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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pastos v. State (10/24/2008) sp-6319

Pastos v. State (10/24/2008) sp-6319, 194 P3d 387

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


WILLIAM PETER PASTOS, )
) Supreme Court No. S- 12745
Petitioner,)
) Court of Appeals No. A- 9425
v. )
) Trial Court No. 3AN-05- 03339 Cr.
STATE OF ALASKA, )
) O P I N I O N
Respondent.)
) No. 6319 October 24, 2008

          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from  the  District Court  of  the  State  of
          Alaska,  Third Judicial District,  Anchorage,
          Sigurd E. Murphy, Judge.

          Appearances:  Joe P. Josephson,  Josephson  &
          Associates,  P.C., Anchorage, for Petitioner.
          Blair   M.  Christensen,  Assistant  Attorney
          General,  Talis J. Colberg, Attorney General,
          Anchorage, for Respondent.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Winfree, Justices.  [Carpeneti,
          Justice, not participating.]

          MATTHEWS, Justice.


I.   INTRODUCTION
          William  Pastos  pled  no contest  to  four  counts  of
violating a protective order by engaging in unlawful contact with
his  former girlfriend, K.Y.  The district court directed him  to
report to state custody the following morning.  Until that  time,
Pastos  was  to  have no contact, direct or indirect,  with  K.Y.
After  he left the courtroom, Pastos went to a bank and deposited
a  $2,000  check that K.Y. had written him more than three  years
earlier.   Based  on Pastoss act of negotiating this  check,  the
district  court  found that Pastos violated a  condition  of  his
release by indirectly contacting K.Y.  Pastos served part of  his
previously  suspended sentence and was later released on  parole.
He appealed the district courts finding of a no-contact violation
to the court of appeals, which affirmed.  We granted his petition
for  review.   We reverse because the mere act of  negotiating  a
single   check,   without  more,  does  not  constitute   contact
proscribed by a no-contact order.
II.  FACTS AND PROCEEDINGS
          William   Pastos   and  K.Y.1  were   in   a   romantic
relationship for approximately two years.  In May 2002, near  the
outset of their relationship, Pastos offered to paint K.Y.s home.
After  the  painting was complete, K.Y. wrote a check for  $2,000
payable  to  the  order of Pastos.2  Pastos took  the  check  but
declined  to negotiate it at that time.  He attached  it  to  the
visor of his truck where it remained for over three years.
          The  relationship deteriorated, and K.Y. petitioned for
and  received a domestic violence protective order in July  2004.
The  protective  order was extended in February 2005.   In  April
2005 the State charged Pastos with fifty-three violations of  the
protective  order  for sending e-mails to  one  of  K.Y.s  e-mail
accounts.   On  August 10, 2005, District Court Judge  Sigurd  E.
Murphy  accepted  Pastoss plea of no contest to  four  counts  of
unlawful  contact in the first degree.  On each count Pastos  was
sentenced  to  360 days of prison, with 345 days suspended.   The
sentences  were consecutive, giving Pastos sixty  days  to  serve
with  1,380  days  suspended.3  Further,  there  was  a  ten-year
probation period during which time Pastos was to have no  contact
direct or indirect  with K.Y. or her mother, K.K.  When given the
option  of entering directly into state custody or reporting  the
next  morning,  Pastos elected to report the next  morning.   The
court  expressly  stated that, pending his incarceration,  Pastos
was  subject to the terms of his bail which included, among other
things,  no contact  direct or indirect  with K.Y. or her mother,
K.K.
          During  the  plea hearing, K.Y. read a  lengthy  victim
impact  statement.  K.Y. brought up the time Pastos  painted  her
home  and  asserted that Pastos wouldnt accept  the  check.   She
claimed  that  the  check  was still  in  her  possession.   This
assertion  was  incorrect.4   On  August  10,  the  day  of   his
sentencing and the day before he was to report to state  custody,
Pastos  negotiated the check, depositing the amount in  his  bank
account.  K.Y. learned that Pastos had negotiated the check after
receiving  notification from her bank that her  checking  account
was  overdrawn.   The State filed a petition  to  revoke  Pastoss
probation,5  arguing  that Pastoss act of negotiating  the  check
constituted prohibited contact with K.Y.
          In  September 2005 Judge Murphy held hearings regarding
the  States  petition.  K.Y. testified that she felt violated  by
Pastoss act.  She expressed her belief that Pastos broke into her
          home and took the check from her lockbox.6  Pastos stated that
K.Y.s  mentioning of the check during her victim impact statement
caused  him  to  remember that it was still  in  his  possession.
Pastos  explained that he negotiated the check due  to  financial
difficulties  and  that, after consulting with  his  ex-wife,  he
decided  to cash the check because he did the work.  He testified
that he thought K.Y. knew that he possessed the check.
          The  district  court  concluded  that  Pastoss  act  of
negotiating  the  check  violated  the  no-contact  term  of  his
probation.7  The court found that Pastos
          knew exactly what he was doing by cashing the
          check, that it wasnt a matter of just wanting
          the  money because he was impoverished, which
          I  assume to be true, but he knew as he  left
          the  courtroom  and went to cash  that  check
          that  it would have an effect on [K.Y.], and,
          therefore, was an indirect contact.  This  is
          not an innocent cashing of a check.  It is  a
          purposeful  action  on  his  part  to  affect
          adversely the victim in this case, and to  do
          so  within  hours after being warned  not  to
          makes  the  probation  violation  even   more
          egregious. . . .  Mr. Pastos was aware  of  a
          substantial  probability  that  his   conduct
          violated   the  order  and  would  have   the
          deleterious effect it apparently has  had  on
          the victim.
          
