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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
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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