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Hicks v. State (6/24/2016) ap-2506

Hicks v. State (6/24/2016) ap-2506


                 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-11826  

                                                    Appellant,                                Trial Court No. 3AN-13-11738 CR  


                                                                                                                  O P I N I O N  


                                                    Appellee.                                         No. 2506 - June 24, 2016  

                          Appeal   from   the   District   Court,   Third   Judicial   District,  


                          Anchorage, Jo-Ann Chung, Judge.  

                          Appearances:    Evan  Chyun,  Assistant  Public  Advocate,  and  

                          Richard Allen, Public Advocate, Anchorage, for the Appellant.  

                          Donald  Soderstrom,  Assistant  Attorney  General,  Office  of  


                          Special Prosecutions and Appeals, Anchorage, and Michael C.  

                          Geraghty, Attorney General, Juneau, for the Appellee.  

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

                          Judge ALLARD, writing for the Court.

                          Judge MANNHEIMER, concurring. 

                          Nathaniel Hicks Jr. was convicted of four counts of first-degree unlawful                                                     

contact for telephoning his girlfriend, N.A.                                             Hicks made these phone calls from jail,                                 

where he was awaiting trial on a charge that he assaulted N.A.                                                               

                          On appeal, Hicks argues that Alaska courts have no power to prohibit a                                                                       

defendant   in   pretrial   detention   from   contacting   the   alleged   victim   of   the   crime.   

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

 According to Hicks, courts have the authority to prohibit a defendant in pretrial detention                                                                                                                                                                                           

 from engaging in this contact only if the victim separately petitions the court to issue a                                                                                                                                                                                                                         

 domestic violence protective order under Alaska Statute 18.66.                                                                                                                                                                       

                                                 For the reasons explained here, we reject Hicks's argument.                                                                                                                                                               

                        Facts and proceedings                  

                                                 On   July   20,   2013,   Hicks   was   arraigned   on   a   misdemeanor  charge   of  

 assaulting his then-girlfriend, N.A. At Hicks's arraignment, the magistrate judge orally                                                                                                                                                                                                          

 set conditions of bail, including the condition that Hicks not contact N.A.                                                                                                                                                                                                    The judge   

 later formalized her bail order in a written order that set out Hicks's conditions of bail                                                                                      

 release. Those written bail conditions also contained the provision that Hicks have "[no]                                                                                                                                                                                                            

 direct or indirect contact" with N.A.                                                                           

                                                 However,Hicks                                             was never released on bail. Instead,                                                                                          heremained                                   in pretrial  

 detention for several months.                                                                             On October 25, 2013, Hicks called N.A. four times from                                                                                                                                      

jail, leaving messages on her voice mail.                                                                                                           Based on these phone calls, the State charged                                                                                          

 Hicks with four counts of first-degree unlawful contact.                                                                                                                                                 1  


                                                 Before trial, Hicks's attorney attacked these charges on several bases. The  


 defense attorney argued, in passing, that Alaska courts have no authority to impose no- 


 contact orders on defendants who are in pretrial detention.  But the attorney also argued  


 that Hicks had not received constitutionally adequatenoticethat theno-contactprovision  


 of the bail order applied to him when he was still in jail.  The district court ruled against  


 Hicks on these claims, and the case proceeded to trial.  

             1           AS 11.56.750(a)(1)(A).  Hicks was also charged with violating a domestic violence  

 protective order, but those charges were later dismissed because Hicks had not received  


 proper notice of the protective order.  

                                                                                                                                                    - 2 -                                                                                                                                           2506

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                                                                            At trial, the main issue before the jury was whether Hicks acted with the                                                                                                                                                                                                                                                                                                       

required   culpable   mental   state   -   that   is,   whether   he   recklessly   disregarded   the  

 circumstance that his phone calls to N.A. violated the court's no-contact order.                                                                                                                                                                                                                                                                                                                                              

                                                                            Hicks's attorney argued that Hicks had not acted in reckless disregard of   

the order because he                                                                                              reasonably believed that the order only applied after he was released                                                                                                                                                                                                                                                                       

 on bail.                                      The prosecutor argued that Hicks knew or should have known that the no-                                                                                                                                                                                                                                                                                                                                                                 

 contact bail order also applied to him in jail, and that even if he honestly believed that                                                                                                                             

the no-contact provision did not take effect until he was released on bail, Hicks's belief                                                                                                                                                                                                                                                                                                                                                                                  

was unreasonable.   

                                                                            Thejury                                         convicted Hicks ofall four                                                                                                                            counts offirst-degreeunlawful                                                                                                                                                 contact.   

