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Ray v. State (9/16/2011) ap-2326

Ray v. State (9/16/2011) ap-2326

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                                                            Court of Appeals No. A-10565 
                                Appellant,                  Trial Court No. 3PA-94-975 Cr 

                                                                    O   P  I  N  I  O  N 

                                Appellee.                 No. 2326    -   September 16, 2011 

                Appeal     from   the  Superior    Court,   Third   Judicial   District, 
                Anchorage, Beverly W. Cutler, Judge. 

                Appearances:     Kelly R. Taylor, Assistant Public Defender, and 
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant. 
                Mary A. Gilson, Assistant Attorney General, Office of Special 
                Prosecutions     and  Appeals,    Anchorage,     and  John   J.  Burns, 
                Attorney General, Juneau, for the Appellee. 

                Before:     Coats,   Chief  Judge,   and  Mannheimer      and   Bolger, 

                MANNHEIMER, Judge. 

                In October 1995, Earl N. Ray was convicted of two counts of first-degree 

sexual   assault   and   one   count   of   second-degree    sexual   assault.   These   convictions 

stemmed from a criminal episode that occurred in May 1994 - approximately three 

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

months before Alaska's Sex Offender Registration Act, AS 12.63, took effect.  (The Act 
took effect on August 10, 1994.) 1 

                 Ray served thirteen years in prison, and then he was released on probation 

in September 2007.           Fifteen months later, the State filed a petition to revoke   Ray's 

probation,   alleging   that   he   violated   the   conditions   of   his   probation   by   contacting   a 

member of the victim's family. 

                 Superior   Court   Judge   Beverly   J.   Cutler   ultimately   found   that   Ray   had 

violated   the   conditions   of   his   probation.    She   sentenced   Ray   to   serve   1   year   of   his 

previously suspended jail time, and she further ordered that when Ray was released to 

probation again (after serving the year in prison), he would have to register as a sex 

offender under AS 12.63 during the remainder of his term of probation. 

                 Ray now appeals the portion of the superior court's order requiring him to 

register as a sex offender. 

                 During   her   remarks   at   Ray's   probation   revocation   sentencing   hearing, 

Judge Cutler acknowledged that sex offender registration was not "mandatory" for Ray's 

offenses, but the judge suggested that she nevertheless had the discretion to require Ray 

to register as a sex offender as one of the conditions of his probation.                  The State now 

concedes that this was wrong. 

                 We decided this point of law in Whitehead v. State, 985 P.2d 1019 (Alaska 

App.     1999).       The    defendant     in  Whitehead       was     convicted     of   coercion     under 

AS 11.41.530.   Coercion is not one of the offenses listed in AS 12.63.100 that trigger a 

defendant's   obligation   to   register   as   a   sex   offender.    Nevertheless,   because   of   the 

particular facts of Whitehead's case, the sentencing judge concluded that Whitehead 

    1   See SLA 1994, ch. 41. 

                                                   - 2 -                                                 2326 

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

should   be   required   to   register   as   a   sex   offender. 2 (As   part   of   the   plea   bargain   in 

Whitehead's case, the State dismissed several sexual assault charges that would have 
triggered   sex   offender   registration.) 3     Accordingly,   the   sentencing   judge   imposed   a 

special condition of probation which required Whitehead to comply with the registration 
requirements of AS 12.63 during his term of probation. 4 

                 We held that a sentencing judge has no authority to impose such a condition 

of probation: 

                         In a series of cases starting with Boyne v. State, [586 
                 P.2d 1250 (Alaska 1978),] the Alaska Supreme Court and 
                 this court have held that sentencing courts must have explicit 
                 legislative    authorization      before    imposing      conditions     of 
                 probation that fundamentally alter the nature of the probation. 
                 For instance, in Boyne itself, the supreme court held that a 
                 sentencing court may not impose imprisonment as a condition 
                 of SIS probation.      [Id. at 1251.]    ... 

                         Sex offender registration is obviously less burdensome 
                 than incarceration.      We are mindful that probationers have 
                 traditionally been required to apprise their probation officers 
                 of their place of residence and their place of employment. 
                 Nevertheless,   sex      offender    registration   entails   more    than 
                 simply informing a probation officer of one's residence and 
                 place of employment.         Under the sex offender registration 
                 law,   a   defendant   must   supply   this   information   (as   well   as 
                 other personal information) for dissemination to the public at 

    2    Whitehead, 985 P.2d at 1020. 

    3   Ibid. 

    4   Ibid. 

                                                   - 3 -                                              2326 

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

                         ...  [T]he     Alaska    Legislature    specifically    amended 
                 Criminal Rule 11(c) to require judges to inform defendants 
                 about     the  sex    offender    registration    requirement      before 
                 accepting a guilty plea to a sex offense. [citation omitted] We 
                 inferred,   from   the   legislature's   action,   that   the   legislature 
                 viewed sex offender registration as a serious consequence of 
                 conviction   and   "that   the   legislature   believed   it   would   be 
                 unfair to allow defendants to plead guilty to a sex offense 
                 without first telling them about the registration requirement." 
                 [Peterson v. State, 988 P.2d 109, 118 (Alaska App. 1999).] 
                 For similar reasons, we [now] conclude that we should not 
                 construe [the probation statutes] to allow sentencing judges 
                 to   impose     sex   offender     registration    as   a  condition     of 
                 probation when the legislature has not expressly authorized 
                 sentencing courts to exercise this power. 

Whitehead, 985 P.2d at 1021 (text of footnotes included as bracketed text). 

                 Nine years after we issued our decision in Whitehead, the Alaska Supreme 

Court issued its decision in Doe v. State, 189 P.3d 999 (Alaska 2008).                       In Doe, the 

supreme court ruled that sex offender registration is a criminal punishment for purposes 

of   Article   I,   Section      15   of   our   state  constitution   -  the   provision   that   bars   the 
legislature from enacting ex post facto crimes or punishments. 5                   In other words, the 

supreme court held that it is unconstitutional to apply the Sex Offender Registration Act 

to defendants like Ray whose crimes were committed before the Act took effect. 

                 The supreme court's decision in Doe is significant here, not for the court's 

ultimate conclusion that sex offender registration constitutes punishment for ex post facto 

purposes, but rather for the supreme court's reasoning.  In reaching the conclusion that 

sex offender registration constitutes "punishment", the supreme court relied heavily on 

the fact that sex offender registration imposes "significant and intrusive" obligations on 

    5   Doe, 189 P.3d at 1019. 

                                                   - 4 -                                                2326 

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

a defendant, as well as a "severe stigma".          Doe, 189 P.3d at 1009.        The supreme court 

further    noted   that   registration   exposes    defendants     to  "profound     humiliation     and 

community-wide ostracism", with the attendant possibility that the defendant "will be 

denied employment and housing opportunities as a result of community hostility".  Id. 

at 1009-1010. 

                The   supreme   court's   analysis   in  Doe   lends   significant   strength   to   our 

decision in  Whitehead - our conclusion that requiring a defendant to register as a sex 

offender     as  a  condition    of  their  probation    fundamentally      alters  the  nature   of  the 

probation, and that therefore a sentencing court has no power to impose such a condition 

of probation in the absence of express statutory authority. 

                We therefore re-affirm our holding in  Whitehead - and, on the basis of 

Whitehead,   we   accept   the   State's   concession   of   error   in   this   case. The   challenged 

condition of probation is unlawful, and that aspect of the superior court's sentencing 

decision is REVERSED. 

                                                 - 5 -                                              2326
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