR  



                          v.  

                                                                             O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                           No. 2455 - May 29, 2015  



                 Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                 Fairbanks, Randy M. Olsen, Judge.  



                 Appearances:  Callie Patton Kim, Assistant Public Defender,  

                  and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                 Appellant.    Sara  E.  Simpson,  Assistant  District  Attorney,  

                 Fairbanks, and Michael C. Geraghty, Attorney General, Juneau,  

                                                                 

                  for the Appellee.  



                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                

                 District Court Judge. *  

                                               



                 Judge ALLARD.  



                 Eric  L.  Smith  pleaded  guilty  to  twelve  counts  of  possessing  child  



pornography   after   an         investigation      by    the   Alaska      State    Troopers   discovered  



pornographic images of children on his laptop computer.  Smith was sentenced to a  



    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

composite  sentence  of  46  months  of  active  imprisonment,  10  years  of  supervised  

                                                                                              



probation, and 72 years of suspended imprisonment.  



                   On appeal, Smith argues that the 72 years of suspended time and the 10  



years  of  probation  are  excessive.    Smith  also  challenges  a  number  of  his  probation  



conditions as unconstitutionally vague, overly broad, or lacking a sufficient nexus to his  



convictions.  



                   For  the  reasons  explained  here,  we  conclude  that  the  superior  court's  

                                                                                              



imposition of a 10-year probationary term was not clearly mistaken.  We also affirm the  



court's imposition of probation conditions restricting Smith's consumption of and access  

                                             



to alcohol.  



                   However, we vacate the 72 years of suspended jail time as clearly mistaken  



and  direct  the  superior  court  on  remand  to  impose  a  term  of  suspended  time  more  



appropriate  to  the  individualized  circumstances  of  Smith's  case.    We  also  vacate  a  



number of the challenged probation conditions. On remand, the court may choose to  



impose  modified  versions  of  some  of  these  conditions  consistent  with  the  guidance  



provided here.  



            Facts and proceedings  



                   In  the  course  of  an  online  investigation,  the  Alaska  State  Troopers  

                                                                                   



discovered that Eric Smith, a twenty-one-year-old soldier stationed at Fort Wainwright,  

                                                                        



was downloading child pornography from the Internet.  Trooper David Willson obtained  

                                                     



a search warrant for Smith's computer and, during the execution of the search warrant,  

                                                                                             



Smith admitted to possessing child pornography.  A forensic examination of Smith's  

                            



computer identified over thirty still and moving images of child pornography, as well as  

                                                                                                                   



files containing jokes about pedophilia.  



                                                          -  2 -                                                   2455
 


----------------------- Page 3-----------------------

                     Smith was charged with twelve counts of possessing child pornography,  

and he entered guilty pleas to all twelve counts without a plea agreement.1  



                     At  Smith's  sentencing  hearing,  Trooper  Willson   testified  that  Smith  



admitted that he "kept getting sucked into" downloading child pornography, beginning   



when he was fourteen years old.                     In his allocution, Smith said he felt compelled to look     



at child pornography because of experiences in his childhood and in Iraq - he and a  



cousin had touched each other's genitals when they were about seven years old, he had  



looked at child pornography with a friend the summer between sixth and seventh grade,  

                                                                                     



and  he  had  seen  an  Iraqi  man  rape  a  young  boy  while  on  patrol  during  military  



deployment to Iraq.  Smith said he viewed child pornography as a way to punish himself.  



He admitted that he drank alcohol whenever he looked at pornography.  



                     Smith told the court that he accepted responsibility for what he had done,  



that he was ashamed, and that he wanted and needed treatment.  Smith also told the court  

        



that he had already  undergone assessment for sex-offender treatment and found the  

                                 



process helpful.  



                     Smith submitted the sex-offender risk assessment, which was prepared by  

                                                                                                    



a  licensed  social  worker,  Moreen  Fried,  to  the  prosecution  and  the  court.                                         In  the  

                                                                                                                             



assessment, Fried indicated that Smith had actively participated in the assessment process  



and appeared amenable to sex-offender treatment and community supervision.  



