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Silas v. State (6/1/2018) ap-2602

Silas v. State (6/1/2018) ap-2602

                                                                                                       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                                                                                   



ROY  F.  SILAS,  

                                                                                                                                                                                            

                                                                                                                                      Court of Appeals No. A-11452  

                                                                                                                                                                                                              

                                                                      Appellant,                                                 Trial Court No. 3AN-99-1814 CR  



                                                     v.  

                                                                                                                                                       O  P  I  N  I  O  N  

                                                                                                                                                                                            

STATE  OF  ALASKA,  



                                                                      Appellee.                                                            No. 2602 - June 1, 2018  

                                                                                                                                                                                               



                                   Appeal   from  the   Superior   Court,  Third  Judicial                                                                                  District,  

                                                                                                                                                                         

                                   Anchorage, Michael L. Wolverton, Judge.  

                                                                                                                           



                                   Appearances:  J. Adam Bartlett, Anchorage, under contract with  

                                                                                                                                                                                      

                                   the Office of Public Advocacy, for the Appellant.  Timothy W.  

                                                                                                                                                                                         

                                   Terrell, Assistant Attorney General, Office of Criminal Appeals,  

                                                                                                                                                                            

                                   Anchorage, and Craig W. Richards, Attorney General,  Juneau,  

                                                                                                                                                                              

                                   for the Appellee.  

                                                                               



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

                                                                                                                                                                          



                                   Judge MANNHEIMER.  

                                                   



                                   As a condition of his probation, Roy F. Silas was ordered to participate in                                                                                                                



sex offender treatment as directed by his probation officer, and to "not ... discontinue                                                                                                             



treatment" unless he had his probation officer's approval.                                                                                               After Silas had participated               



in a    sexoffender treatment program                                                       for over a year, the program                                              director terminated him                             



from the program for various reasons (reasons that we will examine                                                                                                                      in   this opinion).                          


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

                                                                                                                               

Based  on  Silas's  termination  from  the  treatment  program,  the  State  petitioned  the  



                                                                                                                                

superior court to revoke his probation, alleging that Silas had violated his probation by  



                                                                          

discontinuing his treatment without permission.  



                                                                                                                               

                     Silas's attorney argued that Silas had not "discontinued" treatment,  but  



                                                                                                                         

rather that Silas had been involuntarily discharged from the treatment program without  



                      

good reason.  



                                                                                                                    

                    The superior court ruled that it did not matter why Silas was terminated  



                                                                                                                                 

from the treatment program.                     The court interpreted Silas's condition of probation as  



                                                                                                                               

requiring Silas to continue treatment until his probation officer said otherwise, and that  



                                                                                                                             

Silas was in "technical violation" of his probation because he had been discharged from  



                                                                                                                         

the  treatment  program  -  regardless  of  whether  there  was  good  cause  for  Silas's  



                 

discharge.  



                                                                                                                               

                    We conclude that the superior court's ruling was error.  If it was true that  



                                                                                                                       

Silas was discharged from the treatment program for no good reason (or for improper  



                                                                                                                                

reasons), then Silas's discharge from treatment would not establish good cause for the  



                                                     

court to revoke Silas's probation.  



                                                                                                                              

                    As  we  recently  explained  in  Pulusila  v.  State,  __  P.3d  __,  2018  WL  



                                                                                                                                  

2272568  (Alaska  App.  2018),  our  law  forbids  a  sentencing court  from  revoking a  



                                                                                                                  

defendant's probation unless the court finds that the facts surrounding the defendant's  



                                                                                                                               

violation of probation constitute "good cause" to revoke probation.  Pulusila, 2018 WL  



                                                                                                                      

2272568 at *2, 3, 6.  In this context, "good cause" means 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." Id. at *3, quoting Trumbly v. State, 515 P.2d  



                                        

707, 709 (Alaska 1973).  



                                                               - 2 -                                                          2602
  


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

                                                                                                                                 

                     In Silas's case, the superior court never reached the factual merits of the  



                                                                                                                             

defense attorney's contention that Silas was terminated from treatment without  good  



                                                                                                                             

reason.   Thus, Silas's case still presents disputed issues of fact that the superior court  



                                                                                                                               

must address and resolve - and we remand Silas's case to the superior court for that  



               

purpose.  