Under AS 11.81.900(a)(2) the courts use of the phrase aware of  a
substantial  probability should be read as  meaning  that  Pastos
acted  knowingly.   The  court ordered that  Pastos  restore  the
$2,000  to  K.Y., plus the five dollar overdraft fee.  The  court
suggested,  however,  that Pastos could  pursue  a  civil  action
against  K.Y.  based on a contract theory that he  painted  K.Y.s
home  in  exchange for $2,000.  The court also  revoked  part  of
Pastoss  probation,  and  sentenced  him  to  180  days  of   the
previously  suspended jail time (forty-five  days  for  each  no-
contest count).
          Pastos  appealed the district courts finding of  a  no-
contact  violation to the court of appeals.  The court of appeals
affirmed  the  district  courts  finding  that  Pastoss  act   of
negotiating the check constituted contact with K.Y.8   The  court
of  appeals reasoned that contact requires knowing communication,
direct  or indirect.9  Given the circumstances of this case,  the
court  of  appeals  concluded that Judge Murphy reasonably  found
that  Pastos cashed the check with the knowledge that his  action
would,  in  all probability, cause [K.Y.] emotional distress  and
fear.  Because Pastos acted with this culpable mental state,  his
act  of  cashing  the check constituted prohibited  contact  with
[K.Y.].10
          We granted Pastoss petition for review.
III. STANDARD OF REVIEW
          We review findings of fact for clear error.11  We review
legal questions de novo,12 adopt[ing] the rule of law that is most
          persuasive in light of precedent, reason, and policy.13
IV.  DISCUSSION
          Alaska  Statute 12.30.040 governs a defendants  release
after  conviction.   This  statute, which incorporates  pre-trial
terms  of  release from AS 12.30.020,14 sets forth a  variety  of
conditions of release that a court may employ.  As the  court  of
appeals  noted,  AS  11.56.757 makes it  a  crime  to  violate  a
condition  of  release.  Thus, by finding that  Pastos  contacted
K.Y.  in  violation of a condition of his release,  the  district
court implicitly found that Pastos committed a crime.15  Under AS
12.55.110 a suspended sentence can be revoked when there is  good
cause  shown;  a later criminal act is sufficient good  cause  to
revoke part or all of a suspended sentence.16
          To succeed on a petition to revoke probation, the State
must  show,  by  a  preponderance  of  the  evidence,  that   the
defendant: (1) had notice of the conditions of his probation  and
(2) violated one of these conditions.17
     A.   Pastos Did Not Contact K.Y. by Negotiating the Check.
          The  court  of appeals correctly noted that [t]he  true
source  of the problem in this case is the ambiguity of the  word
contact. 18  While various criminal statutes use the word contact,
there  is  no  relevant statutory definition of the word.19   The
district court explained to Pastos what contact meant.20  But the
district  court did not purport to employ a special understanding
of  the  word contact.  Accordingly, we treat the district courts
language as explicating our prior definition of contact.21
          In  Cooper  v.  Cooper, a case considering  a  domestic
violence   no-contact  order,22  we  adopted   a   common-meaning
definition  of  contact.  We explained that  [c]ontacting,  as  a
verb, means in common usage physically touching or communicating.23
In  cases  like  this  one where there is no  physical  touching,
nonphysical  contact  must  involve some  element  of  direct  or
indirect  communication and does not merely  mean  coming  within
view.24   Later in the opinion we stated that contacting must  be
knowing  and  rejected  an  argument  that  contacting  must   be
intentional.   Accordingly a person must know that  a  particular
result  will  occur even if his objective is not  to  cause  that
result.25
          Non-physical  contacting thus has two elements:  first,
some  communication must occur, and second, the alleged  violator
must  know  of a substantial probability that communication  will
occur  as a result of a given act.  We have previously held  that
communication  does not necessarily occur whenever  there  is  an
action that has an effect on the protected individual.26
          The  district court recognized that this case  presents
unusual  facts, but stated that, in the context of relationships,
communication can take many subtle forms.  The court  of  appeals
affirmed.27   The  State  echoes the lower  courts  reasoning  on
appeal,  arguing that Pastoss act, while an unusual form of  non-
physical  contact, was communicative and thus  violated  the  no-
contact order.
          We  conclude that Pastoss act of cashing the check  was
not  communication and thus not contact with K.Y. as a matter  of
law.   While the banks processing of the negotiated check had  an
          effect on K.Y., Pastoss act, occurring via a standardized and
impersonal  banking  transaction,  carried  little  communicative
value.   Notably, the only information conveyed was from  a  one-
time  withdrawal  from  K.Y.s account.  As such,  the  negotiated
check  merely  came into view of K.Y.  While K.Y.  mentioned  the
check during her victim impact statement, K.Y.s awareness of  the
checks  existence does not transform Pastoss act of  cashing  the
check  into  communication directed toward K.Y.  Likewise,  K.Y.s
mistaken  belief  that the check was in her possession  and  that
Pastos broke into her home and stole the check does not alter the
fact  that  Pastos  merely  cashed  a  check  that  was  in   his
possession.
          This case bears similarities to Cooper v. Cooper, where
we  held  that a husband who came into view of his wife  did  not
violate a no-contact order.28  The husband subject to a no-contact
order  in Cooper attended the Alaska Bar Convention, even  though
his  wife was also at the convention.29  She asked him to  leave,
thereby  demonstrating that his presence had an effect on  her.30
The  husband  did leave the convention at his wifes  request  but
later returned.31  We held that his return to the convention  was
not  contact because the husband merely [came] within view of the
wife.32   In this case, Pastoss act of negotiating the  check  at
best  set  off  a string of events that eventually  came  to  the
attention of K.Y.
          Although  we  hold that the district court was  clearly
erroneous in finding that Pastoss act of cashing the check was  a
forbidden contact, negotiating a check might result in a  contact
with   the   drafter  in  other  circumstances.    For   example,
information could be conveyed if an endorser wrote a  message  on
the check itself.
     B.   Pastos  Lacked Notice that His Act Would Be  Considered
          Contact with K.Y.
          