He now appeals.                                

                                        Why we reject Hicks's claim that the judge had no authority to order him                                                                                                                                                                                                                                                                                                                                 

                                      not to contact N.A. while he was in pretrial detention                                                                                                                                                                                                   

                                                                            As discussed in Chief Judge Mannheimer's concurring opinion, there are                                                                                                                                                                                                                                                                                                                                         

 significant problems with the way this case was prosecuted and argued to the jury.                                                                                                                                                                                                                                                                                                                                                                                                 But  

Hicks does not raise any of these issues in this appeal.                                                                                                                                                                                                                                                                     Instead, Hicks's sole claim on                                                                                                                                  

 appeal is that, as a general matter, Alaska courts have no authority to order a defendant                                                                                                                                                                                                                                                                                                                                                   

in pretrial detention to refrain from contacting the alleged victim of the crime.                                                                                                                                                                                                                                                                                                                                      

                                                                            Hicks points out that the Alaska legislature has enacted statutes expressly                                                                                                                                                                                                                                                                                               

 authorizing trial courts to issue no-contact orders as a condition of a defendant's bail                                                                                                                                                                                                                                                                                                                                                                                             


release or as a component of a defendant's sentence.                                                                                                                                                                                                                                                                                                                                                                                                                                          

                                                                                                                                                                                                                                                                                                                But the legislature has enacted no  

                   2                  See AS 12.30.011(b)(8) (providing that a court may require a defendant to avoid all   

 contact   with   the  alleged  victim   as  a  condition  of   bail  release);  AS  12.55.015(a)(12)  

 (providing that a court may order a defendant to have no contact with a victim or witness as                                                                                                                                                                                                                                                                                                                                          

part of the defendant's sentence).  

                                                                                                                                                                                                                                         - 3 -                                                                                                                                                                                                                               2506

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

equivalent statuteexpressly                                                       authorizingcourts toimposeno-contactordersondefendants                                                                                          

in pretrial detention.         

                                        Hicks argues that, in the absence ofa statute                                                                                 expressly authorizing the court                                             

to issue a no-contact order to a defendant in pretrial detention, the courts have no power                                                                                                                                                    

to impose no-contact orders on pretrial detainees. Thus, Hicks contends, the judge's no-                                                                                                                                                               

contact order was void, and he could not lawfully be convicted of violating it.                                                                                                                                                  

                                        Hicks's argument rests on the erroneous assumption that the courts of this                                                                                                                                    

state have only the authority expressly conferred on them by statute.                                                                                                                                     But this Court and                          

the   Alaska   Supreme   Court   have   repeatedly   recognized   that   "in   the   absence   of   a  

governing statute or constitutional provision, the judiciary retains the power to declare                                                                                                                                                  

the common law and to promulgate supervisory rules of practice to govern litigation."                                                                                                                                                                          3  



                                                                                                                                                                                   In that case, the sentencing  

                                        We relied on this principle in Dobrova v. State . 


court refused to release the defendant on bail pending the defendant's sentence appeal;  


the court concluded that it had no power to grant bail release to the defendant because  


the pertinent statute spoke only of bail for defendants who appeal their convictions, not  



their sentence.                                                                                                                                                                                                                                  

                                                Even though the bail statute did not expressly authorize courts to grant  


bail release in sentence appeals, this Court held that courts had the common-law power  


to grant bail to defendants who appealed their sentences, and that, because the Alaska  


legislaturehad not limited that common-lawpowerby statute, Alaska courts retained that  

          3         Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998) (citing Bauman v. Day, 892  

P.2d 817, 828 (Alaska 1995)); see also Surina v. Buckalew, 629 P.2d 969, 973 (Alaska  


 1981); Beran v. State, 705 P.2d 1280, 1288 (Alaska App. 1985). See generally AS 01.10.010  


("So much of the common law not inconsistent with the Constitution of the State of Alaska  


or the Constitution of the United States or with any law passed by the legislature of the State  


of Alaska is the rule of decision in this state.").  

          4         674 P.2d 834 (Alaska App. 1984).  

