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Kozevnikoff v. State (8/3/2018) ap-2611

Kozevnikoff v. State (8/3/2018) ap-2611


         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-11318  

                                    Appellant,                     Trial Court No. 4BE-11-453 CR  


                                                                               O P I N I O N  


                                    Appellee.                        No. 2611 - August 3, 2018  

                  Appeal fr             

                              om the Superior Court, Fourth Judicial District, Bethel,  

                  Raymond M. Funk, Judge.  

                  Appearances:  Peter Kopperud, Assistant Public Advocate, and  


                  Richard Allen, Public Advocate (opening brief), and Jane B.  

                  Martinez, Law Office of Jane B. Martinez, LLC, under contract  


                  with the Office of Public Advocacy(reply brief), Anchorage, for  


                  the Appellant. Tamara E. DeLucia, Assistant Attorney General,  


                  Office of Criminal Appeals, Anchorage, and Craig W. Richards,  


                  Attorney General, Juneau, for the Appellee.  

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


                  Superior Court Judge. *  


                  Judge SUDDOCK.  

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

Constitution and Administrative Rule 24(d).  

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

                     Martin Tyler Kozevnikoffpleadedguiltytoonecountoffirst-degreesexual                                          


abuse of a minor.                                                                                                               

                                 Over a defense objection, the sentencing judge imposed Special  


Condition  of  Probation  No.  11  requiring  Kozevnikoff  to  undergo  a  mental  health  


evaluation and, if recommended, to take prescribed drugs.  


                     Kozevnikoff challenges this condition of probation, arguing that it unduly  


restricts his liberty.  The State responds that the special condition is reasonably related  


to Kozevnikoff's rehabilitation and to the protection of the public, and is not unduly  




                     We find the current record insufficient to support the probation condition,  


and we remand the case for further proceedings.  


           Background facts and proceedings  


                     When Kozevnikoff was twenty-one, he sexually penetrated and had sexual  


contact with his two sisters and an unrelated boy; the girls were three and five, and the  


boy was five.  


                     Kozevnikoff was charged with three counts of first-degree sexual abuse of  


a minor and three counts of second-degree sexual abuse of a minor.   Pursuant to a  


Criminal Rule 11 plea agreement, he pleaded guilty to one count of first-degree sexual  


abuse of a minor.  Superior Court Judge  pro tem Raymond M. Funk sentenced him to  


35 years' incarceration with 10 years  suspended (25 years to serve) and 15 years'  




                      Over defense objection, the judge imposed a probation condition requiring  


Kozevnikoff to take any medication that he might be prescribed after a mental health  


      1    AS 11.41.434(a)(1).  

                                                                  - 2 -                                                             2611

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

                                    You must obtain a DOC approved mental health evaluation   

                                    and    follow    all    recommendations,    which    may    include  

                                    ingestion    of    medications    as    prescribed    by    a    licensed  

                                    practitioner.       You    shall    totally    abstain    from    use    and  

                                    possession   of   any   drugs   not   prescribed   by   a   licensed  

                                    practitioner. If any side effect issues cannot be resolved with                                                                                      

                                    your physician then you are entitled to have a review hearing                                                                               

                                    with the court.                          

                                    The judge acknowledged that certain psychotropic medications can have  

"terrible lifelong side effects [such as] involuntary shaking."                                                                                                     But he concluded that "a                                      

defendant with mental health issues, especially given the gravity of this kind of case,                                                                                                                                   

shouldn't be able to ... decide he just doesn't want to take them."                                                                                                             

                   Why we remand the case for further proceedings                                                   

                                    Probation conditions                                    must be"reasonablyrelatedtotherehabilitation                                                                                 ofthe   


offender and the protection of the public and ... not unduly restrictive of liberty."                                                                                                                                Before  


imposing a probation condition that restricts a constitutional right, the trial court must  


first  affirmatively  consider  and  have  a  good  reason  for  rejecting  less  restrictive  



                                    In Myers v. Alaska Psychiatric Institute, the Alaska Supreme Court held  


that requiring a patient to ingest psychotropic medication infringes on a significant  



liberty and privacy interest.                                                The court found that psychotropic medications are "highly  

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

         3        Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995).  

