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Pulusila v. State (5/18/2018) ap-2599

Pulusila v. State (5/18/2018) ap-2599

                                                                                        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  

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                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                



FALEALO  MANUELE  PULUSILA,  

                                                                                                                                                                

                                                                                                                  Court of Appeals No. A-12783  

                                                                                                                                                                                

                                                            Appellant,                                        Trial Court No. 3AN-13-5018 CR  



                                             v.  

                                                                                                                                O  P  I  N  I  O  N  

                                                                                                                                                                 

STATE  OF  ALASKA,  



                                                            Appellee.                                                 No. 2599 - May 18, 2018  

                                                                                                                                                                     



                              Appeal   from  the   Superior   Court,  Third  Judicial                                                             District,  

                                                                                                                                                

                              Anchorage, Paul E. Olson, Judge.  

                                                                                       



                              Appearances:                    Callie Patton Kim, Assistant Public Defender,  

                                                                                                                                               

                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  

                                                                                                                                                           

                              Appellant.                 Patricia  L.  Haines,  Assistant  Attorney  General,  

                                                                                                                                                 

                              Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                                                                                                                           

                              Attorney General, Juneau, for the Appellee.  

                                                                                                                           



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

                                                                                                                                                 

                              Superior Court Judge.*  

                                                                                



                                            

                              Judge MANNHEIMER.  



                              In September 2016, Falealo Manuele Pulusila was on felony probation, and                                                                                    



his   driver's   license   was   suspended.     Pulusila   borrowed   another   man's   truck.     The  



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



Constitution and Administrative Rule 24(d).                                     


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

                                                                                                                       

Anchorage police contacted Pulusila; one thing led to another; and the police searched  



                  

the truck.  



                                                                                                                                      

                    Inside  the  front  console,  the  police  found  a  small  explosive  device.  



                                                                                                                              

Underneath a pile of clothes in the back seat, they found ammunition for a firearm.  And  



                                                                                                                  

inside a backpack in the back seat, they found a methamphetamine pipe.  



                                                                                                                               

                    One of Pulusila's conditions of probation prohibited him from having any  



                                                                                                                      

ammunition or explosives in his "custody, residence, or vehicle".   Another of Pulusila's  



                                                                                                                                

conditions  of  probation  prohibited  him  from  having  any  drug  paraphernalia  in  his  



                                                                                                                               

"residence  or  ...  any  vehicle  under  [his]  control".                        Based  on  the  discovery  of  the  



                                                                                                                              

explosive device,  the ammunition,  and the meth pipe in the truck that Pulusila was  



                                                                                                                       

driving, the State petitioned the superior court to revoke Pulusila's probation.  



                                                                                                                               

                    Pulusila contested the State's petition.  He pointed out that the truck was  



                                                                                                                      

borrowed, and he asserted that he was unaware that the truck contained the explosive  



                                                                     

device, the ammunition, and the meth pipe.  



                                                                                                                            

                    The superior court did not resolve the question of whether these items  



                                                                                                                             

belonged to Pulusila, or whether Pulusila was even aware that the truck contained these  



                                                                                                                        

items.   Instead, the superior court ruled that it did not  make  any  difference whether  



                                                                             

Pulusila knew that these items were in the truck.  



                                                                                                                            

                    More specifically, the superior court ruled that Pulusila's probation could  



                                                                                                                      

lawfully be revoked if the State proved (1) that Pulusila was aware of the two probation  



                                                                                                                             

conditions that prohibited him from having these items, and (2) that the prohibited items  



                                                                                                                            

were present in a vehicle that was under Pulusila's control, even if Pulusila did not know  



                    

about them.  



                                                                                                                                

                    According to the court, it was no defense that Pulusila was unaware that the  



                                                                                                                            

prohibited items were in the vehicle.                       If the law were otherwise,  the superior  court  



                                                               - 2 -                                                          2599
  


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

                                                                                                                                 

declared, this would "give free rein" to anyone on probation to say, "It's not my car", or,  



                                                                                                                           

if the car was rented, "[Those items were] left in there by [a] previous renter."  



                                                                                                                                

                     Based on this ruling, the superior court revoked Pulusila's probation and  



                                                                                       

imposed all of Pulusila's remaining suspended jail time.  



                                                                                                    

                     Pulusila now appeals the superior court's decision.  



                                                                                                                                  

                     Pulusila's first argument is that, contrary to the superior court's ruling, his  



                                                                                                                               

two probation conditions did not make him strictly liable for any prohibited items that  



                                                                                                                      

might  be  found  in  his  residence  or  vehicle.                         Pulusila  contends  that  his  probation  



                                                                                                                               

conditions prohibited him from knowingly possessing ammunition, explosives, or drug  



                        

paraphernalia.  



