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Love v. State (11/30/2018) ap-2626

Love v. State (11/30/2018) ap-2626


               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@  

                                IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                               



                                                                                                                Court of Appeals No. A-11949  


                                                           Appellant,                                        Trial Court No. 3AN-13-2222 CR  


                                                                                                                               O  P  I  N  I  O  N  



                                                           Appellee.                                          No. 2626 - November 30, 2018  


                              Appeal   from  the   Superior   Court,  Third  Judicial   District,  


                              Anchorage, Michael R. Spaan, Judge.  


                              Appearances:                    Paul  E.  Malin,  under  contract  with the  Public  


                              Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  


                              Anchorage,  for  the  Appellant.                                      Saritha R.  Anjilvel,  Assistant  


                              District Attorney, Anchorage, and Craig W. Richards, Attorney  


                              General, Juneau, for the Appellee.  


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


                              Superior Court Judge.*  



                              Judge MANNHEIMER.  

                              Victoria Diamond Love assaulted three persons in another apartment in the                                                                                  

complex where she lived.                                 Following a jury trial, Love was convicted of second-, third-,                                                           

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

Constitution and Administrative Rule 24(d).                                    

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


 and fourth-degree assault                                                                                                   for slicing the fingers of one of her victims with a knife, for                                                                                                                                                                                                       

 brandishing the knife in a threatening manner, and for putting another of her victims in                                                                                                                                                                                                                                                                                                                

 fear of imminent physical injury.                                                                                                                          

                                                               The pre-sentence report in Love's case included two pages of recommended                                                                                                                                                                                                          

 conditions   of   probation.     Love's   attorney   did   not   object   to   any   of   these   proposed  

 probation conditions.                                                                             In fact, the only time the defense attorney mentioned the proposed                                                                                                                                                                                                   

 conditions of probation was when the attorney told the judge that Love did not object to                                                                                                                                                                                                                                                                                                               

 a probation condition prohibiting her from returning to the apartment building.                                                                                                                                                                                                                                                                                            

                                                               When the judge imposed Love's sentence, he did not specifically mention                                                                                                                                                                                                                                       

 all of these proposed probation conditions.                                                                                                                                                           Instead, the judge mentioned only a few of                                                                                                                                                       

 the special conditions of probation listed in the pre-sentence report.                                                                                                                                                                                                                                                But later, when the                                                         

judge issued the written judgement in Love's case, this judgement included all of the                                                                                                                                                                                                                                                                                                             

 conditions of probation proposed in the pre-sentence report.                                                                                                                                                                                                                           

                                                               In this appeal, Love challenges four of the special conditions of probation                                                                                                                                                                                                                           

 that the judge did not explicitly                                                                                                                        mention when he imposed Love's sentence.                                                                                                                                                                                   Love  

 contends that the inclusion                                                                                                      of   these four conditions in the court's written judgement                                                                                                                                                                   

 constitutes an illegal increase in her sentence - a violation of                                                                                                                                                                                                                                           the   double jeopardy   



                                                               We  reject  Love's  double  jeopardy  claim  because  the  record  of  the  


  sentencing proceedings shows that the prosecutor, the defense attorney, and the judge  


 were all operating with the understanding that, in the absence of an objection, the judge  


 would impose all of the recommended conditions of probation.  


                 1              AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.230(a)(3), respectively.                                                                                                                                                                                                                       



                                Alaska Constitution, Article I, Section 9.  

                                                                                                                                                                                                - 2 -                                                                                                                                                                                           2626

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                     At the sentencinghearing, the judge referred to the recommended probation  


conditions  as  a  group.               For example,  the judge asked whether these recommended  


probation  conditions  included  a  provision  for  mental  health  treatment.                                      When  the  


prosecutor replied that such a condition was included,  the judge  responded,  "Good,  


good."  And at another point in the sentencing hearing, after one of Love's neighbors  


expressed fear that Love might return to their apartment building after she served her  


time in prison, the judge stated that he was going to "expand" the conditions of probation  


by  adding  a  "do-not-return-to-the-apartment   condition".                                   In  addition,  during  the  


sentencing, one of the victims voiced the fear that Love would return to the apartment  


complex and  hurt her or her sister (with whom she lived).   The judge addressed this  


concern by telling the victim that the list of recommended probation conditions included  


a "no-contact" order that prohibited Love from contacting the victims in the future.  The  


judge advised  the victim that if Love contacted her sister following her release,  she  


should call the police.  