          Even  if he contacted K.Y., Pastos argues that  he  did
not  violate  the no-contact order because he lacked notice  that
his  act of negotiating the check would be deemed contact.  While
Pastos focuses on his due process rights, we note that notice  is
a  prerequisite element in any attempt to find a violation  of  a
condition of release.33  Thus, the constitutional requirement  of
due  process  is coextensive with the substantive elements  of  a
violation  of condition of release.  Though we need  not  address
this  issue  because Pastos did not contact K.Y.,  we  do  so  to
clarify this aspect of no-contact orders.
          Pastoss   argument  that  the  word  contact  was   too
indefinite  to  provide guidance for the unique circumstances  of
this  case  has  merit.  Punishment violates  the  constitutional
requirement  of  due process when it fails to give  a  person  of
ordinary  intelligence fair notice that his contemplated  conduct
is  forbidden by the statute.34  Though we will reject claims  of
inadequate notice when the conduct at issue falls squarely within
the hard core of conduct that is prohibited,35 the district court
recognized, correctly, that Pastoss case is unusual.
          Pastos  lacked  notice that his act of negotiating  the
check violated the terms of the district courts no-contact order.
          The district court perhaps put this best when it told Pastos that
he  could have asked the court about the check before cashing it.
The   State   seemingly  interprets  the  courts   after-the-fact
admonition  to  mean that Pastos, even if he disagreed  with  the
scope  of  the  district courts order, was bound  by  that  order
nonetheless.   But  Pastos has the better view.   The  order  was
vague when applied to the facts of this case.  While the district
court  could  have  clarified the order at a later  hearing,  the
potential  for clarification does not cure the vagueness  of  the
order when applied to pre-clarification conduct.
          Our decision in Crutchfield v. State provides a helpful
comparison.36  Herschel Crutchfield was convicted of operating  a
motor vehicle while under the influence of drugs based on his use
of  the prescription drug Tranxene.37  At the time, Tranxene  was
not  a  drug specifically designated under the statute,  but  the
State  argued that it was similar to other drugs listed, such  as
Valium.38  Relying on a regulation that made illegal the  use  of
drugs   similar   to  the  listed  drugs,  the   State   obtained
Crutchfields conviction.39  Crutchfield appealed, arguing that the
regulation  was  unconstitutionally vague because  it  failed  to
provide  adequate  notice of what conduct was  prohibited.40   We
agreed with Crutchfield and reversed his conviction, noting  that
Crutchfield could not reasonably understand that his contemplated
conduct was prohibited.41
          The  State  argues that the district court  used  broad
language  while  explaining the no-contact order to  Pastos,  but
this  broad  language  merely suggests  that  any  definition  of
contact  should be read broadly.  It did not provide any  content
to  the  word  contact  and  thus did  not  provide  Pastos  with
sufficient notice that his act of negotiating the check would  be
deemed criminal.
V.   CONCLUSION
          We  REVERSE the decision reached by both the  court  of
appeals and the district court.  Pastos did not contact K.Y., and
he lacked sufficient notice that his act of negotiating the check
would be treated as contact with K.Y.
_______________________________
     1    We use initials to respect K.Y.s privacy.

