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Johnson v. State (4/20/2018) ap-2596

Johnson v. State (4/20/2018) ap-2596


           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-12180  

                                            Appellant,                             Trial Court No. 3PA-12-581 CR  


                                                                                                 O P I N I O N  


                                            Appellee.                                 No. 2596 - April 20, 2018  

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


                      Kari C. Kristiansen, Judge.  

                      Appearances:              Hanley  Robinson,  Attorney  at  Law,  under  


                      contract with the Office of Public Advocacy,  Anchorage, for  


                      the Appellant.  Brittany L. Dunlop, Assistant District Attorney,  


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


                      the Appellee.  

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



                      Judge WOLLENBERG.  

                      Andrew Dennis Johnson pleaded guilty to manslaughter.                                            Pursuant to an        

agreement with the State, Johnson agreed to his term of imprisonment, but his probation                                          

conditions were left open to the superior court.                                 

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

                    On appeal, Johnson challenges several of the conditions imposed by the  


court, including conditions that regulate Johnson's contact with his wife and son.  For  

the reasons explained in this opinion, we reverse the condition regulating Johnson's  


contact with his wife, and we vacate and remand for reconsideration the condition  


regulating Johnson's contact with his son.   We affirm the alcohol- and drug-related  



          Underlying facts  


                    On March 7, 2012, Andrew Johnson and his wife, Holly Johnson, got into  


an argument.  Holly left their home and went to the home of her friend, Jessica Smith.  


                    Later that night, Johnson asked Holly's brother, David Carlton, to give him  


a ride to Smith's home. According to Johnson, he wanted to retrieve the truck Holly had  


driven to Smith's residence.  He was also concerned that Holly might use drugs with  


Smith, and he wanted Holly to return home.  


                    Carlton drove Johnson and Johnson's son, Spencer Johnson, to Smith's  


home.   At the time, Spencer was nineteen years old and had moved to Alaska two  


months earlier to live with Johnson and Holly.  Johnson said he took Spencer with him  


because he (Johnson) did not have a driver's license and he needed someone to drive his  


truck from Smith's residence.  


                    Upon arriving at Smith's home, Johnson told Carlton to stay in the car, and  


he told Spencer to start the truck belonging to Johnson and Holly.  Johnson went alone  


to the front door of the house.  Smith's fiancé, Michael Plummer, came to the door, and  


Johnson and Plummer began shoving each other.   Johnson told Plummer to tell him  


where Holly was, and Plummer questioned Johnson about who he was and what he was  


doing there.  


                                                             - 2 -                                                        2596

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

                         Seeingthealtercation, Spencer ran tothehouse to intervene, and                                                      hestabbed   

Plummer in the throat with a knife.                              Smith retrieved a gun and shot at Johnson, Spencer,                             

and Carlton (who had also entered the home), hitting Johnson.                                                        The three men fled.                     

                         Plummer died at the scene.                         


                         The State secured an indictment against Johnson for alternative counts of  


second-degreemurder, manslaughter,andcriminally negligent homicide, and two counts  


of first-degree burglary.1  


                                                 The State also charged Spencer Johnson with first-degree  


murder and related charges. Carlton was not charged.  


                         Pursuant  to  a  plea  bargain  with  the  State,  Johnson  pleaded  guilty  to  


manslaughter. The plea bargain called for Johnson to receive a sentence of 15 years with  


5 years suspended (10 years to serve) and 5 years of probation.  The State dismissed the  


remaining charges against Johnson. The agreement left Johnson's probation conditions  


open to the sentencing court.  


                         Prior to sentencing, the author of the presentence report proposed a series  


of  probation  conditions.                        These  conditions  included  (1)  a  condition  that  precluded  


Johnsonfromknowingly associating withanother felonabsent permissionby aprobation  


officer, and (2) a condition that absolutely barred Johnson from having contact with his  


son and co-defendant, Spencer Johnson, who was still awaiting trial at that time.  