                     Based on this record, we conclude that the judge intended to impose all of  


the  conditions  of  probation  proposed  in  the  pre-sentence  report,  and  that  both  the  


prosecutor and Love's attorney understood this to be the case.  We therefore find that the  


judge  did  not  violate  the  double  jeopardy  clause  when  he  included  all  of  these  


recommended probation conditions in his written judgement, even though he did  not  


explicitly mention all of these conditions during his sentencing remarks.  


                     Love separately challenges Special Probation Condition 5, which requires  


Love  to  take  any  medication  prescribed  for  her  by  a  licensed  medical practitioner  


approved by her probation officer.  This probation condition is subject to specialscrutiny  


because it restricts Love's right of self-determination regarding medical treatment, and  


also because it potentially requires Love to take psychotropic medication  against her  

                                                               - 3 -                                                          2626

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


will.     However, Love did not object to this condition of probation, so she must now                                                                           


show plain error.                    

                          Although, on its face, the challenged probation condition applies to any and  


all medications that might be prescribed by Love's doctors, the probation condition must  


be  interpreted  in  the  context  of  Love's  case.                                            Given  this  context,  we  interpret  the  


probation condition as applying only to  mental health medication that Love's medical  


providers deem necessary for her rehabilitation and/or the safety of the public.  


                          However,  this  interpretation  brings  the  challenged  probation  condition  


squarely within the scope of our recent decision in Kozevnikoff v. State, __ P.3d __, 2018  


WL 3679314 (Alaska App. 2018).   And based  on Kozevnikoff, we conclude that the  


challenged probation condition is plain error, at least in its present form.  


                          In Kozevnikoff, this Court held that even when the record suggests that a  


defendant might need psychotropic medication, the sentencing judge must not impose  


a condition of probation that requires the defendant to take such medication against their  


will unless the judge has held a hearing "where medically informed expert testimony ...  


is presented to the judge", and where the defendant has "the opportunity to present [their]  


own expert testimony, and to argue for alternatives to any  medication  at all, or to a  


particular medication."  Id. , 2018 WL 3679314 at *2.  


                          (We also recognized that, especially when the defendant receives a lengthy  


term of imprisonment, it is often better to make this type of decision closer to the time  


when the defendant is released on probation.  Thus, a sentencing judge has the authority  


to impose a condition of probation that calls for a judicial hearing near the date of the  


       3     See Kozevnikoff v. State                     , __ P.3d __ , 2018 WL 3679314 at *1-2 (Alaska App. 2018).                                                       

See also United States v. Williams                               , 356 F.3d 1045, 1055-57 (9th Cir. 2004).                                       



             State v. Ranstead, 421 P.3d 15, 21-23 (Alaska 2018).  

                                                                                - 4 -                                                                            2626

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


defendant's  release  if,  at  that  time,  the  circumstances  appear  to  justify  compelled  


medication.  Ibid.)  


                    The record in Love's case is plainly insufficient to satisfy the procedural  


requisites set forth in Kozevnikoff .                   Accordingly,  we vacate this condition of Love's  


probation, and we direct the superior court to reconsider it.  


                    If, upon reconsideration, the superior court concludes that the facts justify  


a probation condition that could potentially require Love to take psychotropic medication  


against her will, this probation condition must be written in such a way that Love can  


seek judicial review before she is required to take the medication, and before she faces  


revocation of her probation for refusing to take the medication.   This prior  review is  


necessary  because  of  the  serious  and  lasting  side-effects  that  some  mental  health  


medications can cause. See Myers v. Alaska Psychiatric Institute, 138 P.3d 238, 246-48,  


254 (Alaska 2006).  



                    With the exception of Special Condition of Probation 5, the judgement of  


the superior court is AFFIRMED.  Special Condition 5 is VACATED, and the superior  


court  is  directed  to  reconsider  whether  this  probation  condition  is  justified.                                 If  the  


superior court finds that the probation condition is justified, the court must modify the  


probation condition so that it conforms to the requirements explained in this opinion.  


                    We do not retain jurisdiction of this case.  

                                                              - 5 -                                                          2626

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