                                                                                                                      

                     Silas's case also presents other issues related to his conditions of probation.  



                                                                                                                            

                     At the probation revocation hearing,  the superior  court rejected Silas's  



                                                                                                                                 

request that he be allowed to socialize with Patsy Schreiber, his romantic partner and the  



                                                                                                                                 

mother of his children.  Because the superior court failed to offer any plausible basis for  



                                                                                                                                 

this restriction on Silas's family relationship, we reverse the superior court's ruling on  



                    

this matter.  



                                                                                                                              

                     Additionally, after the superior court revoked Silas's probation, the court  



                                                                                                                        

added several new probation conditions.  The court ordered Silas to enroll in domestic  



                                                                                                                               

violence treatment, even though his case apparently presents no issue of violence.  The  



                                                                                                                                  

court also ordered that, if a medical professional deemed it appropriate, Silas would be  



                                                                                                                            

required to enroll in a residential treatment program.  By adding the possibility of forced  



                                                                                                                           

participation  in  residential  treatment,  the  superior   court  illegally  increased  Silas's  



                                                                                                                        

sentence. See Christensen v. State, 844 P.2d 557, 559 (Alaska App. 1993). We therefore  



                                                                                  

direct the superior court to rescind these conditions.  



                              

           Underlying facts  



                                                                                                                                    

                     In 1999, Roy F. Silas was convicted of second-degree sexual abuse of a  



                                                                                                                                 

minor.  He was sentenced to a term of active imprisonment, followed by probation for  



                                                                                                                                  

10 years (with a 5-year suspended term of imprisonment).  One of Silas's conditions of  



                                                                                                                                 

probation  required  him  to  participate  in  sex  offender  treatment  as  directed  by  his  



                                                               - 3 -                                                          2602
  


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

                                                                                                                      

probation  officer,  and  not  to  discontinue  treatment  without  his  probation  officer's  



                

approval.  



                                                                                                                                 

                    After Silas was released on probation, his probation officer directed him to  



                                                                                                                      

participate in sex offender treatment.   In January 2011, Silas entered the sex offender  



                                                                                                                                 

treatment program run by the Center for Psychosocial Development.  He participated in  



                                                                                                                                  

this program for more than a year, until May 2012, when he was arrested for stealing a  



                             

laptop computer.  



                                                                                                                                

                    Severalweeks later, Silas was released from custody in connection with the  



                                                                                                                                  

theft of the laptop, and he re-entered the sex offender treatment program.   But after a  



                                                                                                                             

period of time, the director of the treatment program, Julie Holden, terminated Silas from  



                                                                                                                             

the  program.           According to the discharge summary prepared by Holden,  Silas  was  



                                                                                                                        

terminated from the program because he possessed several pornographic videos, because  



                                                                                                                              

he did not adhere  to his curfew, and because he was "unwilling[] to fully engage and  



                                       

participate in treatment".  



                                                                                                                               

                    After Silas was discharged from the sex offender treatment program, the  



                                                                                                                             

State petitioned the superior court to revoke his probation.  The State alleged that Silas  



                                                                                                                     

violated the requirement that he was "not to discontinue treatment" without his probation  



                               

officer's approval.  



                                                                                                                       

                    At  the  ensuing revocation hearing in the superior court, Silas's attorney  



                                                                                                                              

argued that Silas had not "discontinued" his sex offender treatment - rather, Silas had  



                                                                                                                                

been terminated from the program against his will.   Through his cross-examination of  



                                                                                                                          

Silas's probation officer and his cross-examination of Holden, as well as through Silas's  



                                                                                                                            

own testimony, the defense attorney tried to show that Holden had terminated Silas from  



                                                                                                                              

the program based on erroneous assumptions about Silas's probation  conditions, and  



                                                                                                                                

based on unsupported assertions about Silas's purported "unwillingness" to engage in  



                  

treatment.  