                         Johnson's attorney objected to several of theseconditions. First, Johnson's  


attorney challenged the condition that restricted Johnson from knowingly associating  


with another felon, noting that the condition would restrict Johnson from having contact  

      1     AS 11.41.110(a)(3); AS 11.41.120(a)(1); AS 11.41.130; and AS 11.46.300(a)(1),                                   


                                                                            -  3 -                                                                      2596

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

with his wife, Holly (who had a felony conviction), and potentially his son, Spencer  


(who might soon become a felon).  He also challenged the condition absolutely barring  


Johnson from having contact with Spencer.  Second, Johnson's attorney challenged the  


conditions prohibiting Johnson's use and possession of alcohol and illegal controlled  


substances, as well as related conditions precluding Johnson fromresiding in a residence  


where alcohol is present or entering an establishment where alcohol is the main item for  


sale, and requiring Johnson to submit to random testing, warrantless searches for drugs  


and alcohol, and a substance abuse assessment.  


                    At sentencing, the prosecutor agreed that Holly had afelony conviction and  


that the proposed condition generally precluding Johnson from having contact with  


felons applied to contact between them. But rather than propose an exception that would  


simply permit Johnson to have contact with Holly, the State proposed that the couple  


could have contact so long as they were both "in compliance with their respective  


probation officers."  Superior Court Judge Kari C. Kristiansen adopted a version of the  


State's proposal, permitting contact between Johnson and Holly so long as "both parties  


are compliant with parole/probation."  


                    The prosecutor opposed any contact between Johnson and Spencer.  The  

prosecutor  argued  that  this  condition  was  necessary  because  Johnson  and  Spencer  


"conspired  together"  on  the  way  to  Smith's  house  to  get  Holly  back  at  any  cost.  


Johnson's attorney disputed the notion that anyone in the car was getting "tuned up" on  


the way to the Smith residence. And he argued that, in any event, a no-contact order was  


neither necessary nor the least restrictive condition, given the father-son relationship  


between Johnson and Spencer.  


                    The court ultimately deleted the condition absolutely barring Johnson from  


having contact with Spencer, explaining that once sentencing was completed in both  


cases and the defendants were out of custody, "I don't see why Mr. Johnson can't have  


                                                              - 4 -                                                          2596

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

 contact with his son."                                    But, as it had with Holly, the court made this contact contingent                                                                             

- only if "both parties are in compliance with probation/parole."                                                                                                               

                                    (The court also imposed a condition allowing Johnson to have contact with                                                                                                             

 Spencer while Spencer's case was in presentencing status, "so long as neither talks about                                                                                                                             

 the case while they are incarcerated." Johnson does not directly challenge this condition                                                                                                                  

 on appeal, and we note that Spencer has since been convicted and sentenced.                                                                                                                                2)  


                                    Johnson now appeals the challenged probation conditions.  


                   The State's jurisdictional argument  


                                    The State argues that this Court lacks jurisdiction to consider Johnson's  


 appeal.  If raised by a party or identified by the court, a potential flaw in subject-matter  


jurisdiction is a threshold issue that we must decide before addressing other issues  



presented in an appeal. 


                                    Alaska Statute 12.55.120(a) limits a criminal defendant's right of sentence  


 appeal.                 Under  AS  12.55.120(a),  a  defendant  who  has  received  a  felony  sentence  


 exceeding two years to serve or a misdemeanor sentence exceeding 120 days may appeal  


 the sentence to this Court on the ground that it is excessive "unless the sentence was  


 imposed in accordance with a plea agreement . . . and that agreement provided for  


 imposition of a specific sentence[.]"  This Court's jurisdictional statute, AS 22.07.020,  



 specifically incorporates the limitations set out in AS 12.55.120. 

         2        Spencer was convicted of second-degree murder and first-degree burglary.                                                                                                                    See State  

 v. Johnson, Judgment and Order of Commitment/Probation, 3PA-12-547 CR.  

