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Love v. State (11/30/2018) ap-2626

Love v. State (11/30/2018) ap-2626

                                                                                       NOTICE
  

               The text           of   this opinion can be corrected before the opinion is published in the                                      

               Pacific Reporter                .   Readers are encouraged to bring typographical or other formal                                         

               errors to the attention of the Clerk of the Appellate Courts:    



                                                        303 K Street, Anchorage, Alaska  99501  

                                                                           Fax:  (907) 264-0878  

                                                              E-mail:  corrections@ akcourts.us  



                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                               



VICTORIA  DIAMOND  LOVE,  

                                                                                                                                                               

                                                                                                                Court of Appeals No. A-11949  

                                                                                                                                                                              

                                                           Appellant,                                        Trial Court No. 3AN-13-2222 CR  



                                            v.  

                                                                                                                               O  P  I  N  I  O  N  

                                                                                                                                                               

STATE  OF  ALASKA,  



                                                           Appellee.                                          No. 2626 - November 30, 2018  

                                                                                                                                                                          



                              Appeal   from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                               

                              Anchorage, Michael R. Spaan, Judge.  

                                                                                              



                              Appearances:                    Paul  E.  Malin,  under  contract  with the  Public  

                                                                                                                                                    

                              Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                            

                              Anchorage,  for  the  Appellant.                                      Saritha R.  Anjilvel,  Assistant  

                                                                                                                                               

                              District Attorney, Anchorage, and Craig W. Richards, Attorney  

                                                                                                                                                

                              General, Juneau, for the Appellee.  

                                                                                                      



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

                                                                                                                                                

                              Superior Court Judge.*  

                                                                               



                                           

                              Judge MANNHEIMER.  



                              Victoria Diamond Love assaulted three persons in another apartment in the                                                                                  



complex where she lived.                                 Following a jury trial, Love was convicted of second-, third-,                                                           



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



Constitution and Administrative Rule 24(d).                                    


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

                                                                                                                        1  

 and fourth-degree assault                                                                                                   for slicing the fingers of one of her victims with a knife, for                                                                                                                                                                                                       



 brandishing the knife in a threatening manner, and for putting another of her victims in                                                                                                                                                                                                                                                                                                                



 fear of imminent physical injury.                                                                                                                          



                                                               The pre-sentence report in Love's case included two pages of recommended                                                                                                                                                                                                          



 conditions   of   probation.     Love's   attorney   did   not   object   to   any   of   these   proposed  



 probation conditions.                                                                             In fact, the only time the defense attorney mentioned the proposed                                                                                                                                                                                                   



 conditions of probation was when the attorney told the judge that Love did not object to                                                                                                                                                                                                                                                                                                               



 a probation condition prohibiting her from returning to the apartment building.                                                                                                                                                                                                                                                                                            



                                                               When the judge imposed Love's sentence, he did not specifically mention                                                                                                                                                                                                                                       



 all of these proposed probation conditions.                                                                                                                                                           Instead, the judge mentioned only a few of                                                                                                                                                       



 the special conditions of probation listed in the pre-sentence report.                                                                                                                                                                                                                                                But later, when the                                                         



judge issued the written judgement in Love's case, this judgement included all of the                                                                                                                                                                                                                                                                                                             



 conditions of probation proposed in the pre-sentence report.                                                                                                                                                                                                                           



                                                               In this appeal, Love challenges four of the special conditions of probation                                                                                                                                                                                                                           



 that the judge did not explicitly                                                                                                                        mention when he imposed Love's sentence.                                                                                                                                                                                   Love  



 contends that the inclusion                                                                                                      of   these four conditions in the court's written judgement                                                                                                                                                                   



 constitutes an illegal increase in her sentence - a violation of                                                                                                                                                                                                                                           the   double jeopardy   



                                  2  

 clause.  



                                                               We  reject  Love's  double  jeopardy  claim  because  the  record  of  the  

                                                                                                                                                                                                                                                                                                                                                                                                 



  sentencing proceedings shows that the prosecutor, the defense attorney, and the judge  

                                                                                                                                                                                                                                                                                                                                                                                        



 were all operating with the understanding that, in the absence of an objection, the judge  

                                                                                                                                                                                                                                                                                                                                                                                        



 would impose all of the recommended conditions of probation.  

                                                                                                                                                                                                                                                                                                     



                 1              AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively.                                                                                                                                                                                                                       



                 2  

                                                                                                                                                                                                                    

                                Alaska Constitution, Article I, Section 9.  



                                                                                                                                                                                                - 2 -                                                                                                                                                                                           2626
  


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                     At the sentencinghearing, the judge referred to the recommended probation  



                                                                                                               

conditions  as  a  group.               For example,  the judge asked whether these recommended  



                                                                                                                               

probation  conditions  included  a  provision  for  mental  health  treatment.                                      When  the  



                                                                                                                         

prosecutor replied that such a condition was included,  the judge  responded,  "Good,  



                                                                                                                      

good."  And at another point in the sentencing hearing, after one of Love's neighbors  



                                                                                                                               

expressed fear that Love might return to their apartment building after she served her  



                                                                                                                      

time in prison, the judge stated that he was going to "expand" the conditions of probation  



                                                                                                                               

by  adding  a  "do-not-return-to-the-apartment   condition".                                   In  addition,  during  the  



                                                                                                                     

sentencing, one of the victims voiced the fear that Love would return to the apartment  



                                                                                                                               

complex and  hurt her or her sister (with whom she lived).   The judge addressed this  



                                                                                                                        

concern by telling the victim that the list of recommended probation conditions included  



                                                                                                                               

a "no-contact" order that prohibited Love from contacting the victims in the future.  The  



                                                                                                                               

judge advised  the victim that if Love contacted her sister following her release,  she  



                                    

should call the police.  