                                                              - 4 -                                                          2602
  


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

                                                                                                                       

                     With  regard  to  Silas's  possession  of  pornographic  videos,  Holden's  



                                                                                                                           

testimony  on  cross-examination  revealed  that  she  mistakenly  believed  that  Silas's  



                                                                                                            

conditions of probation prohibited him from possessing pornography.  



                                                                                                                                  

                     With regard to the curfew, Silas testified that the curfew was imposed on  



                                                                                                                                 

him to prevent him from socializing with Patsy Schreiber, his romantic partner and the  



                                                                                                                           

mother of his children.  And Holden indicated that she thought the curfew was merely  



                                                                                                                           

an  implementation  of  Silas's  conditions  of  probation.                             But  Silas's  probation  officer  



                                                                                                                            

testified that she had never prohibited Silas from having contact with Schreiber.  



                                                                                                                           

                     With regard to Silas's "hiding things" from his treatment providers, Holden  



                                                                                                                                 

asserted that Silas had engaged in acts of domestic violence while he was enrolled in the  



                                                                                                                             

treatment program.  But later, Holden essentially admitted that she was mistaken about  



        

this.  



                                                                                                                                

                     And  with  regard  to  Silas's  alleged  unwillingness  to  participate  in  the  



                                                                                                                           

program, Holden offered no concrete examples of Silas's non-participation.  She merely  



asserted:  



                      

                                                                                                        

                               I felt like we lost [Silas] in his participation in group  

                                                                                                            

                    - his honest, you know, participation in group.  ...   He did  

                                                                                                   

                     not ever really fully engage [following his return to treatment  

                                                                                                            

                     after his incarceration for the theft of the laptop].  And I felt  

                                                                                                              

                     that we had a whole series of things that were beginning to  

                                                                                                   

                     happen again, whether they were at our direction or probation  

                                                                                                             

                     or parole ... that, okay, we're at another point here where we  

                                                                                  

                     seem to have lost Roy as a client and a participant.  



                                                                                                                                

But  Silas,  for  his  part,  testified  that  he  remained  committed  to  participating  in  sex  



                                                                                                                       

offender treatment.  He contended that he stopped volunteering things in the treatment  



                                                                                                                  

sessions because, whenever he spoke, the facilitator would accuse him of lying.  



                                                               - 5 -                                                          2602
  


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

                                                                                                                          

                    In sum, the defense attorney tried to establish that most of Holden's reasons  



                                                                                                                               

for dischargingSilas from the treatment program were demonstrably unfounded, and that  



                                                                                                                                 

Silas's alleged unwillingness to participate in group therapy was a contested matter of  



               

opinion.  



                                                                                                                                

                    But during the defense attorney's cross-examination of Holden, while the  



                                                                                                                                

attorney was attempting to demonstrate that Holden lacked any substantial grounds for  



                                                                                                                               

terminating Silas from the program,  the judge interrupted the cross-examination and  



                                                                                                                        

declared that the defense attorney's questions were irrelevant to the issue of whether  



                                                                                                                      

Silas had violated his probation.                   The judge indicated that Silas violated his probation  



                                                                                                                           

because he was discharged from the treatment program - and that the reason for Silas's  



                                                                                                                     

termination from the program was irrelevant.   At the time, Silas's attorney seemingly  



                                                        

agreed with the judge's assessment:  



                      

                                                                                                            

                               The  Court:          Here's  the  problem  ...  .               This  is  an  

                                                                                                       

                    adjudication [hearing,  not a disposition hearing.]   It seems  

                                                                                                  

                    abundantly clear that he was discharged from the treatment  

                                                                                                           

                    program.  Now, if you want to talk about the reasons for that  

                                                                                                           

                    -  as  a  matter  of  disposition  -  that's  fine.                             But  for  

                                                                                                             

                    adjudication [purposes], is there - are you contesting that he  

                            

                    was discharged?  



                                                                                                             

                              Defense Attorney : Well, ... this could [be relevant] to  

                                                                                                             

                    disposition, Judge.   I mean, this is part of what you have to  

                                                                             

                    think about when you sentence him.  



                                                                                                             

                               The Court:  Right.  I get your point.  ...  But as far as  

                                          

                    adjudication, ...  