         3        See Totemoff v. State, 905 P.2d 954, 957 (Alaska 1995).  

         4        See AS 22.07.020(b).  

                                                                                                             -  5 -                                                                                                      2596

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

                         The State argues that this Court lacks jurisdiction to hear Johnson's appeal                                                   

because he agreed to his term of imprisonment as part of a plea agreement.                                                                    The answer   

to the State's argument is found in our decision in                                             Allen v. Anchorage                   .5  


                         In  Allen ,  we  held  that  we  had  jurisdiction  to  hear  "non-term-of- 


imprisonment sentence appeals" even when the term of imprisonment imposed by the  



trial court does not exceed the threshold amount to serve set out in AS 12.55.120(a). 



Like Johnson, Allen challenged the trial court's imposition of a probation condition. 


We declared that we had jurisdiction to consider Allen's claim even though she had  


received a term of imprisonment of only 30 days to serve, well below the threshold  



amount in AS 12.55.120(a) for a misdemeanor offense.   We interpreted the threshold  


amounts             in      AS        12.55.120(a)                 (and        by       extension,              our       jurisdictional               statute  


AS  22.07.020(b))  as  solely  limiting  our  ability  to  hear  appeals  challenging  the  


excessiveness of a defendant's term of imprisonment - but placing no restrictions on  



our jurisdiction to hear appeals challenging other terms of a defendant's sentence. 



recently reaffirmed Allen 's core holding in Maguire v. State . 


                         Here, Johnson agreed to his termof imprisonment, and thus, he has no right  



to  appeal  that  term  of  imprisonment.                                        But  Johnson  is  not  appealing  his  term  of  


imprisonment; he is appealing his probation conditions, which he actively contested in  

      5     Allen v. Anchorage , 168 P.3d 890 (Alaska App. 2007).  

      6     Id. at 894.  

      7     Id. at 891.  

      8     Id. at 891-92.  

      9     Id. at 895.  

       10   Maguire v. State , 390 P.3d 1175, 1177-78 (Alaska App. 2017).  

       11    AS 12.55.120(a).  

                                                                             - 6 -                                                                          2596

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

the superior court. Consistent with our holdings in                                      Allen  and  Maguire, we conclude that                      


we have jurisdiction to decide Johnson's non-term-of-imprisonment appeal.                                                                    


            Johnson's  challenges  to  the  limitations  on  his  association  with  Holly  


            Johnson and Spencer Johnson  


                        Johnson argues that the conditions regulating his contact with his wife,  


Holly, and his son, Spencer, unduly restrict his right to familial association and therefore  


violate his constitutional rights to due process, privacy, and freedom of association.  In  


particular, Johnson challenges Special Condition No. 9, which provides that Johnson  


"may have contact with Holly Johnson [only] as long as both parties are compliant with  


parole/probation."  Johnson also challenges Special Condition No. 11, which provides  


that Johnson "may have contact with Spencer Johnson post[-]sentence [only] if both  


parties are in compliance with probation/parole."  


                        In general, a sentencing court has broad authority to fashion conditions of  


probation so long as they are "reasonably related to the rehabilitation of the offender and  



                                                                                                                                     But when a  

the protection of the public and [are] not unduly restrictive of liberty." 


probation condition restrictsanindividual'sconstitutionalrights, thatcondition is subject  



                                      Here, both Special Condition No. 9 and Special Condition No. 11  

to special scrutiny. 

      12    See,  e.g.,  Keeling  v.  State,  2017  WL  1291140  (Alaska  App.  Apr.  5,  2017)  

(unpublished)  (on  rehearing);  see  also  Alaska  R.  App.  P.  215(a)(2)  (providing  that  a  

defendant may appeal a sentence of any length on grounds other than excessiveness).  