                     Smith's presentence report noted that Smith had no prior juvenile or adult  

                                                                                           



criminal history.  The report concluded, however, that Smith had "a high level of sexual  

                                                                                     



deviancy" that put him at "high risk" of re-offending if he did not receive treatment.  



     1    See AS 11.61.127(a).  



                                                                -  3 -                                                        2455

 


----------------------- Page 4-----------------------

                     As a first felony offender, Smith faced a presumptive range of 2 to 12 years   

on each of the twelve convictions.2                                                                      

                                                        The judge was also required to impose at least two  



                                                                                                                     

years of suspended time on each conviction as well as a probationary term of at least 5  



         3  

years.     Under  former  AS  12.55.127,  the  judge  had  the  discretion  to  impose  the  



                                                  

individual  sentences  on  each  conviction  concurrently,  consecutively,  or  partially  



                      4  

consecutively.   



                                                                                                        

                     At the sentencing hearing, Smith's attorney requested that the court impose  



                                                                                                                          

the lowest sentence permissible within the applicable presumptive sentencing range -  



                                                                                    

4  years  with  2  years  suspended  on  each  count,  to  be  run  concurrently,  for  a  total  



composite sentence of 2 years of active jail time to serve and an additional 2 years of  



                                                                                                                             

suspended jail time - i.e., 2 years of suspended jail time that could be imposed later if  



Smith violated any of the terms of his probation.  Smith's attorney also requested that the  



court impose the minimum 5 years of probation.  



                     The  prosecutor  requested  that  the  court  impose  8  years  with  3  years  



suspended on each count and that 3 months of the active imprisonment on each count  

                                



and  all  of  the  suspended  time  on  each  count  be  run  consecutively,  for  a  composite  

                                         



sentence of 7 years 9 months of active jail time to serve and 36 years of suspended jail  

                                                                                                             



time.  The prosecutor requested that Smith serve a 10-year probationary term.  



                     Superior Court Judge Randy M. Olsen sentenced Smith.  In his sentencing  

                                                                                                             



remarks, Judge Olsen indicated that his primary goal in fashioning Smith's sentence was  

                                                                                                      



to send a message to others that possessing child pornography would not be treated  

                                   



     2    See AS 12.55.125(i)(4)(A).  



     3    See AS 12.55.125(o).  



     4    See former AS 12.55.127(b) (2012).  In 2013 the Alaska legislature amended AS 12- 



.55.127 to require partially consecutive terms of active imprisonment for each additional  

conviction for possession of child pornography.  See ch. 43,  21, SLA 2013.  



                                                               -  4 -                                                        2455
 


----------------------- Page 5-----------------------

leniently.  The judge found that the images on Smith's computer were "reprehensible"  



and that Smith was "heavily involved" in child pornography and needed "a whole lot of  



professional help ... to stop."  



                    The  judge  also  concluded,  however,  that  "throwing  [Smith]  in  jail  and  



throwing away the key would not accomplish any more than several years in jail."  He  

                                              



noted that Smith was young and had admitted responsibility for his crimes and pleaded  

                                 



guilty  without  any  promises  or  a  plea  agreement.    The  judge  also  found  that  Smith  



appeared genuinely interested in getting treatment, noting that "maybe the best thing for  

                                                                                                        



[Smith] was to be caught" because now he could "get the help that he needs."  



                    Judge Olsen ultimately sentenced Smith to 8 years with 6 years suspended  



on each count and 10 years of probation. The judge imposed 2 months of the active term  

                                                             



of imprisonment on each count consecutively, with the rest of the active time to run  

                                                                               



concurrently,  for  a  total  active  term  of  imprisonment  of  46  months(3  years  and  10  

                                                                                             



months) to serve.  The judge also imposed all 6 years of suspended time on each count  

                                                                                                            



consecutively, for a total suspended term of 72 years.  

                       



                    In explaining his decision to impose 72 years of suspended time, Judge  

                                                                                                              



Olsen commented that a lengthy suspended sentence would ensure that Smith would  



serve "many years in jail" if he failed at the rehabilitation opportunities made available  

                                                                                      



to him.  Judge Olsen also stated that the primary goal of deterring others would be met  

             



if  the  sentence  was  "broadcast  somehow  over  the  [I]nternet  or  to  the  rest  of  the  



community[.]"  