                                                                                                   

                              Defense Attorney :   No,  you're correct.                        It wouldn't  

                                                                                                   

                    have to do with whether he was discharged from the program.  



                                                               - 6 -                                                          2602
  


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

                                                                                                                       

                     However, later in the hearing, Silas's attorney argued that the evidence  



                                                                                                                             

presented at the hearing did not establish that Silas "discontinued" his treatment, either  



                                                                                                                             

in the sense of deciding to stop treatment or even in the sense of failing to make good- 



                                                                                                                                

faith efforts to participate in the treatment.                        Rather, the defense attorney argued, the  



                                                                                                                                 

evidence showed that Silas was terminated from the program without good reason -  



                                                                                                 

thus preventing Silas from fulfilling his treatment requirement.  



                                                                                                                            

                     The superior court rejected the defense attorney's position -rulinginstead  



                                                                                                                                  

that Silas's termination from the treatment program was, in and of itself, a violation of  



                                                                                                

his probation, regardless of the reason for Silas's termination:  



                       

                                                                                                            

                               The Court: [Silas's conditions of probation stated that  

                                                                                                            

                     he was to] enter and successfully complete an approved sex  

                                                                                               

                     offender treatment program ... as directed by the Department  

                                                                                                           

                     of Corrections - period.   [And] the next sentence [of that  

                                                                                                             

                     same  probation  condition]  is,  "The  defendant  is  not  to  

                                                                                                           

                     discontinue   treatment   without   written   approval   of   the  

                                                                                                              

                     probation/parole officer."  ...  I'm going to find that he had an  

                                                                             

                     obligation to continue treatment ... .  



                                                                                                                                

                     After the superior court announced this ruling, Silas's attorney noted that  



                                                                                                                                

the  court  had  failed  to  address  Silas's  argument  that  he  did  not  "discontinue"  the  



                                                                                                                         

treatment program - that he was instead terminated without good reason.  The superior  



                                                                                                                          

court responded by declaring that even if Silas was terminated from the program without  



                                                                                                                             

good reason, Silas was still in "technical violation" of his conditions of probation.  



                                                                                                                      

                     Based on the superior court's finding that Silas had violated his probation,  



                                                                                                                      

the court revoked Silas's probation and imposed 90 days of Silas's previously suspended  



                                                                                                                                   

jail time.   The superior court  also added three new probation conditions, including a  



                                                                                                                       

condition that required Silas to enter and successfully complete any  other  treatment  



                                                                                                                                  

programs approved by the Department of Corrections,  "including but not limited to  



                                                               - 7 -                                                          2602
  


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

                                                                                                                               

substance  abuse  treatment  and  domestic  violence  programming."                                          The  court  also  



                                                                                                                     

declared that this new treatment requirement could include placement "in a residential  



                                                                                                                                  

mental health or substance abuse program for a length of time determined necessary by  



                                                                                                                                 

the  appropriate  professional."                  (Emphasis  added.)              In  other  words,  Silas  could  be  



                                                                                          

confined against his will in a residential treatment facility.  



                                                                                                                      

          Silas's probation could not be revoked unless there was good cause - and  

                                                                                                         

          Silas's  termination  from  the  treatment  program  did  not  necessarily  

                                                                  

          establish good cause to revoke his probation  



                                                                                                                                 

                     In Silas's brief to this Court, he argues that he did not "discontinue" his sex  



                                                                                                                              

offender treatment; rather,  he was dismissed  from  the program involuntarily.                                               Silas  



                                                                                                                               

contends  that  the  word  "discontinue"  connotes  a  deliberate  or  willful act,  and  that  



                                                                                                                   

therefore the State had to prove that Silas deliberately or willfully ended his participation  



                                                                                                                                 

in the treatment program.  Because Silas took no affirmative action to discontinue the  



                                                                                         

treatment, he argues that he did not violate his probation.  



                                                                                                                                 

                     The State responds that the involuntariness of Silas's departure from the  



                                                                                                                                   

treatment program should not be considered a defense - for otherwise, "any degree of  



                                                                                                                      

half-hearted,  minimal[]  effort"  would  suffice  to  satisfy   a  defendant's  treatment  



                   

obligation.  