                                                                                                                                

                     Pulusila next argues that if his probation conditions did, in fact, make him  



                                                                                                                       

strictly liable for any prohibited items found in the borrowed truck, then those probation  



                                                                                                            

conditions violated the constitutional guarantee of due process of law.  



                                                                                                                           

                     The State responds that Pulusila's probation conditions did, indeed, impose  



                                                                                                                        

strict liability for any prohibited items found in the borrowed truck.  The State contends  



                                                                                                                      

that even if Pulusila had  no reason to know that the truck contained these prohibited  



                                                                                                                                

items, Pulusila nevertheless had a duty to make sure, before he borrowed the truck, that  



                                                                                                                 

the vehicle did not contain any items that he was prohibited from having.  



                                                                                                                             

                     The State further contends that this kind of strict liability is lawful.  More  



                                                                                                                                   

specifically,  the State argues that,  under Alaska law,  a court can properly revoke  a  



                                                                                                                                 

defendant's probation even when it is clear that the defendant was not at fault and did not  



                                                                                                                               

act with any culpable mental state.  According to the State, the defendant's lack of fault  



                                                                                                                                  

is a matter that a court should consider at the disposition hearing (i.e., at sentencing) -  



                                                                                                           

after the court has found that the defendant violated their probation.  



                                                                                                                           

                     We will address these contentions in reverse order.   We will first discuss  



                                                                                                                                

the State's claim that Alaska law allows a court to hold a defendant strictly liable for any  



                                                               - 3 -                                                          2599
  


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

                                                                                                                               

violation of probation, regardless of the defendant's lack of fault.  As we explain in this  



                                                                                                                             

opinion, the State's argument is partially correct.  There are circumstances when a court  



                                                                                                                               

can  revoke  a  defendant's  probation  for  a  violation  of  probation  that  was  not  the  



                                                                                                                                  

defendant's fault.            But there is no universal rule  that  a  defendant's lack of fault is  



                  

irrelevant.  



                                                                                                                             

                    Rather, under Alaska law, a court can revoke a defendant's probation when  



                                                                                                                      

the defendant's violation of probation supports the conclusion that the aims of probation  



                                                                                                                                  

are not being met, and that the defendant's continued release on probation would be at  



                                                                                                                                      

odds with the goals of protecting society  and fostering the defendant's rehabilitation.  



                                                                                                                              

When a court  makes  this determination, the defendant's fault (or lack of fault) may  



                                                                                                                              

sometimes have little relevance - but conversely, the defendant's fault or lack of fault  



                                                                                         

may sometimes be a crucial factor in the court's decision.  



                                                                                                                     

                    We will then address the question of how to interpret Pulusila's conditions  



                                                                                                                               

of probation, given our construction of Alaska probation  law.                                      As we explain in this  



                                                                                                                             

opinion, we agree with Pulusila that his conditions of probation only prohibited him from  



                                                                                                                         

knowingly possessing the ammunition, explosives, and drug paraphernalia.  And because  



                                                                                                                         

of this, the superior court was required to resolve the contested issue of whether Pulusila  



                                                                                                      

was aware that these prohibited items were present in the vehicle.  



                                                                                                                   

          The question of  whether a defendant's probation may be revoked even  

                                                                                                                     

          when  the  defendant  bears  no  fault  for  their  failure  to  abide  by  the  

                                

          conditions of probation  



                                                                                                                  

                    As  we  just  explained,  the  State  takes  the  position  that  a  defendant's  



                                                                                                                           

probation can be revoked even when the defendant's action (or the defendant's failure  



                                                                                                                            

to act) was not accompanied by any culpable mental state - in other words, even when  



                                                                                                                              

the failure to abide by the conditions of probation was not the defendant's fault.  The  



                                                               - 4 -                                                          2599
  


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

State bases this argument on our supreme court's decision in                                            Trumbly v. State             , 515 P.2d     



707 (Alaska 1973).                 



