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Beasley v. State (12/23/2015) ap-2482

Beasley v. State (12/23/2015) ap-2482


           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 @



                                                                                 Court of Appeals No. A-11698  

                                           Appellant,                          Trial Court No. 3PA-11-3312 CR  


                                                                                              O P I N I O N  


                                           Appellee.                           No. 2482 - December 23, 2015  


                     Appeal from the Superior Court, Third Judicial District, Palmer,  


                     Gregory Heath, Judge.  


                     Appearances:   Megan Webb, Assistant Public Defender, and  


                     Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                     Melissa   J.   Wininger-Howard,   Assistant   District   Attorney,  


                     Palmer, and Craig W. Richards, Attorney General, Juneau, for  

                     the Appellee.  

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


                      Superior Court Judge. *  


                     Judge SUDDOCK.  

                     Pursuant to a plea agreement for open sentencing on a single count of                                              

possession of         child pornography, Ronnie J. Beasley II received a sentence of 6 years with                                    

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

Constitution and Administrative Rule 24(d).  

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

3 years suspended.  He now contends that as a youthful offender with no prior record,  


a history of post-arrest cooperation, and an endorsement of good rehabilitative prospects  


in his presentence report, he merited a statutory minimum sentence of 4 years with 2  


years suspended.  We conclude that Beasley's sentence was within the broad discretion  


of the trial court. But in light of the State's concession that five probation conditions are  


not justified by the record as it currently stands, we remand for further proceedings as  


to all the conditions of probation imposed by the judge.  


          Background facts  


                     In  May  of  2011  a  state  trooper  initiated  an  investigation  into  internet  


distribution of child pornography.  The investigation ultimately led to Beasley.  When  


interviewed by a state trooper, Beasley initially denied using file sharing software, but  


he later admitted using it to download child pornography.  


                     Troopers then executed a search warrant on Beasley's residence.   The  


troopers seized two computers. A forensic examination of Beasley's computer revealed  


forty-twovideo files and twenty-onestill images depictingchildpornography. Onevideo  


portrayed penis-to-anus penetration ofan infant. Beasley was subsequently charged with  


one  count  of  possessing  child  pornography  and  one  count  of  distributing  child  



                     Beasley pleaded guilty to the possession charge pursuant to an agreement  


for dismissal of the distributing charge with open sentencing by the court. The State did  


not allege aggravating factors, nor did Beasley allege mitigators.  


                     The presentence report revealed that Beasley, age twenty-four, had no  


juvenile history of offenses, no prior adult criminal record, and no traffic violations. And  


while incarcerated he had no disciplinary infractions and worked as a janitor. During a  


presentence interview Beasley disclosed that he began viewing adult pornography at age  


                                                               - 2 -                                                          2482

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

fifteen, and he then progressed to child pornography via comics and drawings.                                                                                                                       He  

denied sexual attraction to children in daily life but admitted that he fantasizes about                                                                                                       

children.   He expressed confusion and dismay about his pornography addiction, and he                                                                                                                  

statedthat              hewelcomedcounseling                                      andtreatment. Thepresentencereportrecommended                                             

a statutory minimum sentence of 4 years with 2 years suspended.                                                                 

                               Although   possession   of   child   pornography   is   a   class   C   felony,   its  

punishment differs from a typical class C felony offense.                                                                               The maximum possible term                                 

of imprisonment for possession of child pornography is 99 years, and the presumptive                                                                                           


range for a first-felony offender is 2 to 12 years.                                                                                                                                  

                                                                                                                       The court is also required to impose  



at least 2 years of suspended time as well as a term of probation of at least 5 years. 


                               At the sentencing hearing, Beasley's counsel told the judge that he had no  


objection to the presentence report beyond a request to narrow a polygraph requirement,  


which the judge denied. The judge sentenced Beasley to 6 years with 3 years suspended,  


and  5  years  of  probation.                                          The  presentence  report  recommended  twelve  general  


conditions and twenty-two special conditions of probation, collectively comprising four  


pages  of  single-spaced  paragraphs.                                                      The  court  adopted  all  the  proposed  probation  


conditions without discussion.  


                The sentence was not clearly mistaken  


                                We review excessive sentence claims under a deferential clearly-mistaken  



                             This  test  is  "founded  on  two  concepts:                                                             first,  that  reasonable  judges,  


confronted with identical facts, can and will differ on what constitutes an appropriate  

        1       AS 12.55.125(i)(4).  

        2       AS 12.55.125(o).  

        3       McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).  

                                                                                                 -  3 -                                                                                           2482

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

 sentence; [and] second, that society is willing to accept these sentencing discrepancies,                                                   

 so long as a judge's sentencing decision falls within a permissible range of reasonable                                                      



                          The         sentencing               judge           did       not        adopt          the       presentence                 report's  


recommendation of the minimum term of 4 years with 2 years suspended. He found that  


Beasley's offense required a longer term of imprisonment, despite Beasley's "good  


prospects for rehabilitation."  The judge emphasized community condemnation, stating  


that society considers child pornography to be a "severe" criminal offense, with the  


 "most innocent of victims."  In particular, the judge noted the extent of Beasley's child  


pornography collection. Accordingly, he imposed 3 years to serve rather than the 2-year  


 sentence recommended in the presentence report.  


