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Kozevnikoff v. State (8/3/2018) ap-2611

Kozevnikoff v. State (8/3/2018) ap-2611

                                                     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:  



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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MARTIN TYLER KOZEVNIKOFF,  

                                                                    Court of Appeals No. A-11318  

                                    Appellant,                     Trial Court No. 4BE-11-453 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                        No. 2611 - August 3, 2018  



                  Appeal fr             

                              om the Superior Court, Fourth Judicial District, Bethel,  

                  Raymond M. Funk, Judge.  



                  Appearances:  Peter Kopperud, Assistant Public Advocate, and  

                                      

                  Richard Allen, Public Advocate (opening brief), and Jane B.  

                  Martinez, Law Office of Jane B. Martinez, LLC, under contract  

                                                   

                  with the Office of Public Advocacy(reply brief), Anchorage, for  

                                                                        

                  the Appellant. Tamara E. DeLucia, Assistant Attorney General,  

                                                                                         

                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  

                               

                  Attorney General, Juneau, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge SUDDOCK.  



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



Constitution and Administrative Rule 24(d).  


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

                     Martin Tyler Kozevnikoffpleadedguiltytoonecountoffirst-degreesexual                                          



                             1  

abuse of a minor.                                                                                                               

                                 Over a defense objection, the sentencing judge imposed Special  



                                                                                                                                 

Condition  of  Probation  No.  11  requiring  Kozevnikoff  to  undergo  a  mental  health  



                                                                                               

evaluation and, if recommended, to take prescribed drugs.  



                                                                                                                                 

                     Kozevnikoff challenges this condition of probation, arguing that it unduly  



                                                                                                                                 

restricts his liberty.  The State responds that the special condition is reasonably related  



                                                                                                                                

to Kozevnikoff's rehabilitation and to the protection of the public, and is not unduly  



                    

restrictive.  



                                                                                                                            

                     We find the current record insufficient to support the probation condition,  



                                                          

and we remand the case for further proceedings.  



                                                

           Background facts and proceedings  



                                                                                                                                  

                     When Kozevnikoff was twenty-one, he sexually penetrated and had sexual  



                                                                                                                                       

contact with his two sisters and an unrelated boy; the girls were three and five, and the  



                        

boy was five.  



                                                                                                                                         

                     Kozevnikoff was charged with three counts of first-degree sexual abuse of  



                                                                                                                                          

a minor and three counts of second-degree sexual abuse of a minor.   Pursuant to a  



                                                                                                                                  

Criminal Rule 11 plea agreement, he pleaded guilty to one count of first-degree sexual  



                                                                                                                                         

abuse of a minor.  Superior Court Judge  pro tem Raymond M. Funk sentenced him to  



                                                                                                                                  

35 years' incarceration with 10 years  suspended (25 years to serve) and 15 years'  



                   

probation.  



                                                                                                                             

                      Over defense objection, the judge imposed a probation condition requiring  



                                                                                                                                  

Kozevnikoff to take any medication that he might be prescribed after a mental health  



evaluation:  



      1    AS 11.41.434(a)(1).  



                                                                  - 2 -                                                             2611
  


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

                                    You must obtain a DOC approved mental health evaluation   

                                    and    follow    all    recommendations,    which    may    include  

                                    ingestion    of    medications    as    prescribed    by    a    licensed  

                                    practitioner.       You    shall    totally    abstain    from    use    and  

                                    possession   of   any   drugs   not   prescribed   by   a   licensed  

                                    practitioner. If any side effect issues cannot be resolved with                                                                                      

                                    your physician then you are entitled to have a review hearing                                                                               

                                    with the court.                          



                                    The judge acknowledged that certain psychotropic medications can have  



"terrible lifelong side effects [such as] involuntary shaking."                                                                                                     But he concluded that "a                                      



defendant with mental health issues, especially given the gravity of this kind of case,                                                                                                                                   



shouldn't be able to ... decide he just doesn't want to take them."                                                                                                             



                   Why we remand the case for further proceedings                                                   



                                    Probation conditions                                    must be"reasonablyrelatedtotherehabilitation                                                                                 ofthe   



                                                                                                                                                                                                                 2  

offender and the protection of the public and ... not unduly restrictive of liberty."                                                                                                                                Before  



                                                                                                                                                                                                                           

imposing a probation condition that restricts a constitutional right, the trial court must  



                                                                                                                                                                                                           

first  affirmatively  consider  and  have  a  good  reason  for  rejecting  less  restrictive  

alternatives.3  



                                                                                                                                                                                                                            

                                    In Myers v. Alaska Psychiatric Institute, the Alaska Supreme Court held  



                                                                                                                                                                                                          

that requiring a patient to ingest psychotropic medication infringes on a significant  



                                                                         4  

                                                                                                                                                                                                                    

liberty and privacy interest.                                                The court found that psychotropic medications are "highly  



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



         3        Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).  



         4        Myers v. Alaska Psychiatric Institute , 138 P.3d 238, 246, 248 (Alaska 2006); see also  



 Washington v. Harper,  494 U.S. 210, 221 (1990);  Baker v. State, 2003 WL 21663992, at *1  

(Alaska App. July 16, 2003) (unpublished) (citing Sell v. United States, 539 U.S. 166, 177  

                                                                                                                                                                                                      (continued...)  