         4        Myers v. Alaska Psychiatric Institute , 138 P.3d 238, 246, 248 (Alaska 2006); see also  

 Washington v. Harper,  494 U.S. 210, 221 (1990);  Baker v. State, 2003 WL 21663992, at *1  

(Alaska App. July 16, 2003) (unpublished) (citing Sell v. United States, 539 U.S. 166, 177  


                                                                                                              - 3 -                                                                                                         2611

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

intrusive" medications and that they have been equated with electro-convulsive therapy                                               


and    psycho-surgery.                                                                                                         

                                          They  "'affect  the  mind,  behavior,  intellectual  functions,  


perception, moods, and emotions' and are known to cause a number  of potentially  



devastating side effects," some of which are permanent and not treatable. 


                      In light of the profound effects that can accompany psychotropic drugs, the  


Myers  court  held  that,  for  civilly  committed  mental  patients,  the  right  to  refuse  



psychotropic  medication  is  a  fundamental  right,  although  not  an  absolute  one. 


Accordingly, any compelled ingestion of medication by a psychiatric patient must be  


preceded by an independent judicial determination that taking the drug is in the patient's  



best interests, and that no less intrusive treatment will suffice. 


                      In  United  States  v.  Williams,  the  Ninth  Circuit  reviewed  a  probation  


condition that, like Kozevnikoff's, provided for an independent judicial hearing only  


after a probationer had been ordered by a probation officer to ingest medication, and  



                                                                                                         The court held that the  

only upon a request by the probationer for such a hearing. 



condition  fell  short  of  the  constitutionally  required  level  of  scrutiny.                                              The  court  


reasoned that any ingestion of medication must be based upon a medically informed  

      4    (...continued)  


      5    Myers , 138 P.3d at 242.  

      6    Id.   at 241-42 (quoting  Steele v. Hamilton County Cmty. Mental Health   Bd., 736  

N.E.2d 10, 15 n.3 (Ohio 2000)).  

      7    Id. at 251-52.  

      8    Id. at 252.  

      9     United States v. Williams, 356 F.3d 1045, 1047 (9th Cir. 2004).  

      10   Id. at 1047, 1057.  

                                                                    - 4 -                                                                2611

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

record - a record containing an "independent and timely evaluation ... by a medical                                                                              

professional, including attention to the type of drugs proposed, their dosage, and the                                                                                      

expected duration of a person's exposure, as well as an opportunity [for the defendant]                                                                     


to challenge the evaluation and offer his or her own medical evidence in response."                                                                                             

                           In  Kozevnikoff's  case,  the  judge  realized  that  Kozevnikoff  must  be  


provided with an avenue for seeking an independent judicial hearing.  But the judge did  


not  provide  for  a  hearing  that preceded  any  administration  of  psychotropic  drugs.  


Instead, he stated that Kozevnikoff would only be entitled to an independent judicial  


hearing after he complied with his probation officer's order to take a psychotropic drug,  


then suffered adverse side effects from the medication, then unsuccessfully attempted to  


"resolve" those side effects with his physician, and finally asked the court to hold a  


review hearing.  


                           The record justifies the judge's concern that psychotropic medications  


might be needed, given Kozevnikoff's history of abusing young children, the fact that  


he has been diagnosed with various psychiatric conditions since boyhood, and the fact  


that he was taking psychoactive drugs at the time of sentencing.  But these facts do not  


negate the need for a hearing where medically informed expert testimony of the sort  


required by  Williams is presented to the judge.  At such a hearing, Kozevnikoff would  


have the opportunity to present his own expert testimony, and to argue for alternatives  


to any medication at all, or to a particular medication.  


                           We recognize the State's interest in avoiding Kozevnikoff's release to  


probation without having these issues resolved.  We addressed a similar issue in Kobuk  


v. State, where we noted that the trial court could not know at the time of sentencing  


what medication might be appropriate when the defendant was ultimately released on  


       11     Id. at 1056.  

                                                                                    -  5 -                                                                               2611

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


probation.               We authorized the trial court to make a provision in the conditions of                                                             

probation   for   a   judicial   hearing   near   the   date   of   the   defendant's   release   if   the  

circumstances at that time appeared to justify compelled medication.                                                           13  


                         The State suggests that such a procedure would be appropriate in this case.  


We agree.  We vacate the challenged special condition of probation, and we remand the  


case for reconsideration consistent with this opinion.  


                         We  REMAND  this  case  to  the  superior  court  to  reconsider  Special  


Condition of Probation No. 11.  


      12    Kobuk v. State, 1987 WL 1357149, at *2 (Alaska App. June 3, 1987) (unpublished).  

      13    See id.  

                                                                            -  6 -                                                                      2611

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