                    This appeal followed.  



                                                            -  5 -                                                     2455

 


----------------------- Page 6-----------------------

             Why we   conclude that the suspended portion of Smith's sentence is  

             excessive  



                     We  review   a  criminal  sentence  for  excessiveness  under  the  "clearly  



                                               5  

mistaken" standard of review.                                                    

                                                 This is a deferential standard of review that requires the  



                                          

appellate court to conduct an independent review of the sentencing record but also gives  



                                                                                  6  

                                                                                            

considerable leeway to individual sentencing judges.                                 As the supreme court has noted,  



the clearly mistaken test is founded on two concepts:  "first, that reasonable judges,  



confronted with identical facts, can and will differ on what constitutes an appropriate  



                                                    

sentence; ... second, that society is willing to accept these sentencing discrepancies, so  



                                                                      

long as a judge's sentencing decision falls within 'a permissible range of reasonable  

sentences.'"7  



                     When we review a sentence for excessiveness, we consider the sentence in  



its  entirety,  including  all  suspended  time  -  although  the  suspended  portion  of  the  



                                                                                                                                   8  

sentence is typically weighed less heavily because it is not as harsh as time to serve.    



                                                        

                     In past cases, we have upheld substantial terms of suspended time, although  



                                                                                                       9  

                                                                                                                       

none as substantial as the 72-year suspended term imposed here.                                            Those cases have  



     5    McClain v. State , 519 P.2d 811, 813 (Alaska 1974); see Erickson v. State , 950 P.2d   



580, 586 (Alaska App.1997) (quoting State v. Wentz, 805 P.2d 962, 965 (Alaska 1991)).  



     6  

                                                         

          See Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973); State v. Chaney, 477 P.2d  

441, 444 (Alaska 1970); Bossie v. State , 835 P.2d 1257, 1261 (Alaska App. 1992).  



     7    State v. Korkow , 314 P.3d 560, 562 (Alaska 2013) (quoting McClain , 519 P.2d at 813)  



(internal quotation marks omitted).  



     8  

                                                                                       

          Heavyrunner v. State , 172 P.3d 819, 821 (Alaska App. 2007); Jimmy v. State , 689  

P.2d 504, 505 (Alaska App. 1984); see also Karr v. State , 686 P.2d 1192, 1194 (Alaska  

1984); Leuch v. State , 633 P.2d 1006, 1010 (Alaska 1981); Andrews v. State , 552 P.2d 150,  

154 n.11(Alaska 1976).  



     9  

                                                                                                                 

          See, e.g., Heavyrunner, 172 P.3d at 821 (27 years suspended and 8 years to serve);  

                                                                                                                   (continued...)  



                                                                -  6 -                                                        2455  


----------------------- Page 7-----------------------

involved findings by the sentencing court that the defendant's conduct was especially  



serious,  that  the  defendant  was  particularly  dangerous,  or  that  the  defendant  had  

distinctly poor prospects for rehabilitation.10  



                     Here, in contrast, the sentencing court found that Smith's conduct was  



"extremely  typical"  for  this  type  of  offense.    The  court  also  found  reasons  to  be  



cautiously optimistic about Smith's potential for rehabilitation.  The court commented  



that "a lengthy suspended sentence"  would act as an incentive for Smith and would  

                                                           



ensure  that  he  served  "many  years  in  jail"  if  he  failed  at  the  opportunities  for  



rehabilitation  made  available  to  him.                      But  the  court  did  not  find  -  nor  does  the  

                                                                                                                        



sentencing record otherwise show - that 72 years of suspended time was the appropriate  

                                                                    



period of time needed to motivate Smith or to protect the public if Smith were to violate  

                                                                                                                        



any  of the terms of his probation.  Instead, the record demonstrates that the court's  

        



primary  purpose  in  imposing  72  years  of  suspended  time  was  to  deter  others  by  

              



"broadcast[ing] over the [I]nternet" the heavy penalty for possessing child pornography.  

