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Beasley v. State (12/23/2015) ap-2482

Beasley v. State (12/23/2015) ap-2482

                                                               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  



RONNIE J. BEASLEY II,  

                                                                                 Court of Appeals No. A-11698  

                                           Appellant,                          Trial Court No. 3PA-11-3312 CR  



                                v.  

                                                                                              O P I N I O N  

STATE OF ALASKA,  



                                           Appellee.                           No. 2482 - December 23, 2015  



                                           

                     Appeal from the Superior Court, Third Judicial District, Palmer,  

                                    

                     Gregory Heath, Judge.  



                                              

                     Appearances:   Megan Webb, Assistant Public Defender, and  

                                                                                                       

                     Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                        

                     Melissa   J.   Wininger-Howard,   Assistant   District   Attorney,  

                                                                                       

                     Palmer, and Craig W. Richards, Attorney General, Juneau, for  

                     the Appellee.  



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

                                                                  

                      Superior Court Judge. *  

                                                           



                     Judge SUDDOCK.  



                     Pursuant to a plea agreement for open sentencing on a single count of                                              



possession of         child pornography, Ronnie J. Beasley II received a sentence of 6 years with                                    



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



Constitution and Administrative Rule 24(d).  


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

3 years suspended.  He now contends that as a youthful offender with no prior record,  

                                                                                                     



a history of post-arrest cooperation, and an endorsement of good rehabilitative prospects  

                                                                                                                       



in his presentence report, he merited a statutory minimum sentence of 4 years with 2  

                                                                                                                                   



years suspended.  We conclude that Beasley's sentence was within the broad discretion  

                                                                                                                      



of the trial court. But in light of the State's concession that five probation conditions are  

                                                                                                                                 



not justified by the record as it currently stands, we remand for further proceedings as  

                                                                                              



to all the conditions of probation imposed by the judge.  

                                                                             



          Background facts  

                               



                     In  May  of  2011  a  state  trooper  initiated  an  investigation  into  internet  

                                                                                                                         



distribution of child pornography.  The investigation ultimately led to Beasley.  When  

                                                                                   



interviewed by a state trooper, Beasley initially denied using file sharing software, but  

                                                                                                     



he later admitted using it to download child pornography.  

                                                                     



                     Troopers then executed a search warrant on Beasley's residence.   The  

                                                                                                                              



troopers seized two computers. A forensic examination of Beasley's computer revealed  

                                                                                                                        



forty-twovideo files and twenty-onestill images depictingchildpornography. Onevideo  

                                                                                                                             



portrayed penis-to-anus penetration ofan infant. Beasley was subsequently charged with  

                                                                                                                               



one  count  of  possessing  child  pornography  and  one  count  of  distributing  child  

                                                                                                                            



pornography.  



                     Beasley pleaded guilty to the possession charge pursuant to an agreement  

                                                                                                                     



for dismissal of the distributing charge with open sentencing by the court. The State did  

                                                                                                                                



not allege aggravating factors, nor did Beasley allege mitigators.  

                                                                                    



                     The presentence report revealed that Beasley, age twenty-four, had no  

                                                                                                                                 



juvenile history of offenses, no prior adult criminal record, and no traffic violations. And  

                                                                                                                               



while incarcerated he had no disciplinary infractions and worked as a janitor. During a  

                                                                                                                                   



presentence interview Beasley disclosed that he began viewing adult pornography at age  

                                                                                                                                



                                                               - 2 -                                                          2482
  


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

fifteen, and he then progressed to child pornography via comics and drawings.                                                                                                                       He  



denied sexual attraction to children in daily life but admitted that he fantasizes about                                                                                                       



children.   He expressed confusion and dismay about his pornography addiction, and he                                                                                                                  



statedthat              hewelcomedcounseling                                      andtreatment. Thepresentencereportrecommended                                             



a statutory minimum sentence of 4 years with 2 years suspended.                                                                 



                               Although   possession   of   child   pornography   is   a   class   C   felony,   its  



punishment differs from a typical class C felony offense.                                                                               The maximum possible term                                 



of imprisonment for possession of child pornography is 99 years, and the presumptive                                                                                           



                                                                                                                  1  

range for a first-felony offender is 2 to 12 years.                                                                                                                                  

                                                                                                                       The court is also required to impose  



                                                                                                                                                                                                   2  

                                                                                                                                                                                    

at least 2 years of suspended time as well as a term of probation of at least 5 years. 