     2     It  is  unclear if this check was part of  a  painting
contract  or  if the check was a gift from K.Y. to  Pastos.   The
district  court  suggested that there may have  been  a  painting
contract.  K.Y.s testimony supports treating the check as a gift.
Pastoss  testimony could support treating the check as a gift  or
contract consideration.

     3     The  district court stated that Pastos had 1,330  days
suspended.  This statement appears to have been the result of  an
arithmetic error.

     4     At  the  probation revocation hearing, K.Y.  testified
that  Pastos returned the check and that it was in her possession
in  a  lockbox in her home.  K.Y. concluded that Pastos must have
broken  into  her home to have obtained and later negotiated  the
check. Pastos and one other witness testified that the check  was
kept on the visor of his truck. Pastoss ex-wife, via an offer  of
proof,  corroborated this version of events.  The district  court
accepted Pastoss account of the checks history.

     5     Because Pastos was sentenced before he negotiated  the
check,  the  district  court concluded  that  this  petition  was
properly  characterized as a petition to revoke  probation.   For
accuracy, the petition probably should have been re-characterized
as  one  for  the  revocation of a suspended  sentence  under  AS
12.55.110.

     6     The  district  court found that Pastos  possessed  the
check during all relevant times.  See supra note 4.

     7     The  court  of  appeals more accurately  characterized
Pastoss  act  as criminal contact in violation of a condition  of
his  release  under AS 11.56.757(a).  This criminal act  was  the
predicate  for  revoking  part  of  Pastoss  suspended  sentence.
Pastos v. State, 157 P.3d 1066, 1067 (Alaska App. 2007).