                                                                                        



                     Deterrence  of  others  and  community   condemnation  are  appropriate  

                                                                                    

sentencing goals that courts must consider in every case.11  

                                                                                           But the importance of these  



goals in an individual case must be determined in relationship to the specific facts of that  



particular case and assessed within the context already provided by the presumptive  



     9    (...continued)  



Reandeau v. State , 2014 WL 1779312, at *2 (Alaska App. Apr. 30, 2014) (unpublished) (25           

years suspended and 27 - years to serve);                    see generally Williams v. State , 859 P.2d 720, 723  

(Alaska App. 1993) (noting that the primary purpose of suspended time is "to serve as a  

deterrent       in    the    event     that     [a   defendant's]         efforts      toward       rehabilitation        prove[]  

unsuccessful").  



     10  

                                                       

          See,  e.g.,  Heavyrunner ,  172  P.3d  at  821  (defendant  "extremely  dangerous"  and  

                                                                        

rehabilitative prospects "not good"); Reandeau , 2014 WL 1779312 at *2 (defendant had a  

serious prior sexual felony).  



     11   AS 12.55.005.  



                                                               -  7 -                                                        2455  


----------------------- Page 8-----------------------

ranges for that offense.  As we have previously declared, "any sentencing decision must  



ultimately be justified on the particular facts of a defendant's offense and background,  

                     



evaluated in light of the sentencing criteria codified in AS 12.55.005 and the range of  

                                                                                                             

sentences authorized by the legislature."12  

                                                                                          

                                                             Here, however, the sentencing judge made no  



                                                 

findings to justify such a lengthy suspended term based on the individual circumstances  



of Smith's case.  



                   We recognize that the judge may have intended the 72 years of suspended  



time to serve a primarily symbolic role in Smith's sentence.  We also recognize that,  



depending on how he performs on probation, Smith may never serve any of this time, or  

                                                                                                                    



he may serve only a small portion of it.  But although suspended time is weighed less  

                                



heavily than active jail time partly for that reason, it still remains a significant part of a  

                                                                              



defendant's  sentence  with  real-life  consequences  and  still  requires  individualized  



consideration and scrutiny.  



                   We note that, under our caselaw, probation is a contract that a defendant is  

                                                       

entitled  to  refuse  and  to  "insist  upon  a  normal  sentence."13  

                                                                                                It  is  implicit  in  this  



commonlaw rule that a correspondence must exist - although not necessarily a precise  



      14  

one                                                                

         - between the length of a suspended sentence and the nature of the particular  



offender and offense.  That correspondence is lacking in this case.  We think it beyond  



                                                                                                      15 

                                                                                        

dispute that if Smith were permitted to reject probation in this case,                                   the sentencing  



     12   Phelps v. State , 236 P.3d 381, 382 (Alaska App. 2010).  



     13   State v. Auliye, 57 P.3d 711, 717 (Alaska App. 2002).  



     14   See State v. Henry , 240 P.3d 846, 848-49 (Alaska App. 2008) (if a defendant rejects  



probation, "the sentencing judge must not automatically sentence the defendant to all of the  

                                                                                        

remaining suspended jail time; rather the sentencing judge must apply the Chaney sentencing  

criteria to determine an appropriate term of imprisonment").  



     15   Whether  AS  12.55.125(o)  prevents  a  defendant  convicted  of  a  sex  offense  from  



                                                                                                           (continued...)  

                                                           -  8 -                                                     2455  


----------------------- Page 9-----------------------

record would not justify the imposition of a term of incarceration more than eighteen   



times Smith's active term of imprisonment.  



                   We  therefore  conclude  that  the  72  years  of  suspended  time  is  clearly  



mistaken  and  outside  the  permissible  range  of  reasonable  sentences  for  this  case.  



Accordingly, we vacate this portion of Smith's sentence and remand his case to the  



superior  court  for  imposition  of  a  suspended  sentence  more  consonant  with  the  

                                               



individualized circumstances of Smith's case.  



            Why we conclude that 10 years of probation is not clearly mistaken  



                   Smith also argues that the 10 years of probation imposed by the sentencing  

                                                                          



court was clearly mistaken, pointing out that it is double the 5-year minimum probation  

                                                                                                  

term required by Alaska statute.16  

                                                   Smith argues that the 10-year probationary term is  



excessive because it is unnecessary to achieve the sentencing goals in his case.  