                                                                                                                                                                                                       

                               At the sentencing hearing, Beasley's counsel told the judge that he had no  



                                                                                                                                                                               

objection to the presentence report beyond a request to narrow a polygraph requirement,  



                                                                                                                                                                                   

which the judge denied. The judge sentenced Beasley to 6 years with 3 years suspended,  



                                                                                                                                                                                          

and  5  years  of  probation.                                          The  presentence  report  recommended  twelve  general  



                                                                                                                                                                                                   

conditions and twenty-two special conditions of probation, collectively comprising four  



                                                                                                                                                                                     

pages  of  single-spaced  paragraphs.                                                      The  court  adopted  all  the  proposed  probation  



                                              

conditions without discussion.  



                                                                                      

                The sentence was not clearly mistaken  



                                                                                                                                                                      

                                We review excessive sentence claims under a deferential clearly-mistaken  



                      3  

standard.                                                                                                                                                                                 

                             This  test  is  "founded  on  two  concepts:                                                             first,  that  reasonable  judges,  



                                                                                                                                                                                 

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



        1       AS 12.55.125(i)(4).  



        2       AS 12.55.125(o).  



        3       McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).  



                                                                                                 -  3 -                                                                                           2482
  


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

 sentence; [and] 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."4  



                                                                                                                                                      

                          The         sentencing               judge           did       not        adopt          the       presentence                 report's  



                                                                                                                                                                 

recommendation of the minimum term of 4 years with 2 years suspended. He found that  



                                                                                                                                       

Beasley's offense required a longer term of imprisonment, despite Beasley's "good  



                                                                                                                                                            

prospects for rehabilitation."  The judge emphasized community condemnation, stating  



                                                                                                                                                                  

that society considers child pornography to be a "severe" criminal offense, with the  



                                                                                                                                                               

 "most innocent of victims."  In particular, the judge noted the extent of Beasley's child  



                                                                                                                                                            

pornography collection. Accordingly, he imposed 3 years to serve rather than the 2-year  



                                                                                    

 sentence recommended in the presentence report.  



                                                                                                                                                                     

                          The record supports the judge's decision.  Considering that the sentence is  



                                                                                                                                                                

toward the low end of the presumptive range, it is apparent that the judge took into  



                                                                                                                                                                

 account  Beasley's  lack  of  a  criminal  record,  his  youth,  his  cooperation  with  law  



                                                                                                                        

 enforcement, his acknowledgment of wrongdoing, his desire to receive treatment, and  



                                                                                                                                                          

his "good prospects for rehabilitation."  While another judge might with equal validity  



                                                                                                                                                           

have considered Beasley a good candidate for a minimum sentence that placed greater  



                                                                                                                                                   

 emphasis on his rehabilitation prospects, Beasley has not shown that the sentencing  



                                                                                    

judge imposed a sentence that was clearly mistaken.  



                                           

              The probation conditions  



                                                                                                                                                          

                          Beasley next challenges seven of his probation conditions - one general  



                                                                                                                                                               

 condition and six special conditions.  Under Alaska law, all probation conditions must  



       4     State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (internal quotation marks and   



 original citation omitted).  



                                                                                - 4 -                                                                          2482
  


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

be "reasonably related to the rehabilitation of the offender and the protection of the                                                                  



                                                                                              5  

public and must not be unduly restrictive of liberty."                                                                                              

                                                                                                  The State concedes that the court  



                                                                                                                                                      

failed to enter findings required to support five of the special conditions under this  



                                                                                                                                               

standard.  That concession is well-taken.  In fact, the court did not make any findings  



                                                                                                                                               

regarding  probation  conditions,  but  rather  adopted  wholesale  the  twelve  general  



                                                                                                                                        

conditions and twenty-two special conditions of probation proposed in the presentence  



report.  