      13    Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985) (quoting Roman v. State,  

570 P.2d 1235, 1240 (Alaska 1977) (internal quotation marks omitted).  

      14    Roman, 570 P.2d at 1241 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259,  

265 (9th Cir. 1975)); see also Diorec v. State, 295 P.3d 409, 417 (Alaska App. 2013).  

                                                                         -  7 -                                                                   2596

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

restrict Johnson's familial associations with his wife and son, and thus plainly implicate                                                       

his constitutional rights.                    15  


                         Thus, before the superior court could impose these conditions,or otherwise  


restrict Johnson's contact with Holly or Spencer, the court needed to subject these  


conditions to special scrutiny.  To survive special scrutiny, a probation condition must  


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


public" and "narrowly tailored to avoid unnecessary interference" with a defendant's  



constitutional rights.                     The court must "affirmatively consider and have good reason for  



rejecting lesser restrictions." 


             Why we reverse any limitation on Johnson's contact with Holly Johnson  


                         The  record  shows  that  the  superior  court  did  not  apply  the  necessary  


heightened level of scrutiny to the probation condition restricting Johnson's contact with  


Holly.   Rather than start with the premise that Johnson had a constitutional right to  


unrestricted contact with his wife absent a compelling reason to limit that contact, the  


court started with the premise that Holly's status as a felon permitted the court to restrict  


Johnson's contact with her, as long as that restriction did not absolutely prohibit their  


contact.  The court stated, "That's his wife, and I don't see any reason why we should  

       15   See Simants v. State                 , 329 P.3d 1033, 1038-39 (Alaska App. 2014);  Hinson v. State,  

 199 P.3d 1166, 1174 (Alaska App. 2008);   see also Dawson v. State, 894 P.2d 672, 680  

(Alaska  App.  1995)  (recognizing  that  "[a]   condition  of   probation  restricting  marital  

association plainly implicates the constitutional rights of privacy, liberty and freedom of                                                                    

association and . . . must be subjected to special scrutiny").  

       16   Simants, 329 P.3d at 1039 (internal quotations omitted).  

       17   Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); Dawson, 894 P.2d at  


                                                                             -  8 -                                                                       2596

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

further restrict             their association so long as they're compliant on probation and parole                                                  

 while they're being monitored."                              (Emphasis added.)                   

                         But when a defendant's spouse is a felon, the court must consider whether                                                

 any restriction on contact with that person, however slight, is necessary.18  If the court  


 imposes a restriction, it must "affirmatively consider and have good reason for rejecting  



 lesser restrictions." 


                         Although we would generally remand this issue to the superior court for  


 application of special scrutiny, we conclude that there is nothing in the record to support  



 a restriction on Johnson's contact with Holly.                                             The restriction appears to have been  


 based  solely  on  the fact that Holly  had  a prior,  unrelated  (and  unspecified)  felony  


 conviction.  Johnson was not charged with engaging in criminal conduct together with,  


 or against, Holly, and the prosecutor did not argue that there were any past instances of  


 assaultive or other criminal conduct between them.  The prosecutor also did not argue  


 that Holly's past conviction would actively undermine Johnson's rehabilitation, and the  


 court's comments underscore that the court itself did not believe that Johnson's contact  


 with Holly would actively undermine Johnson's rehabilitation or the safety of the public.  

       18    See Dawson, 894 P.2d at 680-81 (recognizing that "precluding association between  

 marital partners" is "an extreme restriction of liberty" and vacating a condition that precluded  


 contact between the defendant and his co-defendant wife absent probation officer approval  

 where the trial court had not narrowly tailored the restriction or explained why Dawson's  


 other probation conditions were insufficient to address the court's concerns).  