                                                                                                                                 

                     Based on this record, we conclude that the judge intended to impose all of  



                                                                                                                               

the  conditions  of  probation  proposed  in  the  pre-sentence  report,  and  that  both  the  



                                                                                                                                

prosecutor and Love's attorney understood this to be the case.  We therefore find that the  



                                                                                                                            

judge  did  not  violate  the  double  jeopardy  clause  when  he  included  all  of  these  



                                                                                                                               

recommended probation conditions in his written judgement, even though he did  not  



                                                                                                              

explicitly mention all of these conditions during his sentencing remarks.  



                                                                                                                         

                     Love separately challenges Special Probation Condition 5, which requires  



                                                                                                                   

Love  to  take  any  medication  prescribed  for  her  by  a  licensed  medical practitioner  



                                                                                                                         

approved by her probation officer.  This probation condition is subject to specialscrutiny  



                                                                                                                               

because it restricts Love's right of self-determination regarding medical treatment, and  



                                                                                                                               

also because it potentially requires Love to take psychotropic medication  against her  



                                                               - 3 -                                                          2626
  


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

         3  

will.     However, Love did not object to this condition of probation, so she must now                                                                           



                                  4  

show plain error.                    



                          Although, on its face, the challenged probation condition applies to any and  

                                                                                                                                                                   



all medications that might be prescribed by Love's doctors, the probation condition must  

                                                                                                                                                                



be  interpreted  in  the  context  of  Love's  case.                                            Given  this  context,  we  interpret  the  

                                                                                                                                                                   



probation condition as applying only to  mental health medication that Love's medical  

                                                                                                                                                          



providers deem necessary for her rehabilitation and/or the safety of the public.  

                                                                                                                                                           



                          However,  this  interpretation  brings  the  challenged  probation  condition  

                                                                                                                                                       



squarely within the scope of our recent decision in Kozevnikoff v. State, __ P.3d __, 2018  

                                                                                                                                                                



WL 3679314 (Alaska App. 2018).   And based  on Kozevnikoff, we conclude that the  

                                                                                                                                                                   



challenged probation condition is plain error, at least in its present form.  

                                                                                                                                 



                          In Kozevnikoff, this Court held that even when the record suggests that a  

                                                                                                                                                                        



defendant might need psychotropic medication, the sentencing judge must not impose  

                                                                                                                                                           



a condition of probation that requires the defendant to take such medication against their  

                                                                                                                                                                 



will unless the judge has held a hearing "where medically informed expert testimony ...  

                                                                                                                                                                      



is presented to the judge", and where the defendant has "the opportunity to present [their]  

                                                                                                                                                              



own expert testimony, and to argue for alternatives to any  medication  at all, or to a  

                                                                                                                                                                       



particular medication."  Id. , 2018 WL 3679314 at *2.  

                                                                                                           



                          (We also recognized that, especially when the defendant receives a lengthy  

                                                                                                                                                            



term of imprisonment, it is often better to make this type of decision closer to the time  

                                                                                                                                                                 



when the defendant is released on probation.  Thus, a sentencing judge has the authority  

                                                                                                                                                        



to impose a condition of probation that calls for a judicial hearing near the date of the  

                                                                                                                                                                   



       3     See Kozevnikoff v. State                     , __ P.3d __ , 2018 WL 3679314 at *1-2 (Alaska App. 2018).                                                       



See also United States v. Williams                               , 356 F.3d 1045, 1055-57 (9th Cir. 2004).                                       



       4  

                                                                                                                   

             State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).  



                                                                                - 4 -                                                                            2626
  


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

                                                                                                                    

defendant's  release  if,  at  that  time,  the  circumstances  appear  to  justify  compelled  



                               

medication.  Ibid.)  



                                                                                                                    

                    The record in Love's case is plainly insufficient to satisfy the procedural  



                                                                                                                         

requisites set forth in Kozevnikoff .                   Accordingly,  we vacate this condition of Love's  



                                                                                           

probation, and we direct the superior court to reconsider it.  



                                                                                                                          

                    If, upon reconsideration, the superior court concludes that the facts justify  



                                                                                                                   

a probation condition that could potentially require Love to take psychotropic medication  



                                                                                                                              

against her will, this probation condition must be written in such a way that Love can  



                                                                                                                            

seek judicial review before she is required to take the medication, and before she faces  



                                                                                                                                 

revocation of her probation for refusing to take the medication.   This prior  review is  



                                                                                                                          

necessary  because  of  the  serious  and  lasting  side-effects  that  some  mental  health  



                                                                                                                        

medications can cause. See Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 246-48,  



                               

254 (Alaska 2006).  



          Conclusion  



                                                                                                                                

                    With the exception of Special Condition of Probation 5, the judgement of  



                                                                                                                       

the superior court is AFFIRMED.  Special Condition 5 is VACATED, and the superior  



                                                                                                                              

court  is  directed  to  reconsider  whether  this  probation  condition  is  justified.                                 If  the  



                                                                                                                               

superior court finds that the probation condition is justified, the court must modify the  



                                                                                                                    

probation condition so that it conforms to the requirements explained in this opinion.  



                                                                                    

                    We do not retain jurisdiction of this case.  



                                                              - 5 -                                                          2626
  

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