                   We conclude that the imposition of a 10-year probationary term was not  

                                                                                                                  

clearly mistaken in this case.17  

                                              At Smith's sentencing, the court found that Smith was  



                                              

"addicted[,] heavily involved" with child pornography, and that he needed "a whole lot  



                                                                   

of professional help."  The presentence report similarly commented on Smith's "serious  



                                                                      

compulsion"  to  view  child  pornography  and  the  "high  level  of  sexual  deviancy"  



                                                                                                

exhibited by his possession of pornography involving very young children.  And Smith  



himself  admitted  that  he  "kept  getting  sucked  into"  viewing  child  pornography,  



beginning when he was a young teen.  



     15   (...continued)  



rejecting probation is an issue currently pending before this Court.  



     16   See AS 12.55.125(o).  



     17   See McClain v. State, 519 P.2d 811, 813 (Alaska 1974).  



                                                           -  9 -                                                    2455  


----------------------- Page 10-----------------------

                     The  court  concluded,  based  on  this  record,  that  a  lengthy  period  of  



probation was necessary to ensure Smith's rehabilitation and to protect the public from  

                                                                      



his compulsive criminal behavior. We find this conclusion well-supported by the record  

                                                                                              

and not clearly mistaken.18  



              Why we uphold Smith's probation conditions related to alcohol  



                     A sentencing judge has broad authority to fashion conditions of probation,  

                                                                                                                       



but  under  Roman  v.  State ,  these  conditions  must  be  "reasonably  related  to  the  



rehabilitation of the offender and the protection of the public and must not be unduly  

                                                        

restrictive of liberty." 19  



                     On appeal, Smith challenges the conditions of his probation that prohibit  

                                         



him from possessing or consuming alcohol or entering facilities where alcohol is served,  

                                                                          



                                                                       20  

and that subject him to searches for alcohol.  

                                                                                                                             

                                                                            He argues that the sentencing court did  



                                                                                                          

not make the findings necessary to justify these conditions under Roman .  



                                                   

                     We find no merit to this claim.  At the sentencing hearing, Smith admitted  



                             

he always drank alcohol when he viewed pornography.  And when Smith was asked  



                                                                                         

during his sex-offender assessment what conditions of probation supervision would be  



      18   Id.  



      19   Roman v. State , 570 P.2d 1235, 1240 (Alaska 1977); see Dawson v. State , 894 P.2d   



672, 680 (Alaska App. 1995); Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985).  



     20    See General Condition No. 9 (prohibiting consumption of intoxicating liquor); Special  



Condition No. 15 (prohibiting consumption or possession of alcohol or illegal substances and  

requiring  Smith  to  inform  his  probation  officer  of  any  prescribed  medications);  Special  

Condition  No.  16  (prohibiting  Smith  from  entering  bars  or  other  establishments  whose  

primary   function  is  to  serve  alcohol  or  illegal  substances);  Special  Condition  No.  17  

(requiring  Smith  to  submit  to  a  chemical  test  for  alcohol  or  drugs  at  the  request  of  his  

                                

probation officer, a law enforcement officer, or treatment provider); Special Conditions Nos.   

                                                                       

12 and 18 (requiring in part that Smith submit to searches of his person, property, residence,  

and vehicle for alcohol and drugs).  

                                                                -  10 -                                                           2455  

                                                                    


----------------------- Page 11-----------------------

appropriate in his case, he stated, "no drinking, no frequenting bars and no computer  



access."  Based on this record, the sentencing court could reasonably find that limiting  

                                                                              



Smith's access to alcohol was reasonably related to his rehabilitation and protection of  

                                                                                   



the public.  We therefore affirm the alcohol-related provisions in General Condition No.  

                                      



9 and Special Condition Nos. 12, 15, 16, 17, and 18.  