                  (a) The Alaska Supreme Court's decision in Trumbly  

                                                                                                 



                       In  Trumbly,  the  State  petitioned  the  sentencing  court  to  revoke  a  

                                                                                                                                                    



defendant's probation because the defendant failed to promptly report to his probation  

                                                                                                                                       



officer upon his release from prison.  In fact, Trumbly left Alaska without obtaining his  

                                                                                                                                                  

probation officer's permission. 1  

                                                          



                       Trumbly defended by asserting that he was mentally ill, that his mental  

                                                                                                                                           



disease or defect "deprived him of the substantial capacity to conform his conduct to the  

                                                                                                                                                  



conditions of [his] probation", and that he therefore should not be held accountable for  

                                                                                                                                                  

his failure to report and for his unauthorized departure from the state. 2  

                                                                                                                             



                       This phrasing- "substantialcapacity" to "conform [one's] conduct" to the  

                                                                                                                                                  



requirements of the law - is drawn from the second prong  of  the  American Law  

                                                                                                                                               



Institute's formulation of the insanity defense.  See   4.01(1) of the Model Penal Code  

                                                                                                                                              



(Official Draft, 1962).  This was the version of the insanity defense that was in effect in  

                                                                                                                                                    



Alaska when Trumbly's case was litigated.  See Schade v. State, 512 P.2d 907, 911 &  

                                                                                                                                                    



n. 2 (Alaska 1973).  

                                    



                       The supreme court concluded that even if Trumbly lacked the substantial  

                                                                                                                                     



capacity to obey his conditions of probation because of mental disease or defect, this did  

                                                                                                                                                  



not prevent the sentencing court from revoking Trumbly's probation.  

                                                                                                                          



      1     Trumbly, 515 P.2d at 708.                    



      2  

                     

           Ibid.  



                                                                        - 5 -                                                                  2599
  


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

                                                                                                                        

                     The question, according to the supreme court, was not whether Trumbly  



                                                                                                                                

was  morally  blameworthy  or  potentially  criminally  liable  for  failing to  abide  by  the  



                                                                                                                             

conditions of his probation.  Rather, the question was whether the sentencing court could  



                                                                                                                     

reasonably conclude that the aims of probation were not being met, and that Trumbly's  



                                                                                                                                

continued release on probation "would be at odds with the need to protect society and  



                                                   

society's interest in [Trumbly's] rehabilitation":  



                      

                                                                                                        

                               [T]he defense of insanity is irrelevant  to  the issues  

                                                                                                                  

                    which are to be determined in a probation revocation hearing.  

                                                                                                            

                     At  such  a  hearing,  the  inquiry  is  focused  on  whether  the  

                                                                                                 

                    probationer engaged in conduct violative of the conditions  

                                                                                                                  

                    under which he was permitted to [remain free on probation].  

                                                                                                             

                     ... [A] probationer should [not] be able to prevail upon an  

                                                                                                     

                     assertion that his probation should not be revoked because  

                                                                                                              

                     mental illness renders him unable to conform his conduct to  

                                                                                                           

                     the terms of his probation.                  Conformity to reasonable and  

                                                                                               

                     lawful terms of probation is a prerequisite to the continuation  

                                                         

                     of probationary status.  



                                   

Trumbly, 515 P.2d at 708-09.  



                                                                                                                           

                     The supreme court then described the procedures that a court should follow,  



                                                                                                                                  

and the decisions that a court must make, when the government petitions the court to  



                                                  

revoke a defendant's probation:  



                      

                                                                                                    

                               The  first  step  in  a  [probation]  revocation  decision  

                                                                                                             

                     involves a wholly retrospective factual question: whether the  

                                                                                                              

                     [probationer] has in fact acted in violation of one or more of  

                                                                                                           

                     the conditions of his [probation].  Only if it is determined that  

                                                                                                      

                     the [probationer] did violate the conditions does the second  

                                                                                                              

                     question arise:  should the [probationer] be recommitted to  

                                                                                                            

                    prison[,] or should other steps be taken to protect society and  

                                                                          

                     improve chances of rehabilitation.  



                                                               - 6 -                                                          2599
  


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

                                        The requirement that probation revocation                                            follow after  

                           a showing of "good cause" [                              see  AS 12.55.110] requires the                          

                           trial judge to find that [a] continuation of probationary status                                             

                           would   be   at   odds   with   the   need   to   protect   society   and  

                           society's              interest           in       the        probationer's                   rehabilitation.   

                           Revocation   should   follow   [a   defendant's]   violation   of   a  

                           condition of probation when that violation indicates that the                                                     

                           corrective aims of probation cannot be achieved.                                                    



Trumbly, 515 P.2d at 709.                    



                                                                                                            

                     (b) The State's suggested interpretation of Trumbly  



                                                                                                                                                              

                           The State argues that we should draw two conclusions from the Trumbly  



                     

decision.  