                                                                                                              - 3 -                                                                                                         2611
  


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

intrusive" medications and that they have been equated with electro-convulsive therapy                                               



                                    5  

and    psycho-surgery.                                                                                                         

                                          They  "'affect  the  mind,  behavior,  intellectual  functions,  



                                                                                                                               

perception, moods, and emotions' and are known to cause a number  of potentially  



                                                                                                                          6  

                                                                                                           

devastating side effects," some of which are permanent and not treatable. 



                                                                                                                                            

                      In light of the profound effects that can accompany psychotropic drugs, the  



                                                                                                                      

Myers  court  held  that,  for  civilly  committed  mental  patients,  the  right  to  refuse  



                                                                                                                                               7  

                                                                                                                                                  

psychotropic  medication  is  a  fundamental  right,  although  not  an  absolute  one. 



                                                                                                                                             

Accordingly, any compelled ingestion of medication by a psychiatric patient must be  



                                                                                                                                   

preceded by an independent judicial determination that taking the drug is in the patient's  



                                                                                                       8  

                                                                                           

best interests, and that no less intrusive treatment will suffice. 



                                                                                                                                

                      In  United  States  v.  Williams,  the  Ninth  Circuit  reviewed  a  probation  



                                                                                                                                         

condition that, like Kozevnikoff's, provided for an independent judicial hearing only  



                                                                                                                                           

after a probationer had been ordered by a probation officer to ingest medication, and  



                                                                                                     9  

                                                                                                                                           

                                                                                                         The court held that the  

only upon a request by the probationer for such a hearing. 



                                                                                                                         10  

                                                                                                                                       

condition  fell  short  of  the  constitutionally  required  level  of  scrutiny.                                              The  court  



                                                                                                                                 

reasoned that any ingestion of medication must be based upon a medically informed  



      4    (...continued)  



(2003)).  



      5    Myers , 138 P.3d at 242.  



      6    Id.   at 241-42 (quoting  Steele v. Hamilton County Cmty. Mental Health   Bd., 736  



N.E.2d 10, 15 n.3 (Ohio 2000)).  



      7    Id. at 251-52.  



      8    Id. at 252.  



      9     United States v. Williams, 356 F.3d 1045, 1047 (9th Cir. 2004).  



      10   Id. at 1047, 1057.  



                                                                    - 4 -                                                                2611
  


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

record - a record containing an "independent and timely evaluation ... by a medical                                                                              



professional, including attention to the type of drugs proposed, their dosage, and the                                                                                      



expected duration of a person's exposure, as well as an opportunity [for the defendant]                                                                     



                                                                                                                                                                            11  

to challenge the evaluation and offer his or her own medical evidence in response."                                                                                             



                           In  Kozevnikoff's  case,  the  judge  realized  that  Kozevnikoff  must  be  

                                                                                                                                                                            



provided with an avenue for seeking an independent judicial hearing.  But the judge did  

                                                                                                                                                                            



not  provide  for  a  hearing  that preceded  any  administration  of  psychotropic  drugs.  

                                                                                                                                                                                    



Instead, he stated that Kozevnikoff would only be entitled to an independent judicial  

                                                                                                                                                                  



hearing after he complied with his probation officer's order to take a psychotropic drug,  

                                                                                                                                                                        



then suffered adverse side effects from the medication, then unsuccessfully attempted to  

                                                                                                                                                                              



"resolve" those side effects with his physician, and finally asked the court to hold a  

                                                                                                                                                                               



review hearing.  

                                   



                           The record justifies the judge's concern that psychotropic medications  

                                                                                                                                                         



might be needed, given Kozevnikoff's history of abusing young children, the fact that  

                                                                                                                                                                 



he has been diagnosed with various psychiatric conditions since boyhood, and the fact  

                                                                                                                                                                          



that he was taking psychoactive drugs at the time of sentencing.  But these facts do not  

                                                                                                                                                                            



negate the need for a hearing where medically informed expert testimony of the sort  

                                                                                                                                                                          



required by  Williams is presented to the judge.  At such a hearing, Kozevnikoff would  

                                                                                                                                                                     



have the opportunity to present his own expert testimony, and to argue for alternatives  

                                                                                                                                                          



to any medication at all, or to a particular medication.  

                                                                                       



                           We recognize the State's interest in avoiding Kozevnikoff's release to  

                                                                                                                                                                              



probation without having these issues resolved.  We addressed a similar issue in Kobuk  

                                                                                                                                                                     



v. State, where we noted that the trial court could not know at the time of sentencing  

                                                                                                                                                           



what medication might be appropriate when the defendant was ultimately released on  

                                                                                                                                                                             



       11     Id. at 1056.  



                                                                                    -  5 -                                                                               2611
  


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

                   12  

probation.               We authorized the trial court to make a provision in the conditions of                                                             



probation   for   a   judicial   hearing   near   the   date   of   the   defendant's   release   if   the  

circumstances at that time appeared to justify compelled medication.                                                           13  



                                                                                                                                                                  

                         The State suggests that such a procedure would be appropriate in this case.  



                                                                                                                                                           

We agree.  We vacate the challenged special condition of probation, and we remand the  



                                                                                                    

case for reconsideration consistent with this opinion.  



             Conclusion  



                         We  REMAND  this  case  to  the  superior  court  to  reconsider  Special  

                                                                                                                                                  



Condition of Probation No. 11.  

                                                     



      12    Kobuk v. State, 1987 WL 1357149, at *2 (Alaska App. June 3, 1987) (unpublished).  



      13    See id.  



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