             Why we vacate the other probation conditions Smith challenges  



                    (1) The illegal drugs conditions  

                          



                    Smith challenges the conditions of his probation requiring him to submit  

                               



to chemical tests for drugs and to searches for drugs and drug paraphernalia.  The State  

                                                                              



concedes that the sentencing record fails to establish that Smith has a history of drug use  

                                                      



or that any nexus exists between drug use and Smith's offenses.  Having reviewed the  

sentencing  record, we find the State's concessions well-founded.21  

                                                                                                       We accordingly  



                                                                              

vacate the requirement in Special Condition No. 17 that Smith submit to chemical tests  



                                                                                                                 

for illegal drugs and the requirement in Special Condition Nos. 12 and 18 that Smith  



submit to searches for illegal drugs and drug paraphernalia.  



                    (2) The"sexually explicit material" conditions  

                          



                                                                                                 

                    The sentencing court imposed several conditions of probation prohibiting  



Smith  from  possessing  "sexually  explicit  material"  and  requiring  him  to  submit  to  



     21   See   Marks  v.  State,  496  P.2d  66,  67-68  (Alaska  1972)  (an  appellate  court  must  



independently evaluate any concession of error by the State in a criminal case).  

                                                           -   11 -                                                     2455  


----------------------- Page 12-----------------------

searches for such material.22  Smith argues that these conditions are impermissibly vague         



and overbroad.  



                    The State concedes that these conditions are invalid under our decision in  

                                                                

Diorec v. State .23                                

                            In Diorec , the defendant was convicted of sexual exploitation of a  

minor for surreptitiously filming his stepdaughter in her bedroom.24  

                                                                                                        The sentencing  



court imposed a condition of probation prohibiting Diorec from possessing "sexually  

                          

explicit material" including "pornography."25  We agreed with the superior court that this  



condition  was  generally  related  to  Diorec's  offense  and  to  the  sentencing  goals  of  

rehabilitation and protection of the public.26  

                                                                   But we agreed with Diorec that, without  



further definition of what materials were encompassed within the meaning of the terms  

                                                                                                 



"sexually explicit material" and "pornography," the condition provided constitutionally  

                                                                             

inadequate notice of what conduct was prohibited.27  



                    The same is true here.  We therefore vacate Special Condition No. 9 and the  

                                                                                                                   



provisions in Special Condition Nos. 12 and 18 requiring Smith to submit to searches for  



such material.  



     22   See  Special  Condition  No.  9  (restricting  possession  of  sexually  explicit  material  



without prior written permission of the probation office and sex-offender-treatment provider,  

"including but not limited to: books, movies, videos, magazines, printed matter, computer  

disks or files, any encryption devices or computer mechanisms or other electronic devices  

that can hold this type of visual or audio material..."); Special Condition Nos. 12 and 18  

(requiring the probationer to submit to searches for such sexually explicit material).  



     23   295 P.3d 409 (Alaska App. 2013).  



     24   Id. at 411.  



     25   Id. at 416.  



     26   Id.   



     27   Id.  at 417; see Johnston v. State , 2013 WL 4780812, at *3 (Alaska App. Sept. 4, 2013)         



(unpublished).  

                                                           -   12 -                                                    2455  


----------------------- Page 13-----------------------

                      The sentencing court may revise these conditions on remand.  Because   



probation conditions limiting Smith's access to sexually explicit material will potentially   



infringe  his  First  Amendment  rights,  the  court  must  apply  special  scrutiny  to  the  



conditions  and  "affirmatively  consider  and  have  good  reason  for  rejecting  any  less  

                                                                            

restrictive alternatives which might be available."28  



                             

                      (3) The "stimulus" conditions  



                      Special Probation Condition No. 10 prohibits Smith from possessing any  

                                                                              



material that "acts as a stimulus for his abusive cycle" or that "acts as a stimulus to  

                                                                                                            



arouse him in an abusive fashion."  Smith argues that this condition is also impermissibly  

                                                                                                              



vague and overbroad.  