     8    Id. at 1071.

     9    Id. at 1070.

     10    Id. at 1067.  Later in the opinion the court emphasized
that  the  issue in this case was a question of fact because  the
context  of the case could support a conclusion that Pastos  knew
that cashing the check would be an act of communication.  Id.  at
1071.

     11     Cooper  v.  Cooper, 144 P.3d 451, 454 (Alaska  2006);
Powell v. State, 12 P.3d 1187, 1189 (Alaska App. 2000).

     12    Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).

     13    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     14    AS 12.30.040(a).

     15    Pastos, 157 P.3d at 1067.

     16     See  Wozniak  v. State, 584 P.2d 1147,  1148  (Alaska
1978).

     17     Holton v. State, 602 P.2d 1228, 1238-39 (Alaska 1979)
(Even  though the probationers liberty is conditional,  he  still
should know what to do to retain that liberty.  A probationer who
has not violated a condition of probation is entitled to keep his
liberty.).

     18    Pastos, 157 P.3d at 1068.

     19    See id. at 1068-69 & nn.1-3.

     20     The court provided numerous examples of contact  that
would violate the no-contact order:

          Direct   or   indirect  means   any   contact
          whatsoever.   Whether it  is  by  e-mail,  or
          pager,  or  telephone, or  writing,  or  even
          seeing  somebody  on the street.   If  theres
          inadvertent,  you know, youre  somewhere  way
          far  away from where you think she is and you
          see her in a store and you wave to her or nod
          to  her, thats contact.  If you have somebody
          else  contact  her for you.   Weve  even  had
          enterprising people in a bar suggest to their
          friend who was drinking with them, wouldnt it
          be  nice if X got a call telling her that  Im
          doing real well now.  Thats a suggestion  and
          thats  a contact.  If you have any reason  to
          believe that your suggestion is going to lead
          to contact through a third party.  No contact
          whatsoever.
          
     21     While  the  district court provided this  explanation
before  we  adopted  a common-meaning definition  of  contact  in
Cooper  v. Cooper, 144 P.3d 451 (Alaska 2006), our definition  of
contact  applies to the present case.  See Justice  v.  RMH  Aero
Logging,  Inc.,  42  P.3d 549, 554 (Alaska 2002)  (newly  decided
civil  cases generally apply to cases still alive at the time  of
the  decision);  Haag v. State, 117 P.3d 775,  783  (Alaska  App.
2005) (same for criminal cases).

     22    AS 18.66.100(c)(2).

     23    Cooper, 144 P.3d at 457-58.

     24    Id. at 458.

     25    Id.

     26    Id. at 457-58.

     27     See  Pastos v. State, 157 P.3d 1066, 1070-71  (Alaska
App.  2007) (finding analogous Broome v. Broome, 832 So. 2d  1247
(Miss. App. 2002), which held Ms. Broome committed a contempt  of
court  when  she presented, at one time, twenty-nine checks  made
out  to her from Mr. Broome in order to harass Mr. Broome,  whose
bank  dishonored  twenty-three of  the  checks  for  insufficient
funds).

     28    144 P.3d at 453, 457-58.

     29    Id. at 453.

     30    Id.

     31    Id.

     32    Id. at 457-58.

     33     Holton v. State, 602 P.2d 1228, 1238-39 (Alaska 1979)
(setting forth the standard to revoke probation).

     34     Crutchfield v. State, 627 P.2d 196, 199 (Alaska 1980)
(quoting  United  States v. Harriss, 347 U.S. 612,  617  (1954)).
Although  the  quotation  uses the word  statute,  this  analysis
applies to any criminal penalty.  Moreover, Pastoss probation was
revoked  based  on a finding that he violated the  conditions  of
release  statute,  AS 11.56.757(a).  Pastos v.  State,  157  P.3d
1066, 1067 (Alaska App. 2007).

     35    Turney v. State, 936 P.2d 533, 544 (Alaska 1997).

     36    627 P.2d at 196.

     37    Id. at 197.

     38    Id. at 197-98.

     39    Id.

     40    Id. at 198.

     41     Id. at 200.  We used similar reasoning and reached  a
similar conclusion in another case involving a drug statute.  See
State v. Erickson, 574 P.2d 1, 20-21 (Alaska 1978).

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