       19    Peratrovich, 903 P.2d at 1079; Dawson, 894 P.2d at 680-81.  

       20    See Dawson, 894 P.2d at 680-81.  

                                                                            -  9 -                                                                      2596

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

                         We acknowledge that restrictions on familial association may be justified                                                  


by "actual necessity and the lack of less restrictive alternatives."                                                                                          

                                                                                                                             But the State did not  


establish, the court did not identify, and the record fails to otherwise disclose, why any  


restriction on Johnson's contact with Holly was necessary in this case.  


                         Accordingly, we reverse Special Condition No. 9.  


             Why we direct the superior court to reconsider Special Condition No. 11,  


             which restricts Johnson's contact with Spencer Johnson  


                         We reach a slightly different conclusion with regard to the restriction on  


Johnson's contact with his son, Spencer.  Here, given the status of Johnson and Spencer  


as co-defendants, there may be some reason to impose a limited restriction on their  


contact. But as with the condition regulating Johnson's contact with Holly, the superior  


court failed to subject this condition to the necessary special scrutiny.  We also have  


concerns about the way the imposed restriction will operate in practice.  Accordingly,  


we vacate and remand this condition for reconsideration.  


                         Likeconditionsthatrestrictmarital association, conditions ofprobationthat  


restrict the parent-child relationship implicate constitutional rights and are subject to  


special  scrutiny  to  ensure  that  they  are  "narrowly  tailored  to  avoid  unnecessary  



interference with  family relationships."                                          Although Johnson and Spencer were co- 


defendants,  their  status  as  co-defendants  (or  felons)  alone  did  not  override  the  




importance of their familial relationship. 

      21    Id.

      22     Simants, 329 P.3d at 1038-39; see also Hinson, 199 P.3d at 1174.

      23    Dawson, 894 P.2d at 680-81.

                                                                            -  10 -                                                                        2596

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

                                                     Thesuperior court                                                       recognized thisby rejecting                                                                                acompletebar on Johnson's                                             

 contact with Spencer. But the court did not further explain why the restriction in Special                                                                                                                                                                                                                             

 Condition No. 11 was necessary, what this limitation on Johnson's contact with Spencer                                                                                                                                                                                                                              

was designed to accomplish, and whether the limitation was the least restrictive option                                                                                                                                                                                                                                    


                                                     We note that although Johnson and Spencer were co-defendants, the State                                                                                                                                                                                                     

presented no information about whether Spencer - who was nineteen years old when                                                                                                                                                                                                        

he committed this offense - had a prior criminal history, nor was there any indication                                                                                                                                                                                                                       

that Johnson and Spencer had engaged in criminal conduct together in the past or that                                                                                                                                                                                                                                                 

they were likely to do so in the future.  While the prosecutor argued at sentencing that     

 Johnson and Spencer were getting "angry" and "ramped up" on the car ride over to the                                                                                                                                                                                                                                                    

 Smith   residence,   Johnson's   attorney   disputed   the   factual   basis   of   the   prosecutor's  

 conclusion. The superior court did not expressly resolve or make factual findings on this                                                                                                                                                                                                                                             


                                                     Citing the limited nature of the restriction, the State analogizes this case to                                                                                                                                                                                                         

Diorec v. State                                               .24  


                                                                            But Diorec  is distinguishable.   In Diorec, we upheld a probation  


 condition that made contact between Diorec and his biological daughter contingent on  



 a family court judge's order in Diorec's divorce proceedings.                                                                                                                                                                                      Because Diorec had been  


 convicted of a crime against his stepdaughter, we found it reasonable for the sentencing  



 court to act to protect other members of Diorec's family.                                                                                                                                                                                        And because the divorce  


 court had already ordered that any contact between Diorec and his biological daughter  

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

              25          Id. at 414.

              26          Id.

                                                                                                                                                               -  11 -                                                                                                                                                              2596

----------------------- Page 12-----------------------

had to be approved by her counselor, the sentencing court's restriction was narrowly                                                         

tailored and avoided potentially conflicting court orders.                                             27  


                        In contrast, Johnson was not convicted of a crime against a family member.  