          5         Id. at 835.  

                                                                                                                         - 4 -                                                                                                                  2506  

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


power.   On petition for hearing, thesupremecourtaffirmed                                                        our decision -emphasizing     

again that, in the absence of a statute granting or denying the right to bail pending a                                                                              

sentence appeal, "thereexists no basisfor concluding that                                                   thelegislature intended to limit                   

the inherent authority of the court."                               7  


                          This same principle of common-law authority governs our  decision in  


Hicks's case.  As the Court of Appeals for the Ninth Circuit has explained, courts have  


the inherent power to protect victims and witnesses - a power that stems from the  


"indisputably ... broad powers [of the courts] to ensure the orderly and expeditious  



progress of a [criminal] trial."                            This inherent judicial authority is not unlimited:  it must  


be exercised in a manner that does not explicitly conflict with constitutional or statutory  

        9                                                                                                                            10  


           and that does not defeat the policies embodied in those laws.                                                                  But unless the  


legislature removes or limits this common-law judicial power, courts may continue to  


exercise it.  


                          Here, there is no statute that either grants or denies Alaska courts the  


authority to impose no-contact orders on defendants in pretrial detention.  Thus, Alaska  


trial courts retain their inherent authority to issue such no-contact orders to protect  

       6     Id.  

       7     State v. Dobrova, 694 P.2d 157, 158 (Alaska 1985).  

       8     Wheeler v. United States, 640 F.2d 1116, 1122-25 (9th Cir. 1981) (quoting Bitter v.  

 United States, 389 U.S. 15, 16 (1967)).  

       9     See Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998); see also Titus v. State,  

305 P.3d 1271, 1282 (Alaska 2013); Dominguez v. State, 181 P.3d 1111, 1114 (Alaska App.  

2008); Lonis v. State , 998 P.2d 441, 445 (Alaska App. 2000); Stiegele v. State, 685  P.2d  

 1255, 1261 (Alaska App. 1984).  

       10    Lonis , 998 P.2d at 445.  

                                                                               - 5 -                                                                        2506

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


victims and other witnesses.                             Moreover, the Alaska legislature directly recognized this                                           

inherent authority in 2013 when it amended AS 11.56.750 to make it a crime for a                                                                         


defendantto             violateano-contact                   order "whileunder                  official detention."                            



discussions of that legislation indicate that legislators presumed courts had the authority  



to impose these no-contact orders. 


                         Courts  do  not  have  the  authority  to  interfere  with  decisions  that  are  


committed to the discretion of the Department of Corrections while a defendant is  



incarcerated, such as the decision to house a prisoner in a particular facility.                                                                    But the  


no-contact order in this case did not infringe on that executive authority; the order only  

       11    This authority is subject to the requirements of due process, equal protection, and             

other constitutional constraints.  See, e.g.,   Williams v. State                                            , 151 P.3d 460 (Alaska App.                  

2006) (striking down as unconstitutional bail statutory provision that prohibited all persons   

charged with domestic violence from returning to the residence of the alleged victim while                                                                

on pretrial release - without any opportunity for judicial review or any judicial findings).                                       

       12    AS 11.56.750(a)(1)(A)(iii) (effective July 1, 2013), as amended by ch. 43,  9, 48,  


SLA 2013.  

       13    See ch. 43,  9, SLA 2013; Minutes of Senate Judiciary Committee, Senate Bill 22,  


testimony of Assistant Attorney General Anne Carpeneti, Department of Law, 2:19:40 p.m.  


(Jan.  30,  2013);  Minutes  of  Senate  Judiciary  Committee,  Senate  Bill  22,  testimony  of  


Assistant Attorney General Anne Carpeneti, Department of Law, 1:45:17 p.m. (Feb. 11,  


2013);  Minutes  of  Senate  Judiciary  Committee,  Senate  Bill  22,  testimony  of  Assistant  


Attorney  General  Anne  Carpeneti,  Department  of  Law,  1:55:00  p.m.  (Feb.  18,  2013);  


Minutes of Senate Judiciary Committee, Senate Bill 22, testimony of Assistant Attorney  


General Anne Carpeneti, Department of Law, 9:51:18 a.m. (Mar. 18, 2013); Minutes of  


Senate Judiciary Committee, Senate Bill 22, testimony of Assistant Attorney General Anne  


Carpeneti, Department of Law, 2:07:24 p.m. (Mar. 22, 2013); see also January 15, 2013,  


Governor's Transmittal Letter for Senate Bill 22, 2013 Senate Journal 38 (stating the bill  


would "restrict offenders in custody from contacting a victim").  

       14    See Rust v. State, 582 P.2d 134, 137-38, modified on rehearing, 584 P.2d 38 (Alaska  


1978); see also State v. Hiser, 924 P.2d 1024, 1025 (Alaska App. 1996).  

                                                                             - 6 -                                                                      2506

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

constrained Hicks's conduct.                                        This type of no-contact order falls squarely within the                                                             

authority of the courts.            

