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Jackson v. State (1/13/2006) ap-2026

Jackson v. State (1/13/2006) ap-2026

     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

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) Court of Appeals No. A-9035
Appellant, ) Trial Court Nos. 2KB-04-852 & 853 Cr
v. )
) O P I N I O N
Appellee. ) [No. 2026 January 13, 2006]
          Appeal  from the District Court, Second  Judi
          cial  District, Kotzebue, Richard H.  Erlich,

          Appearances:   Mark Cucci,  Assistant  Public
          Defender,  Kotzebue, and  Barbara  K.  Brink,
          Public    Defender,   Anchorage,   for    the
          Appellant.   Diane  L.  Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          David  W. M rquez, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Alice Jackson pleaded no contest to two counts of minor
consuming  alcoholic beverages, AS 04.16.050,  under  the  repeat
offender  provision of the statute (subsection (c)).  In exchange
for Jacksons pleas to these two counts, the State dismissed seven
other similar pending charges.
          Before  Jackson  formally entered her  pleas,  Superior
Court  Judge  Richard H. Erlich warned Jackson and  her  attorney
that, as one of the conditions of Jacksons probation, he intended
to  require Jackson to come to court every other Friday to report
on  her  progress on probation.  The judge then gave Jackson  the
chance to withdraw from the plea bargain.
          Following a conference between Jackson and her  defense
attorney, the defense attorney told Judge Erlich that Jackson was
personally  willing to come to court every other week.   However,
the  attorney  also  told  Judge Erlich that  he  (the  attorney)
believed that the court had no authority to require Jackson to do
          The  defense attorney argued that, by requiring Jackson
to  appear  in  court  at regular intervals  and  report  on  her
progress,  the judge would violate the doctrine of separation  of
powers   by  setting himself up as a de facto probation  officer,
thus  improperly  infringing on the  powers  and  duties  of  the
Department of Corrections.
          Judge  Erlich  rejected this argument and  imposed  the
contested condition of probation.  Jackson now appeals the judges
          Under the separation of powers doctrine, [w]hen an  act
is  committed  to  executive discretion,  the  exercise  of  that
discretion  within constitutional bounds is not  subject  to  the
control or review of the courts.1  Jackson argues that the Alaska
Legislature  has entrusted oversight of the probation  system  to
the  executive branch, and that Judge Erlich encroached  on  that
executive  authority by ordering Jackson to report to  him  on  a
regular basis.  Jackson also argues that the challenged condition
of  probation has the effect of relieving the State of its burden
to  prove  any  future violation of probation,  by  impermissibly
shifting the burden to her to prove (every other Friday) that she
is in compliance with the conditions of her probation.
          We  disagree  with Jacksons premise that the  executive
branch has the exclusive authority to supervise probationers.  As
the  Alaska  Supreme Court recognized in Smith v.  Department  of
Corrections,  872  P.2d 1218, 1227 (Alaska 1994),  the  probation
function   appears   to  be  one  of  those   areas   of   shared
responsibilities among the executive and judicial branches.
          The Alaska statutes dealing with probation confirm this
view  of  the  matter.  AS 33.05.010 directs the Commissioner  of
Corrections  to  administer a probation system  and  enforce  the
probation  laws  in  the  superior court.   And  AS  33.05.020(a)
directs  the  Commissioner to appoint and make available  to  the
superior court, where necessary, qualified probation officers and
assistants.   But AS 33.05.030(a) specifies that [a]ll  probation
officers  made available to the courts under [AS 33.05] shall  be
officers  of  the superior court and subject to the authority  of
the  superior court.  And, of course, it is the sentencing judge,
and  not the Department of Corrections, who determines whether  a
defendant should receive probation,2  and who holds the  ultimate
authority  to  establish,  modify,  or  vacate  the  terms  of  a
defendants probation.3
          Turning  to  the  particular statute that  Jackson  was