                                                                                                                                                                          

                           First, the State suggests that probation revocation proceedings should be  



                                                                                                                                                                           

viewed as having two parts.  According to the State, the first part of the proceedings is  



                                                                                                                                                               

an  adjudication  phase,  where  the  court  determines  the  historical facts  and  decides  



                                                                                                                                                                       

whether the defendant has violated the terms of probation.  Then, if the court finds that  



                                                                                                                                                                  

the defendant has violated their probation, the proceedings move to a disposition phase,  



                                                                                                                                                            

where the court decides what should be done about the defendant's violation of probation  



                                                                                                                                                                          

- which could range from simply returning the defendant to probation, all the way to  



                                                                                                                                                          

imposition of the entirety of the defendant's remaining suspended sentence.  



                                                                                                                                                                            

                           Second, the State suggests that Trumbly stands for the proposition that a  



                                                                                                                                                                                

defendant's  lack  of  fault  is  irrelevant  in  the  adjudication  phase  of  the  proceedings.  



                                                                                                                                                                       

According to the State, the fact that a defendant lacked any culpable mental state, and  



                                                                                                                                                                      

that a defendant may have done their best to conform to the conditions of probation, only  



                                                                                                                                                           

becomes relevant during the disposition phase of the proceedings.  Even if the defendant  



                                                                                                                                                                       

was  not  at  fault,  this  does  not  prevent  the  sentencing  court  from  finding that  the  



                                                                                   - 7 -                                                                              2599
  


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

                                                                                                                              

defendant violated the conditions of probation.                              The  defendant's lack of fault only  



                                                                                                                                      

matters when the court decides what consequences should be imposed for the violation.  



                                                                                                                        

                    We conclude that both of the State's assertions mischaracterize the supreme  



                                             

court's decision in Trumbly.  



                                                                                                                    

                    First,  even  though  Trumbly  appears  to  describe  probation  revocation  



                                                                                                                                   

proceedings as having two stages, it is clear from the supreme court's discussion that a  



                                                                                                                               

sentencing court must perform three duties.   The court's first duty is to ascertain the  



                                                                                                                            

historical facts of the case.   The court's second duty is to decide whether, given those  



                                                                                                                

facts, there is good cause to revoke the defendant's probation.  (Under AS 12.55.110(a),  



                                                                                                                                 

a defendant's probation can only be revoked for good cause.)  The court's third duty -  



                                                                                                                      

which arises only if the court has found good cause to revoke the defendant's probation  



                                                                                                                                

- is to determine what consequences, if any, should be imposed on the defendant.  



                                                                                                                           

                    The problem with describing probation revocation proceedings as having  



                                                                                                                              

two  phases  -  an  "adjudication"  phase  and  a  "disposition"  phase  -  is  that  this  



                                                                                                                        

description can mask the underlying reality that the court must perform three separate  



                                                                                                                                

duties. This problem becomes acute when, as in Pulusila's case, the State argues that the  



                                                                                                                              

"adjudication" phase encompasses both the court's duty to ascertain the historical facts  



                                                                                                                                

and the court's duty to decide whether those facts constitute good cause for revokingthe  



                                     

defendant's probation.  



                                                                                                                             

                    By grouping both of these duties into the adjudication phase,  and  then  



                                                                                                                                

arguing that a defendant's lack of fault is irrelevant to the entire adjudication phase, the  



                                                                                                                        

State reaches the conclusion that a defendant's lack of fault is irrelevant to the question  



                                                                                                                              

of whether there is good cause to revoke the defendant's probation.  But Trumbly says  



                      

the opposite.  



                                                                                                                                

                    In  Trumbly,  the supreme court expressly recognized that,  whatever the  



                                                                                                                             

historical facts  of a specific case might be,  our law forbids a sentencing court from  



                                                               - 8 -                                                          2599
  


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

                                                                                                                            

revoking a defendant's probation unless the court finds that those facts constitute "good  



                                                                                                                           

cause" to revoke probation.  Id.  at 709.  The supreme court then defined "good cause"  



                                                                                                                               

as  a  finding that  "the  corrective  aims  of  probation  cannot  be  achieved",  and  that  



                                                                                                                                   

"continuation of [the defendant's] probationary status would be at odds with the need to  



                                                                                                                         

protect society and society's interest in the probationer's rehabilitation."  Ibid.  



                                                                                                                                

                     The Trumbly court did not say that a defendant's lack of culpability was  



                                                                                                                               

irrelevant to this determination.  Rather, the Trumbly court said that a defendant's lack  



                                                                                                                         

of responsibility under the second prong of the American Law Institute's test forinsanity  



                                                         

was irrelevant to this determination.  



                                                                                                                            

                     As we have already explained, Trumbly asserted that his probation should  



                                                                                                                                 

not be revoked because he met the second prong of the American Law Institute's test for  



                                                                                                                                  

insanity - i.e., he suffered from a mental disease or defect, and this mental disease or  



                                                                                                                      

defect deprived him of "the substantial capacity to conform his conduct to the conditions  



                                

of [his] probation".  