                             Hicks also argues that imposing a no-contact order on a person who is in                                                                                      

pretrial   detention   violates   the   presumption   of   innocence   because   it   is   a   form   of  

punishment.   We find no merit to this claim.                                                     As a general matter, no-contact orders are                                            

not imposed to punish the defendant, but to protect victims or other witnesses - thus                                                                                                

ensuring public safety and the integrity of the judicial process.                                                                         15                            

                                                                                                                                               Hicks has not shown  


that the no-contact order in his case was issued to punish him, rather than to protect the  



                             For these reasons, we uphold the district court's decision that Alaska courts  


have the authority to impose no-contact orders on defendants who remain in pretrial  


detention.  We therefore affirm Hicks's unlawful contact convictions.  


                             We emphasize that we are not deciding whether the arraigning judge's  


order actually prohibited Hicks from contacting N.A. while he was in jail (as opposed  


to prohibiting him from contacting N.A. after he was released on bail), or whether Hicks  


received constitutionally adequate notice of the no-contact order, as those questions are  


not before us.  


                             As  a  general  matter,  however,  we  encourage  courts  to  ensure  that  


defendants are fully informed of the scope of any no-contact order so that it is clear to  


everyone whether the court is imposing the restriction as a condition of bail release, or  


to govern the defendant's conduct while in custody, or both.  

        15     See,  e.g.,   Goodwin  v.  Commonwealth,  477  S.E.2d  781,  784  (Va.  App.  1996)  

(concluding that a protective order was remedial and did not constitute punishment   for  

double jeopardy purposes);                                 In re Arseneau , 989 P.2d 1197, 1203-04 (Wash. App. 1999)  

(holding that a prison-imposed no-contact order was not punitive and did not violate the                           

double jeopardy or ex post facto clauses).  

                                                                                          - 7 -                                                                                   2506

----------------------- Page 8-----------------------


                      We AFFIRM the judgment of the district court.                                                                                                    

                                                                                                                     - 8 -                                                                                                                                    2506

----------------------- Page 9-----------------------

Judge MANNHEIMER, concurring.  

                                                                                    There are significant problems with Hicks's conviction in this case, but                                                                                                                                                                                                                                                                                                                                                                            

those problems are not raised in Hicks's appeal.                                                                                                                                                                                                                                                                

                                                                                    As explained in Judge Allard's lead opinion, Hicks raises one argument on                                                                                                                                                                                                                                                                                                                                                                                 

 appeal: the argument that, absent an explicit grant of authority by the legislature, a court                                                                                                                                                                                                                                                                                                                                                                                                                        

has no authority to prohibit a defendant from contacting the victim of the alleged offense                                                                                                                                                                                                                                                                                                                                                                                                                      

while the defendant is in jail awaiting trial. I join Judge Allard in rejecting that argument                                                                                                                                                                                                                                                                                                                                                                                                      

-  but I nevertheless have reservations about the validity of Hicks's conviction.                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                    The fact that Hicks's arraigning judge had the                                                                                                                                                                                                                                                           authority  to prohibit him                                                                                                             

 from contacting the alleged victim while he was in jail does not answer the question of                                                                                                                                                                                                                                                                                                                                                                                                                                                        

whether Hicks's judge                                                                                                                                actually issued                                                                                       such an order.                                                                                       I have listened                                                                                                  to the audio   

recording of Hicks's arraignment.                                                                                                                                                                                                    The arraigning judge told Hicks that one of his                                                                                                                                                                                                                                                     

 conditions of release (if he posted bail) was to refrain from contacting the alleged victim.                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

But it appears that the judge never said that this prohibition took effect immediately -                                                                                                                                                                                                                                                                                                                                                                                                                                                      

that it was not simply a condition of Hicks's release, but that it also governed Hicks's                                                                                                                                                                                                                                                                                                                                                                                                                     

 conduct while he was in jail.                                                                                                                                                         

                                                                                    Even assuming that it was the judge's                                                                                                                                                                                                intention  to have this prohibition take                                                                                                                                                                   

 effect immediately, it is doubtful that the judge's words gave Hicks reasonable notice                                                                                                                                                                                                                                                                                                                                                                                                                               

that the prohibition took effect immediately.                                                                                                                                                                                                                                            

