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Charles Jr. v. State (12/28/2018) ap-2630

Charles Jr. v. State (12/28/2018) ap-2630


         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-12119  

                                    Appellant,                     Trial Court No. 1KE-93-730 CR  


                                                                               O P I N I O N  


                                    Appellee.                     No. 2630 - December 28, 2018  

                  Appeal f          

                             rom the Superior Court, First Judicial District, Juneau,  

                  Philip M. Pallenberg, Judge.  

                  Appearances:        Timothy  Ayer  (opening  and  reply  brief)  and  


                  Callie  Patton  Kim  (supplemental  brief  and  oral  argument),  


                  Assistant   Public   Defenders,   and   Quinlan   Steiner,   Public  


                  Defender, Anchorage, for the Appellant.  Terisia K. Chleborad,  


                  Assistant   Attorney  General,   Office   of   Criminal   Appeals,  


                  Anchorage,  and  Craig  W.  Richards  and  Jahna  Lindemuth,  

                  Attorneys General, Juneau, for the Appellee.  

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


                  Superior Court Judge. *  

                  Judge ALLARD.  

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

Constitution and Administrative Rule 24(d).  

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

                          James Allen Charles Jr. is a convicted sex offender.                                                    In November 2014,            

the superior court revoked Charles's probation based on Charles's failure to attend a                                                                                   

polygraph appointment with his probation officer. The court imposed 9 months to serve                                                                           


for this violation.  This was the State's second petition to revoke Charles's probation.                                                                                    

The first petition to revoke Charles's probation (based on excessive use of alcohol) had  


been resolved less than a month before the second petition was filed.  


                          On appeal, Charles argues that the superior court erred when it revoked his  


probation based on a single missed appointment.  According to Charles, a defendant's  


probation can only be revoked for a "willful" violation of the terms of his probation.  


Charles contends that he did not knowingly or purposely miss his appointment and that  


the court therefore had no authority to revoke his probation.  


                          For the reasons explained here, we conclude that the existence of "good  


cause" to revoke a defendant's probation as required by AS 12.55.110(a) does not  


necessarily depend on the willfulness of the violation.  Instead, it depends on the nature  


of  the  probation  condition,  the  applicable  mental  state  for  the  violation,  and  the  


significance of the violation with regard to the defendant's amenability to continued  


probation supervision.2  


                                               In the current case, the superior court found that (1) Charles had  


notice of the polygraph appointment and his obligation to attend the appointment; (2)  


Charles failed to attend the polygraph appointment for reasons that were within his  


control; (3) the missed polygraph appointment and Charles's failure to keep track of this  


appointment were partofalarger pattern ofCharles's noncompliancewith and resistance  


to the rehabilitative aspects of probation; and (4) Charles's failure to commit to his  

       1     Prior to these probation revocations, Charles's mandatory parole had been revoked                                           

multiple times.  

       2     See Pulusila v. State, 425 P.3d 175, 180-82 (Alaska App. 2018).  

                                                                                - 2 -                                                                           2630

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

responsibilities as a sex offender on probation and his failure to actively engage in the                                                                                                                                                                              

rehabilitative process made him dangerous to the community.                                                                                                                                          These findings are well                                        

supported by the record and sufficient to constitute "good cause" to revoke Charles's                                                                                                                                                              

probation in this case.                                                 Accordingly, we find no error in the court's decision to revoke                                                                                

Charles's probation.   

                     Background facts and prior proceedings                                                    

                                          In 1983, Charles was convicted of first-degree burglary and second-degree                                                                                                                 

sexual assault, and sentenced to 6 years to serve.   Charles's probation in that case was  

later revoked for selling cocaine to an undercover police agent, and he ultimately served                                                                                                                                                                    

the remainder of his sentence in prison.                                                               

                                          In 1994, Charles was convicted of first-degree sexual assault, second-                                                                                                                                       

degree sexual assault, and second-degree sexual abuse of a minor for sexually assaulting                                                                                                                                                          



a   fourteen-year-old.                                                    As  a  second  felony  offender,  Charles  received  a  composite  


sentence of 25 years with 5 years suspended (20 years to serve) for these new crimes.  


                                          Prior tohisreleaseonmandatory parole, Charles'sparolewas anticipatorily  


revoked for failure to participate in and complete court-ordered sex offender treatment  


while in prison.  Following his release, Charles's parole was revoked more than once  


based on his failure to comply with the terms of his mandatory parole.  Charles finally  


completed  his  mandatory  parole  in  March  2014,  but  his  supervision  on  probation  



                                          Charlescontinuedto strugglewith theobligationsofhis probation. Charles  


was frequently late to his appointments with his probation officer, and he would often  

           3          Charles  v.  State,  1997  WL  33832396,  at  *1-2  (Alaska  App.  Apr.  2,  1997)  


                                                                                                                                 -  3 -                                                                                                                          2630

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

arrive with incomplete forms or accounts of his daily activities that were not sufficiently  


detailed.  Charles also tested positive for drug use.  