                                                                                                                              

                     This was not a claim that Trumbly lacked any culpable mental state when  



                                                                                                                                

he violated his probation.  Rather, Trumbly was claiming that, despite his awareness that  



                                                                                                                           

he should be reporting to his probation officer,  and that he should not leave Alaska  



                                                                                                                                 

without permission, his failure to abide by these duties should be excused because his  



                                                                                                                                 

mental disease or defect deprived him of the capacity to  conform his conduct to the  



                                                 

requirements of his probation.  



                                                                                                                              

                     We explained this point of law in Hart v. State, 702 P.2d 651 (Alaska App.  



            

1985):  



                       

                                                                                                          

                               [W]hatever            insanity       defense        exists      [under       the  

                                                                                                     

                     "substantial capacity" test], it is different from ... [a negation  

                                                                                                           

                     of]  the  prosecution's  proof  that  the  defendant  had  the  

                                                                                                         

                     necessary mens rea to commit a particular offense ... .  [See]  



                                                               - 9 -                                                          2599
  


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

                                                         Mill v. State                                         , 585 P.2d 546 (Alaska 1978) (mental disease or                                                                                                                                                   

                                                          defect can prevent formation of specific intent but not general                                                                                                                                                                   

                                                          intent).     ...     [E]ven   if   the   Alaska   legislature   ...   entirely  

                                                          repeal[ed] any insanity defense, it would stillbe                                                                                                                                                      necessary for   

                                                          the state to prove beyond reasonable doubt that the defendant                                                                                                                                                         

                                                          engaged in conscious voluntary acts, [                                                                                                                        see  AS 11.81.600(a)],   

                                                          and [that the defendant] possessed the requisite                                                                                                                                                         mens rea                                 for  

                                                          the offense.                                        AS 12.47.020.                                                        



Hart, 702 P.2d at 655-56.                                                     



                                                          In   other   words,   under   the   American   Law   Institute's   test,   proof   that   a  



 defendant lacked the substantial capacity to conform their conduct to the requirements                                                                                                                                                                                                                                    



 of the law was not a negation of the defendant's                                                                                                                                                              mens rea                                 .   Rather, it was an additional                                                 



                                                                                                                                                                                                     3  

 factor that excused the defendant's                                                                                                                   mens rea                                  .    



                                                          This is the context for the supreme court's statement in Trumbly that, even  

                                                                                                                                                                                                                                                                                                                                                              



 assuming Trumbly could establish the second prong of  the American Law Institute's  

                                                                                                                                                                                                                                                                                                                                       



 insanity  test,  Trumbly's  inability  to  stop  himself  from  violating  the  conditions  of  

                                                                                                                                                                                                                                                                                                                                                                       



probation was not a valid defense to a probation revocation proceeding - because, if  

                                                                                                                                                                                                                                                                                                                                                                            



 Trumbly could not stop himself from violating his probation, then it was clear that the  

                                                                                                                                                                                                                                                                                                                                                                     



 aims of Trumbly's probation were not being met, and that Trumbly's continued release  

                                                                                                                                                                                                                                                                                                                                                     



               3             For an example of the supreme court's application of this principle, see                                                                                                                                                                                                                   Smith v. State                                            ,  



 614 P.2d 300, 304 (Alaska 1980):                                                                                                            



                             All the evidence points to a finding that Smith ... appreciate[d] the wrongfulness                                                                                                                                                                                               

               of his conduct when he shot Officer Jordan.                                                                                                                                           Smith admitted ... that what he did was                                                                                                          

               illegal and morally wrong.                                                                                      All three medical experts testified                                                                                                                   that Smith, even if                                                     

               suffering from a mental illness, could appreciate the wrongfulness of his conduct.                                                                                                                                                                                                                                                                      

               The record contains no contrary evidence.                                                                                                                               Thus, [our] focus ... is on the second prong                                                                                                           

               of the legal responsibility test: whether Smith had substantial capacity to conform his                                                                                                                                                                                                                                                   

               conduct to the requirements of the law when he shot Officer Jordan.                                                                                                                                                                                                                  



                                                                                                                                                                               -  10 -                                                                                                                                                                            2599
  


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

                                                                                                                                  

on probation "would be at odds with the need to protect society and society's interest in  



                                

[his] rehabilitation".  



                                                                                                                       

                    Thus,  the State misreads  Trumbly when the State asserts that  Trumbly  



                                                                                                                        

stands for the proposition that a defendant's lack of culpability for a probation violation  



                                                                                                                   

is never relevant when assessing whether there is good cause to revoke the defendant's  



                  

probation.  