                                                                                                                              

                     We agree with the State that the involuntariness of Silas's discharge from  



                                                                                                                              

the  treatment  program  is  not,  standing alone,  a  defense  to  the  allegation  that  Silas  



                                                                                                                                   

violated  his treatment requirement.  As the supreme court explained in Trumbly, and as  



                                                                                                                                 

this  Court explained in Pulusila,  the real question is whether,  given the reasons for  



                                                                                                                     

Silas's termination from the treatment program,  the superior  court could reasonably  



                                                                                                                                  

conclude that the aims of probation could not be achieved, and that the continuation of  



                                                               - 8 -                                                          2602
  


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

                                                                                                                               

Silas's probationary status "would be at odds  with  the  need to protect society and  



                                                                    

society's interest in [Silas's] rehabilitation."  



                                                                                                                              

                    Under  Trumbly and Pulusila, the superior court could conceivably find  



                                                                                                                                

good cause to revoke Silas's probation even if Silas had been terminated  from the  



                                                                                                                                

treatment  program  involuntarily  -  if,  for  example,  despite  Silas's  best  efforts,  his  



                                                                                                                     

cognitive deficits or emotional difficulties prevented him from deriving any substantial  



                                                                                                                         

benefit from the program, and if there was no alternative treatment available to achieve  



                                                                                                                            

the court's  rehabilitative goals while leaving Silas at liberty in the community under  



                                    

probation supervision.  



                                                                                                                              

                    The superior court would have confronted a similar issue if Silas had been  



                                                                                                                           

terminated from treatment involuntarily because the program's funding was cut.  Under  



                                                                                                                              

Trumbly  and Pulusila, the question is not whether the termination of treatment was  



                                                                                                                            

Silas's fault - although Silas's fault or lack of fault would certainly be a relevant factor  



                                                                                                                       

in the court's assessment under Trumbly and Pulusila.  Rather, the question is whether,  



                                                                                                                                 

given the new situation, the superior court could reasonably conclude that the aims of  



                                                                                                                          

Silas's  probation  could  no  longer  be  achieved,  and  that  the  continuation  of  Silas's  



                                                                                                                       

probationary status "would be at odds with the need to protect society  and society's  



                                                                                                                            

interest  in  [Silas's]  rehabilitation"  -  or  whether,  instead,  alternative  methods  were  



                                                                   

available to achieve the goals of probation.  



                                                                                                                                

                    In the present case, even though Silas's attorney may have couched  his  



                                                                                                                        

argument in terms of the "involuntariness" of Silas's termination from the sex offender  



                                                                                                                                

treatment program, the record of the superior court proceedings clearly shows that the  



                                                                                                                                

defense attorney was trying to establish that Silas was terminated from the program for  



                                                                                                                                 

reasons that were unfounded - reasons that did  not reflect on Silas's amenability to  



                 

treatment.  



                                                               - 9 -                                                          2602
  


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

                                                                                                                        

                    The defense attorney's cross-examination of Julie Holden (the program  



                                                                                                                               

director), as well as Silas's own testimony at the hearing, were designed to show that  



                                                                                                                           

Holden  discharged  Silas  from  the  treatment  program  for  reasons  that  were  either  



                                                                                                                      

demonstrably wrong or, at best, were supported only by vague and unspecific assertions  



                                                                                                      

that Silas had failed to "engage" - assertions which Silas actively disputed.  



                                                                                                                           

                    For instance, Holden conceded that she had mistakenly believed that Silas's  



                                                                                                                              

possession of pornography was a violation of his conditions of probation.                                             She also  



                                                                                                                               

essentially conceded that she had been wrong in thinking that Silas had engaged in acts  



                                                                                                                                

of domestic violence during his treatment.                           And according to  Silas's testimony,  his  



                                                                                                                     

curfew was imposed under the mistaken belief that his probation officer had prohibited  



                                                                                                                        

him from socializing with his romantic partner, Patsy Schreiber.   It is unclear whether  



                                                                                                                    

Holden would have discharged Silas from the treatment program if she had understood  



                                      

the true state of affairs.  