And there was no separate proceeding where a potentially inconsistent order had been,  


or would be, issued.  


                        Indeed, by rejecting any restrictions on Johnson's contact with Spencer  


while both were in compliance with probation and parole, the court appears to have  


concluded that such contact was not likely to cause the problems envisioned by the  


prosecutor  or  to  present  any  other  danger  to  the  public  or  undermine  Johnson's  


rehabilitation.  These findings suggest that the court may conclude, after application of  


special scrutiny, that no restriction on Johnson's contact with Spencer is necessary to  


ensure Johnson's rehabilitation and the safety of the public.  


                        If, however, the court concludes that some limitation on Johnson's contact  


with Spencer is required, the court must ensure that the limitation is the least restrictive  


necessary and that the condition does not suffer from certain problems of vagueness and  


overbreadth that are present in the current limitation.  


                        Special Condition No. 11 allows Johnson to have contact with Spencer as  


long as both parties are "in compliance with probation/parole." The court did not define  


"compliance."  It is therefore unclear whether the bar on contact is triggered by any  


violation of probation or parole, or only those violations for which the probation officer  


initiates a formal revocation proceeding.  As a result, the limitation does not adequately  


inform Johnson when he is required to cut off contact, and his contact with Spencer  


could seemingly be cut off for trivial infractions.  

      27    Id.  

                                                                         -  12 -                                                                     2596

----------------------- Page 13-----------------------

                    And by making contact dependent on the compliance of "both parties," the  


court has seemingly subjected Johnson to possible revocation and imprisonment if he  


initiates contact when Spencer is out of compliance with probation or parole, even absent  


proof that Johnson knew of Spencer's violation.  In addition to raising significant due  


process issues, sanctioning Johnson in suchcircumstances lacks any apparent connection  


to his rehabilitation.  And even if Johnson were aware of Spencer's violation status,  


limiting Johnson's ability to contact his immediate family members when he himself  


otherwise  remains  compliant  with  his  own  supervision  would  preclude  him  from  


discussing important matters with Spencer, including bail.  


                    Accordingly,  we  vacate  Special  Condition  No.  11  and  remand  for  


reconsideration.  If, on remand, the State wishes to renew its request for a restriction on  


Johnson's contact with Spencer when both men are out of custody, the superior court  


may consider whether a better defined, more fully explained restriction is necessary.  


                    Johnson  makes  one  additional  point  with  respect  to  the  conditions  


regulating his contact with Spencer. Johnson notes that his conditions fail to address the  


likely  situation  in  which  Johnson  is  released  from  custody  but  Spencer  remains  


incarcerated.  We agree that when Special Conditions Nos. 10 and 11 are read together,  


they fail to expressly account for that scenario and therefore fail to give Johnson notice  


about whether he may contact Spencer in prison during that period.  


                    We note, however, that the court's comments suggest that it did not intend  


to  limit  contact  while  at  least  one  person  was  incarcerated  (and  thus,  subject  to  


monitoring).  We agree that a restriction on contact under those circumstances is not  




                                                              -  13 -                                                         2596

----------------------- Page 14-----------------------

           Why we uphold the alcohol- and drug-related conditions  


                    Johnson's final challenge is to the alcohol- and drug-related probation  


conditions.         Specifically,  Johnson  challenges General Condition  No.  9  and Special  


Conditions Nos. 1-8, which:   (1) prohibit Johnson from possessing and consuming  


alcohol and illegal controlled substances; (2) require Johnson to submit to testing at the  


direction of a probation officer to determine his use of drugs or alcohol; (3) preclude  


Johnson from living in a residence where alcohol is present or entering an establishment  


where alcohol is the main item for sale; (4) require Johnson to obtain a substance abuse  


evaluation and complete any recommended treatment (including up to six months of  


residential treatment, if recommended); and (5) subject Johnson to warrantless searches  


of his person, personal property, residence, or any vehicle in which he is found for the  


presence  of  alcoholic  beverages  or  drug  paraphernalia.                               Johnson  argues  that  these  


conditions are not reasonably related to his rehabilitation or the protection of the public.  