                                                                                                                                                       

                        Some of the conditions are facially unrelated to Beasley's crime and life  



                                                                                                                                                 

circumstances or are not self-evidently applicable.  Others are overly broad or poorly  



                                                                                                                                                            

defined.  For example, the court ordered Beasley, a non-violent offender, to submit to a  



                                                                                                                                                           

search of his person, home, or vehicle for a deadly weapon.  But under Alaska law a  



                                                                                                     

sentencing court must express a case-specific basis for any requirement of warrantless  



                                                                                                           6  

                                                                                                                                                       

submission to searches for drugs, weapons, or other items.                                                     The State agrees that this  



                                      

condition should be vacated.  



                                                                                                                                                  

                        Similarly, the State agrees that remand is necessary for the court to revisit  



                                                                                                                                                         

its  conditions  regarding  possession  of  any  sexually  explicit  material,  presence  in  



                                                                                                                                                         

businesses  selling  this  material,  or  submission  to  search  for  this  broad  class  of  



                                                                                                                                                   

contraband.  This concession is appropriate in light of our decision in Diorec v. State,  



                                                                                                                                                           7  

                                                                                                                                                

where we held that the phrase "sexually explicit material" is unconstitutionally vague. 



                                                                                                                                                       

And the State agrees that a requirement that Beasley disclose his criminal history to "all  



                                                                                                                                                

persons  with  whom  he  has  a  significant  relationship,  or  with  whom  he  is  closely  



                                                                                                                                              

affiliated" cannot stand as written. In Smith v. State this Court rejected a nearly identical  



      5     Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).  



      6     Id. at 1243; State v. Thomas, 133 P.3d 684, 685 (Alaska App. 2005).  



      7     Diorec v. State , 295 P.3d 409, 417 (Alaska App. 2013).  



                                                                          -  5 -                                                                     2482
  


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

                                                                               8  

probation condition as impermissibly vague.                                       In particular, the Court held that the terms                     



"significant relationship" and "closely affiliated" provide "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  



                                                       9  

                                                                                                                                                

criminal history to the person."                         And while the State defends the superior court's alcohol  



                                                                                                                                               

restriction and breath analysis requirement, those conditions also requireexplicit judicial  



                                                                                                                 

findings, because there is no history of substance abuse in the record.  



                                                                                                                                                       

                        Finally, the State apparently did not file a forfeiture motion regarding the  



                                                                                                                                               

two seized computers.  If that matter has not yet been resolved, the court should address  



          

it on remand.  



                                                                                                                                         

                        Alaska law prohibits a sentencing judge from imposing undue restrictions  



                                                                                                                                            

on a probationer. Thus a judge must affirmatively review the State's proposed probation  



                                                                                                                                                

conditions. A judge may not delegate this responsibility to the presentence report author,  



                                                                                                                                                       

even if the defense does not object to the proposed conditions of probation.  We are  



                                                                                                                                         

cognizant of the burden this requirement imposes on judges facing multiple change-of- 



                                                                                                                                                        

plea proceedings that will collectively consume many hours.   But that burden is an  



                                                                                                                                                      

unavoidable consequence of the Alaska Supreme Court's holding in Roman v. State that  



                                                                                                                                                      

a  judge  may  only  impose  probation  conditions  that  are  "reasonably  related  to  the  



                                                                                                                                                

rehabilitation of the offender and the protection of the public and [that are not] unduly  



                                       10  

                         

restrictive of liberty." 



      8     Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015).
  



      9     Id.
  



      10    Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).
  



                                                                          -  6 -                                                                    2482
  


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

          Conclusion  



                    This Court AFFIRMS the term of imprisonment imposed by the superior  

                                                                                                                       



court.  This Court REMANDS for further proceedings regarding the imposed probation  

                                                                                                                     



conditions,  to  be  held  within  sixty  days.                    If  Beasley  then  objects  to  any  imposed  

                                                                                                                      



condition he shall file a brief within thirty days of the superior court's order amending  

                                                                                                                    



the conditions of probation,  and  the State  shall  file responsive briefing  thirty  days  

                                                                                                                            



thereafter.  This Court retains jurisdiction.  

                                              



                                                              -  7 -                                                        2482
  

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