                                                                                                                             

                    The only remaining ground that Holden offered for terminating Silas from  



                                                                                                                                

the treatment program was her assertion that Silas had not been "full[y] participating, not  



                                                                                                                             

being honest, ... [not] engaging in the therapeutic process."  But other than the three  



                                                                                                                         

discredited  instances  discussed  in  the  preceding paragraph,  Holden  offered  nothing  



                                                                                                                     

specific to back up her conclusory assertion that Silas had not been making good-faith  



                                                                                                                               

efforts to participate in treatment. And Silas (in his own testimony) actively disputed this  



                

assertion.  



                                                                                                                             

                    The superior court refused to resolve any of these issues.  Instead, the court  



                                                                                                                      

ruled that Silas's probation could be revoked if Silas was terminated from the treatment  



                                                                                                                   

program for any reason - even if the factual premises underlying Silas's termination  



                                                                             

were demonstrably mistaken or actively disputed.  



                                                                                                                        

                    This was error.   Under  Trumbly and Pulusila, the question the superior  



                                                                                                                             

court should have been asking is whether the circumstances of Silas's termination from  



                                                              -  10 -                                                         2602
  


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

the program showed that the aims of Silas's probation could not be achieved, and that                                                                                                                                                                                                                                                                                                                                                                                                                                            



 continuation of Silas's probationary status would be contrary to the need                                                                                                                                                                                                                                                                                                                                                                                                             to   protect  



 society and the need to foster Silas's rehabilitation.                                                                                                                                                                                                                                                                        



                                                                                    Because the superior court declined to resolve the factual disputes raised                                                                                                                                                                                                                                                                                                                                                       



by   Silas   and   his   attorney,   the   existing   record   fails   to   establish   whether   Silas   was  



terminated from treatment for reasons that cast substantial doubt on his amenability to                                                                                                                                                                                                                                                                                                                                                                                                                                                      



treatment and the efficacy of his continued probation.                                                                                                                                                                                                                                                                                      Thus, the record fails to support                                                                                                                              



the superior court's revocation of Silas's probation.                                                                                                                                                                                                                                                                             



                                                                                    We therefore vacate the superior court's revocation of Silas's probation.                                                                                                                                                                                                                                                                                                                                                                                                  



If the State chooses to pursue this matter further, the State must establish that there is                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 good cause to revoke Silas's probation under the legal standard that we have explained                                                                                                                                                                                                                                                                                                                                                                                                         



here.  



                                           The new conditions of probation that the superior court added when it                                                                                                                                                                                                                                                                                                                                                                                     

                                          revoked Silas's probation                                                                         



                                                                                    As we explained earlier, after the superior court revoked Silas's probation                                                                                                                                                                                                                                                                                                                                 



 for   his   alleged   act   of   "discontinuing"   sex offender                                                                                                                                                                                                                                                                             treatment   without   his   probation  



 officer's approval, the court added several new conditions to Silas's probation.                                                                                                                                                                                                                                                                                                                                                                                                                  Because  



we   are   vacating   the   superior   court's   finding   that   Silas   violated   his   probation,   any  



                                                                                                                                                                                                                                                                                                                                                                                                      1  

 immediate review of these new conditions is technically moot.                                                                                                                                                                                                                                                                                                                                             



                      1                    See  State v. Henry                                                                                             , 240 P.3d 846, 848 (Alaska App. 2010), and                                                                                                                                                                                                                               Reyes v. State                                                                            , 978   



P.2d 635, 640-41 (Alaska App. 1999), where this Court held that a sentencing judge cannot                                                                                                                                                                                                                                                                                                                                                                                                                           

 alter a defendant's conditions of probation to the defendant's                                                                                                                                                                                                                                                                                                                        detriment unless the State                                                                                                           

proves that the defendant has violated the conditions of their probation or that the defendant                                                                                                                                                                                                                                                                                                                                                                                                    

has engaged in some other post-sentencing conduct that establishes a substantial reason to                                                                                                                                                                                                                                                                                                                                                                                                                                                   

 conclude that the defendant's current conditions of probation are not adequately ensuring the                                                                                                                                                                                                                                                                                                                                                                                                                                            

 defendant's rehabilitation or adequately protecting the public.                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                              -  11 -                                                                                                                                                                                                                                                              2602
  


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

                                                                                                                             

                    We nevertheless address certain aspects of these new conditions, to avoid  



                                                                                                                         

any repetition of error should the State decide to renew its probation revocation petition  



                     

against Silas.  