                    In  imposing  these  conditions,  the  superior  court  relied  primarily  on  


Johnson's criminal history.  The court specifically found that Johnson's use of alcohol  


or controlled substances would undermine his rehabilitation, and the court concluded,  


based on this history, that testing and monitoring for these substances were reasonably  


related to Johnson's rehabilitation.  


                    At the time of sentencing, Johnson was forty-one years old.  The record  


shows that he has a lengthy criminal history of assaultive, property-related, and driving  


offenses dating back to the time he was a juvenile.  His criminal history includes two  


convictions  for  driving under  the influence and  a drug-related conviction.                                           One of  


Johnson's convictions for driving under the influence arose from events in August 2003  


in which, while intoxicated, Johnson drove over a center divider, struck another vehicle  


in oncoming traffic, and then assaulted other drivers after exiting his truck.  For this  


conduct, Johnson was convicted of second-degree robbery, second- and fourth-degree  


                                                              -  14 -                                                         2596

----------------------- Page 15-----------------------

assault, and driving under the influence.                                                                                            Shortly after his release from custody in 2007,                                                                                       

Johnsonwasarrestedfor felony                                                                           drivingunder theinfluence, felony eluding, and resisting                                                                                                   

arrest, and although he was not separately convicted for these crimes, he served his                                                                                                                                                                                               

remaining parole and probation time.                                                                                         And in 2010 and 2012, he violated his parole by                                                                                                         

consuming alcohol and using cocaine, respectively.                                                                                                                           

                                            At   the   sentencing   hearing,   Johnson   self-reported   that   he   had  recently  

engaged in alcohol treatment. Johnson acknowledged that he had a "drinking problem"                                                                                                                                                                            

in the past, but he asserted that he had "curbed" this problem "after [his] last DUI."                                                                                                                                                                                               In  

its  comments,   the superior                                                                court suggested that Johnson's recent alcohol treatment                                                                                                         

demonstrated there were still "alcohol issues at play."                                                                                                                             

                                            Given Johnson's substance-related criminal history and his recent alcohol                                                                                                                                                 

treatment, the superior court could validly conclude that conditions restricting Johnson's                                                                                                                                                                   

use of alcohol and illegal drugs, and requiring evaluation, testing, and monitoring for                                                                                                                                                                                             


alcohol and substance abuse, were reasonably related to Johnson's rehabilitation.                                                                                                                                                                                                We  


therefore  conclude  that  the  superior  court  did  not  abuse  its  discretion  in  imposing  


General Condition No. 9 and Special Conditions Nos. 1-8.  




                                            WeREVERSESpecialConditionNo. 9, which regulatesJohnson's contact  


with Holly Johnson. WeVACATESpecialCondition No.11,whichregulates Johnson's  


contact with Spencer Johnson, and remand for reconsideration.  Further, we direct the  


superior court to expressly limit General Condition No. 7 (precluding contact with  

           28         See  Phillips  v.  State,  211  P.3d  1148,  1153  (Alaska  App.  2009)  (noting  that  a  


sentencing judge may impose a probation condition authorizing warrantless searches for  


drugs  and  alcohol  "when  substance  abuse  in  the  defendant's  background  suggests  that  

searches for drugs and alcohol may further the defendant's rehabilitation").  

                                                                                                                                     -  15 -                                                                                                                                    2596

----------------------- Page 16-----------------------

felons) so that it does not restrict Johnson from having contact with Holly Johnson, and  


so that it does not restrict contact with Spencer Johnson beyond whatever limitations the  


court may impose in a revised Special Condition No. 11.  


                    With these exceptions, we AFFIRM the judgment of the superior court.  


                                                             -  16 -                                                         2596

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