convicted  of  violating, AS 04.16.050, this Court recognized  in
State  v.  Morgan  that the legislative history of  this  statute
          indicates that the legislature wanted to assure that [the] courts
were part of the monitoring process for minors who were convicted
of  possessing  or  consuming alcoholic  beverages.4   When  this
statute was debated, a representative of the Department of Health
and  Social  Services  told the Senate Judiciary  Committee  that
monitoring  is  key to the rehabilitation of minors  who  consume
alcoholic beverages; [the] goal is to [establish] monitoring  and
provide  treatment.5  And a representative of the  Department  of
Law explained to the House Judiciary Committee that [one] way  to
instill  the idea that offenders may not drink until they  become
21  is  to  place offenders on open-court, unsupervised, informal
probation  until  they  are  21.6   Thus,  it  appears  that  the
legislature  specifically  intended  that  minors  convicted   of
violating AS 04.16.050 be placed on probation supervised  by  the
          We further note that, for minors convicted of consuming
alcoholic beverages, it appears that there would be no monitoring
of  their probation if the sentencing court did not perform  this
task.   Violation  of  AS  04.16.050 is a  misdemeanor,  and  the
prosecution  takes  place in the district court.   The  probation
statutes  found in AS 33.05 uniformly speak of the Department  of
Correctionss  duty to provide probation supervision  services  to
the  superior  court.  There is no provision  of  AS  33.05  that
directs  the  Department to monitor the probation of  misdemeanor
offenders who are convicted in the district court.  Thus, even if
we assumed, for purposes of argument, that the probation statutes
presented   an  arguable  conflict  of  authority   between   the
sentencing  judge and the Department of Corrections  in  superior
court cases, there is no such conflict in district court cases.
          (The  judge in Jacksons case, Judge Richard H.  Erlich,
is  a  superior court judge; but the charges against Jackson were
filed in the district court, and Judge Erlich was functioning  as
a   district   court   judge  under  the  authority   of   Alaska
Administrative Rule 24(c).)
          Finally, even if Jackson were subject to supervision by
a  probation  officer employed by the Department of  Corrections,
Jackson  points to no authority supporting her assertion  that  a
sentencing  court violates the separation of powers  doctrine  by
requiring  a  defendant  to report to  the  court  regarding  the
defendants progress on probation.  The legislature has vested the
executive  branch  with  authority to  administer  the  probation
system.   Although  this has generally been interpreted  to  mean
that  probation officers can require probationers  to  report  to
them  on  a  regular basis, Jackson has not shown that  an  order
directing a probationer to also report to their sentencing  judge
encroaches on the Departments administrative function.
          For all of these reasons, we reject Jacksons contention
that  Judge  Erlichs  decision  to  personally  monitor  Jacksons
probation   on  a  bi-weekly  basis  violated  the  doctrine   of
separation of powers.
            Jacksons final claim is that the challenged condition
of  probation impermissibly relieved the State of its  burden  to
prove a violation of probation, and instead shifted the burden to
Jackson  to  prove  that she was abiding  by  the  conditions  of
          Jackson did not raise this claim in district court.  In
any  event,  the claim is without merit.  Judge Erlich  expressly
stated  at Jacksons sentencing hearing that, even though  he  was
going to require Jackson to make regular reports on her progress,
any  petition  to  revoke Jacksons probation  would  have  to  be
initiated by the State, not by the court.  Moreover, Judge Erlich
never  suggested  that he intended to relieve the  State  of  its
normal burden of proving any alleged violation of probation.
          The judgement of the district court is AFFIRMED.

     1Public Defender Agency v. Superior Court, 534 P.2d 947, 950
(Alaska 1975).

     2AS 12.55.080; AS 12.55.090(a).

     3AS  12.55.100;  AS  12.55.101; AS 12.55.090(b);  Hester  v.
State, 777 P.2d 217, 218-19 (Alaska App. 1989).

     4State v. Morgan, 111 P.3d 360, 362 (Alaska App. 2005).



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