                      We recently vacated an identical probation condition in  Whiting v. State  



because the condition did not adequately define what materials "act as a stimulus" to the  

                                                                                                                       

probationer's "abusive cycle" or arouse the probationer in an "abusive fashion."29  

                                                                                                                                           As  



we  explained  in  Whiting,  a  condition  that  prohibits  a  probationer  from  possessing  



                                                                                                 

material that "acts as a stimulus" must be based on  the  sentencing record and must  



                                                                                            

identify particular types of materials that have acted as a "stimulus" for the defendant's  

criminal conduct in the past or are likely to do so in the future.30  



                      As the State concedes, Special Condition No. 10 suffers from the same  



deficiencies we identified in Whiting.  We accordingly vacate the condition.  On remand,  



                                                                                           

the court shall consider more specific alternatives that are supported by the record.  To  



      28   Johnston , 2013 WL 4780812, at *2; see Peratrovich v. State , 903 P.2d 1071, 1079  



(Alaska  App.  1995)  (probation  conditions  that  restrict  constitutional  rights  may  only  be  

                                                                                 

imposed after trial court "affirmatively consider[s] and [has] good reason for rejecting lesser  

restrictions...").  



      29  

                                                                                                  

            Whiting v. State, 2014 WL 706268, at *2 (Alaska App. Feb. 19, 2014) (unpublished).  



      30   Id.  



                                                                   -   13 -                                                            2455  


----------------------- Page 14-----------------------

the extent those alternatives potentially infringe Smith's First Amendment rights, the   



court  must  apply  special  scrutiny  and  adopt  less  restrictive  alternatives   if  they  are  

available.31  



                      (4) The "significant relationship" or "closely affiliated" condition  

                            



                      Special Condition No. 25 requires Smith, after consulting with his treatment  



provider and probation officer, to "inform all persons with whom he has a significant  



relationship, or with whom he is closely affiliated, of [his] sex offending history."  Smith  

                                                                                                                                   



argues that this condition is unconstitutionally vague.  



                      In Whiting we vacated an identical probation condition, concluding that the  

                                              



terms  "significant  relationship"  and  "closely  affiliated"  provided  constitutionally  



inadequate  notice  of  when  an  association  with  another  person  becomes  sufficiently  

                    



"close" or "significant" that a probationer will be subject to prosecution for failing to  

                                                                      

disclose  his  criminal  history  to  the  person.32  

                                                                                We  also  noted  that,  because  social  



                                               

relationships  are  not  static,  the  condition  might  require  a  probationer  to  repeatedly  



                                                                                                                                         33  

                                                                

consult with his treatment provider and probation officer to ensure he is not violating it. 



                                                        

                      We conclude, as the State concedes, that our reasoning in  Whiting applies  



equally here.  We therefore vacate Special Condition No. 25.  The court may reimpose  



this condition on remand with additional clarification of the terms "closely affiliated" and  



"significant relationship."  



     31    Johnston , 2013 WL 4780812, at *2; see  Peratrovich , 903 P.2d at 1079.  



     32    Whiting, 2014 WL 706268, at *2-3.  



     33    Id. at *3.  



                                                                 - 14 -                                                            2455  


----------------------- Page 15-----------------------

                           

                    (5) The limitation on driving privileges  



                    Special Condition No. 11 requires Smith to "observe limitations on driving  

                                                                         



privileges as established by his probation officer."  Smith argues that this condition is  

                                                 



unduly restrictive of his liberty and not reasonably related to his rehabilitation.  



                    As  the  State  concedes,  nothing  in  the  sentencing  record  suggests  that  

                                                                                                    



Smith's criminal conduct involved driving or that his rehabilitation would be advanced  

                                                                  



by  limitations  on  his  driving  privileges.    We  therefore  agree  with  Smith  that  this  

      



condition is not reasonably related to his rehabilitation or to protection of the public.  

                                                                                                                   



Accordingly, we vacate Special Condition No. 11.  



             Conclusion  



                    We AFFIRM Smith's 10-year probation sentence and the alcohol-related  

                                          



provisions in General Condition No. 9 and Special Condition Nos. 12, 15, 16, 17, and  



18.  We VACATE the drug-related provisions in Special Condition Nos. 12, 17, and 18.  

                                                                                                                         



We  also  VACATE  Special  Condition  No.  11.    We  VACATE  and  REMAND  for  

                                                                     



proceedings consistent with this opinion Smith's 72-year suspended sentence, Special  



Condition Nos. 9, 10, and 25, and those portions of Special Condition Nos. 12 and 18  

                                                                                                                     



that relate to sexually explicit material.  



                                                             -   15 -                                                      2455

 

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