                                                                                                                           

                    For example, nothing in  Trumbly suggests that the supreme court would  



                                                                                                                                

have upheld a revocation of Trumbly's probation if Trumbly had failed to report to his  



                                                                                                                      

probation officer because he was involved in a car accident on his way to the probation  



                                                                                                                                

office and was taken to the hospital.   Similarly, nothing in  Trumbly suggests  that the  



                                                                                                                      

supreme court would have upheld a revocation of probation if  Trumbly's probation  



                                                                                                                                

officer had moved up Trumbly's appointment at the last minute, and if Trumbly did not  



                                                                                                                             

arrive until his normally scheduled time because he never received notice of the new,  



                                                   

earlier time for his appointment.  



                                                                                                                               

                    These circumstances - the lack of a voluntary act in the first example, and  



                                                                                                                                   

the lack of a culpable mental state in the second  example  -  would be relevant to a  



                                                                                                                               

determination of whether there was good cause to revoke Trumbly's probation.   We  



                                                                                                                                  

therefore reject the State's contention that  Trumbly stands for the proposition that  a  



                                                                                                                                

defendant's lack of culpability is completely irrelevant when a court decides whether the  



                                                                                                 

facts establish good cause to revoke the defendant's probation.  



                                                                                                                      

                    Instead, we interpret the supreme court's decision in Trumbly as consistent  



                                                                                                                             

with the approach reflected in State v. Leach, 20 P.3d 709 (Idaho App. 2001).   Like  



                                                                                                                        

Trumbly, the Leach decision emphasizes that the ultimate issue to be decided is whether  



                                                                                                                        

the defendant's conduct demonstrates that the conditions of probation are not ensuring  



                                                                                                                             

the public safety or fostering the defendant's rehabilitation - and that sometimes there  



                                                              -  11 -                                                         2599
  


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

will be good cause to revoke the defendant's probation                                                                                                                               even when the defendant's                         



                                                                                                                                                                                                                                              4  

violation of probation was not willful or was beyond the defendant's control.                                                                                                                                                                     



                                          (The State cites dozens of cases from other jurisdictions in support of its  

                                                                                                                                                                                                                                                                     



overly expansive reading of Trumbly.  Many of these cases do, indeed, include language  

                                                                                                                                                                                                                                                  



 suggesting that a defendant's lack of culpability is no excuse in a probation revocation  

                                                                                                                                                                                                                                            



proceeding. But most of these cases involve the same issue presented in Trumbly - i.e.,  

                                                                                                                                                                                                                                                                



whether  a  defendant's  violation  of  probation  should  be  excused  because  of  the  

                                                                                                                                                                                                                                                                

defendant's  mental disease  or  defect. 5                                                                                            And  in  several other  cases,  the  expansive  

                                                                                                                                                                                                                                             



language that the State relies on is dictum - because those courts ultimately based their  

                                                                                                                                                                                                                                                              



decisions on findings by the sentencing court that the defendant did act with a culpable  

                                                                                                                                                                                                                                                

mental state. 6)  

                                                



           4         See Leach                       , 20 P.3d at                         713:     "In   deciding whether revocation of probation is the                                                                                                           



appropriate response to a violation, the court considers whether the probation is achieving                                                                                                                                                     

the goal of rehabilitation and whether continued probation is consistent with the protection                                                                                                                                                  

of society.                       ...   [If] a probationer's violation of a probation condition was not willful, or was                                                                                                                                          

beyond the probationer's control, a court may not revoke probation and order imprisonment                                                                                                                                           

without first considering alternative methods to address the violation.                                                                                                                                      Only if the trial court                         

determines that alternatives to imprisonment are not adequate in a particular situation to meet                                                                                                                                                               

the state's legitimate interest in punishment, deterrence, or the protection of society, may the                                                                                                                                                                    

court imprison a probationer who has made sufficient, genuine efforts to obey the terms of                                                                                                                                                                            

the probation order."                                          (Citations omitted)                                         



           5  

                                                                                                                                                                                                                                                                        

                     See, e.g., United States v. Gallo, 20 F.3d 7, 14-15 (1st Cir. 1994); United States v.  

                                                                                                                                                                                                                                                                 

Brown , 899 F.2d 189, 194 (2nd Cir. 1990); Knight v. Estelle , 501 F.2d 963, 964-65 (5th Cir.  

                                                                                                                                                                                                                                            

 1974); United States v. Pinjuv, 218 F.3d 1125, 1127, 1130-31 (9th Cir. 2000).  