                          The record supports the judge's decision.  Considering that the sentence is  


toward the low end of the presumptive range, it is apparent that the judge took into  


 account  Beasley's  lack  of  a  criminal  record,  his  youth,  his  cooperation  with  law  


 enforcement, his acknowledgment of wrongdoing, his desire to receive treatment, and  


his "good prospects for rehabilitation."  While another judge might with equal validity  


have considered Beasley a good candidate for a minimum sentence that placed greater  


 emphasis on his rehabilitation prospects, Beasley has not shown that the sentencing  


judge imposed a sentence that was clearly mistaken.  


              The probation conditions  


                          Beasley next challenges seven of his probation conditions - one general  


 condition and six special conditions.  Under Alaska law, all probation conditions must  

       4     State v. Korkow, 314 P.3d 560, 562 (Alaska 2013) (internal quotation marks and   

 original citation omitted).  

                                                                                - 4 -                                                                          2482

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

be "reasonably related to the rehabilitation of the offender and the protection of the                                                                  


public and must not be unduly restrictive of liberty."                                                                                              

                                                                                                  The State concedes that the court  


failed to enter findings required to support five of the special conditions under this  


standard.  That concession is well-taken.  In fact, the court did not make any findings  


regarding  probation  conditions,  but  rather  adopted  wholesale  the  twelve  general  


conditions and twenty-two special conditions of probation proposed in the presentence  



                        Some of the conditions are facially unrelated to Beasley's crime and life  


circumstances or are not self-evidently applicable.  Others are overly broad or poorly  


defined.  For example, the court ordered Beasley, a non-violent offender, to submit to a  


search of his person, home, or vehicle for a deadly weapon.  But under Alaska law a  


sentencing court must express a case-specific basis for any requirement of warrantless  



submission to searches for drugs, weapons, or other items.                                                     The State agrees that this  


condition should be vacated.  


                        Similarly, the State agrees that remand is necessary for the court to revisit  


its  conditions  regarding  possession  of  any  sexually  explicit  material,  presence  in  


businesses  selling  this  material,  or  submission  to  search  for  this  broad  class  of  


contraband.  This concession is appropriate in light of our decision in Diorec v. State,  



where we held that the phrase "sexually explicit material" is unconstitutionally vague. 


And the State agrees that a requirement that Beasley disclose his criminal history to "all  


persons  with  whom  he  has  a  significant  relationship,  or  with  whom  he  is  closely  


affiliated" cannot stand as written. In Smith v. State this Court rejected a nearly identical  

      5     Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).  

      6     Id. at 1243; State v. Thomas, 133 P.3d 684, 685 (Alaska App. 2005).  

      7     Diorec v. State , 295 P.3d 409, 417 (Alaska App. 2013).  

                                                                          -  5 -                                                                     2482

----------------------- Page 6-----------------------


probation condition as impermissibly vague.                                       In particular, the Court held that the terms                     

"significant relationship" and "closely affiliated" provide "constitutionally inadequate                  

notice   of   when   an   association   with   another   person   becomes   sufficiently   'close'   or  

'significant' that a probationer will be subject to prosecution for failing to disclose his  



criminal history to the person."                         And while the State defends the superior court's alcohol  


restriction and breath analysis requirement, those conditions also requireexplicit judicial  


findings, because there is no history of substance abuse in the record.  


                        Finally, the State apparently did not file a forfeiture motion regarding the  


two seized computers.  If that matter has not yet been resolved, the court should address  


it on remand.  


                        Alaska law prohibits a sentencing judge from imposing undue restrictions  


on a probationer. Thus a judge must affirmatively review the State's proposed probation  


conditions. A judge may not delegate this responsibility to the presentence report author,  


even if the defense does not object to the proposed conditions of probation.  We are  


cognizant of the burden this requirement imposes on judges facing multiple change-of- 


plea proceedings that will collectively consume many hours.   But that burden is an  


unavoidable consequence of the Alaska Supreme Court's holding in Roman v. State that  


a  judge  may  only  impose  probation  conditions  that  are  "reasonably  related  to  the  


rehabilitation of the offender and the protection of the public and [that are not] unduly  



restrictive of liberty." 

      8     Smith v. State, 349 P.3d 1087, 1095 (Alaska App. 2015).

      9     Id.

      10    Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).

                                                                          -  6 -                                                                    2482

----------------------- Page 7-----------------------


                    This Court AFFIRMS the term of imprisonment imposed by the superior  


court.  This Court REMANDS for further proceedings regarding the imposed probation  


conditions,  to  be  held  within  sixty  days.                    If  Beasley  then  objects  to  any  imposed  


condition he shall file a brief within thirty days of the superior court's order amending  


the conditions of probation,  and  the State  shall  file responsive briefing  thirty  days  


thereafter.  This Court retains jurisdiction.  


                                                              -  7 -                                                        2482

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