                                                                                    This brings me to a second problem in Hick's case:                                                                                                                                                                                                                                                                                                        the prosecutor's   

 summation   to   the   jury   at   the   conclusion   of   Hicks's  trial.     In   his   summation,   the  

prosecutor expressly argued to the jury that even if the arraigning judge never directly                                                                                                                                                                                                                                                                                                                                                                                                                     

toldHicks                                                        that theprohibitionon contacting the                                                                                                                                                                                               victimtook effect immediately,                                                                                                                                                                    and even  

 if Hicks did not understand that the prohibition took effect immediately, Hicks could                                                                                                                                                                                                                                                                                                                                                                                                                                   

nevertheless properly be convicted if Hicks                                                                                                                                                                                                                                            should have known                                                                                                               that the judge would                                                                         

                                                                                                                                                                                                                                                                 - 9 -                                                                                                                                                                                                                                                     2506

----------------------- Page 10-----------------------

have wanted the prohibition to take effect immediately, regardless of what the order  


actually said.  



                              Prosecutor :          [E]ven  if  you  think  it's  possible  that  


                    somehow, in his heart of hearts, ... the defendant actually  


                    thought [that the prohibition only applied if he was released  


                    on bail], that's not enough [for him to escape conviction].  


                    He's  still  guilty.          Because  I  don't  have  to  prove  that  he  


                    actually knew [this] ... .   What I have to prove is that his  


                    behavior  grossly  deviated  from what  a reasonable person  


                    would do in the circumstances.   ...   An ordinarily prudent  


                    person, a person who uses common sense.  


                              And would a person who uses common sense hear  


                     [what the arraigning judge said] and come to the conclusion  


                     [that], as long as I'm in jail, those phone calls [to the victim]  


                    are okay?  Of course they wouldn't.  


                    The prosecutor returned to this same theme in the rebuttal portion of his  




                              Prosecutor :   Let's listen one more time to what the  


                    defendant heard  [at his arraignment,] and what the judge  




                               [A 49-second audio excerpt is played for the jury]  


                              Prosecutor :  "Don't have any contact with her."  Not  


                    "Don't have any contact with her once you get released."  


                    And that's just common sense, right?  [Because] jail is more  


                    restrictive than not being in jail.  [When] you get out of jail,  


                    you expect to have fewer restrictions on what you can do,  


                    who you can associate with, who you can call, rather than  


                    more  [restrictions].             You  heard  from  Mr.  Sherry  [of  the  


                    district attorney's office]; he's never encountered a single  


                    case where  a judge [expressly] allowed  someone to  have  


                                                             - 10 -                                                         2506

----------------------- Page 11-----------------------

                                              contact   in   jail,   but   not   while   they're   out   on   bail.     It   just  

                                              doesn't make sense.                                                    So ... it's really the only natural way to                                                                                      

                                              understand [the arraigning judge's order].                                                                                                         

                                                                      [But]   frankly,   what   [Mr.   Hicks]   personally,   indivi- 

                                              dually, subjectively thought ... is legally not very important.                                                                                                                                                 

                                              What matters is what a reasonable person would have done,                                                                                                                                  

                                              how a reasonable person would have understood that order.                                                                                                                                

                                              It's common sense.                                                  A reasonable person hears, "Don't have                                                                                   

                                              contact with her."                                              A reasonable person would know, "I'm                                                                                         

                                              not allowed to have contact with her."                                                                                                  Contacting her is a                                              

                                              gross deviation - and that's the legal standard, that's the                                                                                                                                       

                                              language you're going to hear - a gross deviation from how                                                                                                                                     

                                              a reasonable person would act.                                                                              And it's that simple.                          

                                              In other words, the prosecutor                                                                                  seemingly argued that Hicks should be                                                                                             

convicted because it was reasonable to think that Hicks's judge wanted the prohibition                                                                                                                                                                             

to   cover   Hicks's   actions   while   he   was   in   jail   - regardless                                                                                                                                            of   how   Hicks   actually  

understood the judge's order, and regardless of what the order actually provided.                                                                                                                                                                                                      1  


                                              Obviously, since Hicks did not raise these issues on appeal, the State has  


never had the opportunity to respond to them.  It would be improper to reverse Hicks's  


conviction simply because the record raises these questions.  But I would be remiss if I  


 failed to point out these significant problems in the proceedings that led to Hicks's  



            1          The proper interpretation of a court order or judgement is a question of law.                                                                                                                                                                             John v.  

Baker, 125 P.3d 323, 326 n. 7 (Alaska 2005); Bennett v. Bennett                                                                                                                                                       , 6 P.3d 724, 726 (Alaska   

2000); Luckart v. State , 270 P.3d 816, 820 (Alaska App. 2012).  

                                                                                                                                           - 11 -                                                                                                                                     2506  

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