           6  

                                                                                                                                                                                                                                                          

                     See, e.g., United States v. Jones, 133 F.Appx 824, 826 (3rd Cir. 2005); United States  

                                                                                                                                                                                                                                                              

v. Warner, 830 F.2d 651,657-58 (7thCir. 1987); Vann v. State, 143 So.3d 850, 861-62 (Ala.  

                                                                                                                                                                                                                                                        

Crim. App. 2013); State v. Joe, unpublished, 2008 WL 2838501 at *4 (Ariz. App. 2008);  

                                                                                                                                                                                    

People v. Colabello , 948 P.2d 77, 79-80 (Colo. App. 1997).  



                                                                                                                              -  12 -                                                                                                                           2599
  


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

             Why we conclude that Pulusila's conditions of probation prohibited him                                                           

                                                                                                                                                       

            from  knowingly possessing the prohibited items in the borrowed vehicle  



                                                                                                                                                  

                         As we explained in the introductory section of this opinion, the superior  



                                                                                                                                                           

court  ruled  that  Pulusila's  conditions  of  probation  made  him  strictly  liable  for  the  



                                                                                                                                                         

presence of the explosive device, the ammunition, and the meth pipe in the truck, even  



                                                                                                                                                         

if Pulusila had no reason to know that the truck contained these prohibited items.  



                                                                                                                                                        

                         However, the superior court did not take testimony (or consider any other  



                                                                                                                                                    

evidence) when it construed the meaning of Pulusila's two probation conditions. Instead,  



                                                                                                                                                            

the  superior  court based its ruling on the wording of the conditions - and on the  



                                                                                                                                            

perceived benefits of a policy that would allow sentencing courts to revoke a defendant's  



                                                                                                                                                   

probation based on prohibited items that were left in a rental car by a previous renter.  



                                                                                                                                                     

                         In these circumstances, we do not owe deference to the superior court's  



                                                                                                                                                

interpretation of the two probation conditions.  Instead, we will independently determine  



                                                                                                                                                

how  a  reasonable person in Pulusila's place would have understood these probation  



                                                                                                                                                           

conditions, "taking into consideration the language of the disputed provision[s] ... and  



                                                                                   7  

                                                                                       

the case law interpreting similar provisions".  



                         Here is the text of the two provisions at issue:  

                                                                                                                



                           

                                     You  shall  not  own,  possess,  purchase,  transport,  

                                                                                                                      

                         handle[,] or have in your custody, residence, or vehicle, any  

                                                                                                                                  

                         firearm, ammunition, explosives, or weapon(s) ... capable of  

                                                                                                                                     

                         inflicting bodily harm or incapacitation.  

                                                                                                    



                                     You shallnot use, possess, handle, purchase, give[,] or  

                                                                                                                                      

                         administer  any  controlled  substance,  including  marijuana,  

                                                                                                                     

                         without a valid prescription.  ...  You shall not have on your  

                                                                                                                                



      7     Joubert v. State             , 926 P.2d 1191, 1193 (Alaska App. 1996), citing                                      Peterson v. Wirum                ,  



625 P.2d 866, 872 n. 10 (Alaska 1981).                                  



                                                                            -  13 -                                                                       2599
  


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

                                                                                                      

                    person,  in  your residence or vehicle[,] or [in] any vehicle  

                                                                                                  

                    under  your  control,  any  drugs  or  paraphernalia  normally  

                                                                                

                    associated with the illicit use of drugs.  



                                                                                                                         

                    The State asserts that these two provisions, on their face, prohibited Pulusila  



                                                                                                                         

from being in control of a vehicle that had these prohibited items in it - even if Pulusila  



                                                                                                                                 

remained   wholly   ignorant   of   their   presence.                            This   argument   is   based   on   a  



                                                                    

misunderstanding of the law of possession.  



                                                                                                                             

                    Under Alaska's criminal law, to prove that a person "possessed" an item,  



                                                                                                                                 

the government must prove that the person engaged in a voluntary act of possessing or  



                                                                                                                    

controlling the item.  AS 11.81.600(a).  In this context, a "voluntary" act of possession  



                                                                                                                        

means physical possession or control where the person  "was  aware of the physical  



                                                                                                                                      

possession  or  control  for  a  sufficient  period  to  have  been  able  to  terminate  it."  



                                    

AS 11.81.900(b)(66).  