                                                                                                                            

                    At the revocation hearing,  Silas's attorney challenged a purported order  



                                                                                                                     

issued by Silas's probation officer that prohibited Silas from contacting Patsy Schreiber,  



                                                                                                                               

the woman who was Silas's romantic partner and the mother of his children.  Silas and  



                                                                                                                             

Schreiber wanted to get married, but Silas told the court that they were prevented from  



                                                                                          

seeing each other because of his probation officer's order.  



                                                                                                                      

                    The State's response was that no such order existed.                                  Silas's probation  



                                                                                                                               

officer, his treatment supervisor, and his mental health provider all denied that they had  



                                                                     

ever prohibited Silas from seeing Schreiber.  



                                                                                                                           

                    Nevertheless, at the end of the hearing, the superior court denied Silas's  



                                                                                                                                

request to resume contact with Schreiber.  The court gave no reasons for its ruling.  



                                                                                                                                

                    The State concedes that the superior court's ruling was error, because the  



                                                                                                                        

court  made  no  special  findings  to  justify  this  interference  with  Silas's  familial  



                                                                                                                               

relationships.   See Dawson v. State,  894 P.2d 672, 680-81  (Alaska App. 1995), and  



                                                                                                   

Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014).  



                                                                                                                                      

                    But there is another significant problem  with the superior court's order.  



                                                                                                                     

Even though Silas alleged that his probation officer had prohibited him from contacting  



                                                                                                                          

or  socializing  with  Schreiber,  the  three  State's  witnesses  who  supervised  Silas's  



                                                                                                                           

probation  -  his  probation  officer,  his  treatment  supervisor,  and  his  mental health  



                                                                                                                              

provider - all denied that such a restriction had ever been placed on Silas.  Nor did they  



                                                                                                       

offer any reason why such a restriction should be placed on Silas.  



                                                                                                                               

                    Given  this  record,  the  superior  court  lacked  any  plausible  basis  for  



                                                                                                                             

prohibiting Silas from seeing Schreiber.  We therefore reverse the superior court's order  



                        

on this matter.  



                                                              -  12 -                                                         2602
  


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

                                                                                                                             

                    We  also  need to address the superior court's decision to impose a new  



                                                                                                                               

condition on Silas requiring him to enter any and all treatment programs approved by the  



                                                                                                                      

Department of Corrections if he is ordered to do so by his probation officer.  



                                                                                                                         

                    The superior court specified that these unnamed programs should include  



                                                                                                                         

"domestic violence programming", even though Silas's case does not appear to include  



                                                                                                                                  

any aspect of physical violence, and even though the court made no finding that such a  



                                                                                                                          

program had any connection to Silas's rehabilitation or to preventing Silas from posing  



                                                                                                                            

a danger to the public.  See Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).  



                                                                                                                            

                    If the superior court again revokes Silas's probation, and if the court again  



                                                                                                               

concludes that Silas should be required to participate in domestic violence programming,  



                                                                                                           

the court must make specific findings justifying this new requirement.  



                                                                                                                             

                    Another provision of this same new condition of probation requires Silas  



                                                                                                                             

to "enroll in a residential mental health or substance abuse program for a length of time  



                                                                                                                              

to be determined necessary by the appropriate professional."  (Emphasis added.)  It was  



                                                                                                                       

illegal for the superior court to add this new requirement to Silas's probation, because  



                                                                                                                 

the court was potentially increasing Silas's total period of incarceration.  See Christensen  



                                                                                                       

v. State,  844 P.2d 557, 559 (Alaska App. 1993); AS 12.55.100(c).  



          Conclusion  



                                                                                                                          

                    The superior court's "Disposition Order" - i.e., its order revoking Silas's  



                                                                                                                             

probation  and  adding  new  conditions  of  probation  -  is  VACATED  in  part  and  



                         

REVERSED in part.  



                                                             -  13 -                                                         2602
  

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