                                                                                                                                  

                    The State points out that,  strictly speaking,  the definitions contained in  



                                                                                                                              

AS  11.81 apply only to the interpretation of the criminal statutes in Title 11.                                              But  



                                                                                                                                  

AS 11.81.600(a) and AS 11.81.900(b)(66) merely codify the common understanding of  



                                                                                                                          

what "possession" means. Reasonable people would not expect that a court could revoke  



                                                                                                                               

a person's probation and send them to prison for "possessing" something that they had  



                             

no knowledge of.  



                                                                                                                               

                    As the Supreme Court of California recently noted in People v. Hall, 388  



                                                                                                                       

P.3d 794, 799 (Cal. 2017), "knowledge of the contraband's presence and of its restricted  



                                                                                                                     

nature  is  implicit in probation conditions restricting firearms and narcotics, regardless  



                                                                                            

of any minor variations in the wording of those conditions."  



                                                                                                                                  

                    We conclude that Pulusila's conditions of probation must be interpreted in  



                                                                                                                                  

light of this common understanding.                        We do not believe that a reasonable person in  



                                                                                                                               

Pulusila's  circumstances  would  interpret  his  probation  conditions  as  authorizing the  



                                                              -  14 -                                                         2599
  


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

                                                                                                                            

superior court to revoke Pulusila's probation and send him to prison if his teenage child,  



                                                                                                                                 

or one of his child's friends, secretly brought marijuana into his home.  Likewise, we do  



                                                                                                                                

not believe that a reasonable  person in Pulusila's circumstances would interpret his  



                                                                                                                               

probation conditions as authorizing the superior court to revoke Pulusila's probation and  



                                                                                                                             

send him to prison if  Pulusila  borrowed or rented a car and,  unbeknownst to him,  



                                                                                

someone else had left a weapon or drugs in the car.  



                                                                                                                                

                    This interpretation of the two probation conditions is also supported by the  



                                                                                                                         

rule laid down by our supreme court in Roman v. State, 570 P.2d 1235, 1240 (Alaska  



                                                                                                                              

1977)  -  the  rule  that  conditions  of  probation  must  be  "reasonably  related  to  the  



                                                                                                                          

rehabilitation  of  the  offender  and  the  protection  of  the  public[,]  and  [not]  unduly  



                                   

restrictive of liberty."  



                                                                                                                       

                    Roman counsels us that, if there is ambiguity in the meaning of a probation  



                                                                                                                           

condition, we should consider whether either of the two competing interpretations makes  



                                                                                                                          

more sense in light of the purposes of probation.  Here, it is unclear what public benefit  



                                                                                                                    

would be  achieved by sending probationers back to jail for "possessing" explosives,  



                                                                                                         

ammunition, or drug paraphernalia that they did not know they had.  



                                                                                                                      

                    For these reasons, we conclude that Pulusila's two conditions of probation  



                                                                                                                         

prohibited him  from knowingly possessing the listed prohibited items.   Thus, without  



                                                                                                                                

proof that Pulusila knew that these items were in the truck, the superior court had no  



                                                                                                              

basis for finding that Pulusila violated these conditions of his probation.  



                                                                                                                            

                    In  its  brief  to  this  Court,  the  State  asserts  that  the  superior  court  



                                                                                                                     

affirmatively found that Pulusila was, in fact, aware of the presence of the prohibited  



                                                                                                                                 

items in the vehicle - that Pulusila's claim of ignorance was "simply not supported by  



                                                                                                                        

the facts".   But the record fails to support the State's characterization of the superior  



                                                                                                                     

court's ruling.   The superior court expressly ruled that it did not make any difference  



                                                                                                                                

whether Pulusila knew that the prohibited items were present in the vehicle.  Indeed, the  



                                                              -  15 -                                                         2599
  


----------------------- Page 16-----------------------

                                                                                                                              

court declared that it would be contrary to good policy to require the State to prove that  



                                                                           

Pulusila was aware of these items in the vehicle.  



                                                                                                                               

                    Because  of  this  ruling,  the  superior  court  never  resolved  the  issue  of  



                                                                                                                        

whether Pulusila was aware of the presence of the prohibited items in the truck.  Instead,  



                                                                                                                     

the superior court mistakenly concluded that the resolution of this issue was irrelevant  



                                                                                                                    

to the question of whether Pulusila violated the conditions of his probation.  



          Conclusion  



                                                                                                                           

                    The superior court's judgement is REVERSED.  The State is free to renew  



                                                                                                                       

its  petition  to  revoke  Pulusila's  probation,  but  the  State  must  prove  that  Pulusila  



                                                                 

knowingly possessed the prohibited items.  



                                                                                                                              

                    Given our resolution of this issue, we need not address Pulusila's claim that  



                                                                           

his probation revocation sentence was excessive.  



                                                             -  16 -                                                         2599
  

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