                    In  August  2014,  the  State  filed  its  first  petition  to  revoke  Charles's  


probation, alleging excessive use of alcohol based on a police contact in which Charles  


was suspected of driving under the influence.  As a result of this petition to revoke,  


Charles's probation conditions were modified to prohibit any use of alcohol.  


                    A little more than a month later, on September 26, 2014, the State filed a  


second  petition  to  revoke  Charles's  probation  after  Charles  missed  a  scheduled  


polygraph examination. In this petition, the probation officer alleged that Charles posed  


a "high risk" for assaulting or abusing new victims.  


                    At the adjudication hearing that followed, Charles acknowledged that he  


had received notice of the polygraph examination from his probation officer, who had  

notified  him  by  phone  and  who  had  also  written  down  the  date  and  time  of  the  


appointment on a business card and given it to Charles.  


                    According to Charles, heput thepolygraph appointment card into hiswallet  


along with an appointment card for his sex offender treatment, which was scheduled for  


four days after the polygraph appointment.  


                     Sometime on September 24, the day before the polygraph appointment,  


Charles  received  a  text  from his  employer  telling  him that  he  needed  to  work  the  


following day.  Charles testified that it did not occur to him that he was not available to  


work and it was only the next day, after he returned home from working, that he became  


concerned that he might have had an appointment.  When Charles first looked in his  


wallet, he only saw the appointment card for the sex offender treatment (which was  


scheduled for four days later).  But when Charles looked behind that appointment card  


and saw the polygraph appointment card, he realized that he had missed the polygraph  


appointment.  Charles then called his probation officer and left a message explaining  


                                                              - 4 -                                                         2630

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

what happened.  Charles also went into the probation office the following morning and  


met with his probation officer. He was given an appointment for the following Monday  


and was allowed to leave the office.  However, later that same day, he was called back  


to the probation office and arrested.   The probation officer  later explained that the  


decision to petition for revocation was based on Charles's status as an untreated sex  


offender and his pattern of failing to take his probation obligations seriously.   The  


probation officer also explained that rescheduling the polygraph appointment would not  


have been a simple matter, and that these appointments required significant coordination  


and were critical to the sex offender containment model used to supervise sex offenders  


on probation.  


                    At  the  adjudication  hearing,  Charles's  attorney  argued  that  Charles's  


probation should not be revoked based on a single missed appointment.  The attorney  


further argued that Charles had not "willfully" failed to attend his appointment; instead  


he had simply made "an honest mistake."  


                    The superior court agreed with Charles's attorney that Charles had not  


missed his polygraph appointment on purpose.  But the court noted that Charles had a  


legal obligation "to do what it takes to make sure [he was] not going to forget [the  


appointment]," and that he had failed to meet that obligation. The court emphasized that  


its  decision  would  be  different  if  Charles  had  missed  the  appointment  due  to  


circumstances that were outside his control.  


                    At the disposition hearing that followed, the court heard argument about  


Charles's larger pattern of inattention to his probation obligations and the safety risks  


that  Charles  posed  as  an  untreated  sex  offender.                          The  court  subsequently  revoked  


Charles's  probation  and  imposed  9  months  of  his  remaining  suspended  sentence,  


concluding  that  Charles  continued  to  be  a  dangerous  offender  with  a  high  risk  of  


reoffending and a very low chance of successfully completing his probation.  


                                                              -  5 -                                                        2630

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

                       Why we uphold the superior court's revocation of Charles's probation                                                                                                                                     

                                             Charles argues that Alaska law prohibits a trial court from revoking a                                                                                                                                                                      

defendant's probation unless the court finds that the defendant "willfully" or knowingly                                                                                                                                                                   

violated the terms of his probation. Charles also asserts that due process prohibits a court                                                                                                                                                                               

 from finding a violation of probation without proof of a culpable mental state.                                                                                                                                                                 

                                             The State contends that a defendant can be held strictly liable for any                                                                                                                                                

violation of probation that may occur, even if the violation resulted from circumstances                                                                                                                                                       

outside the defendant's control, or otherwise occurred through no fault of the defendant.                                                                                                                                                                                                         

The State argues that a defendant's mental state is only relevant at the disposition stage                                                                                                                                                                                   

-  and that, even then, the State is not required to prove any particular mental state.                                                                                                                                                                             

                                            We disagree with both parties for the reasons we explained in a recent case,                                                                                                                                                      



Pulusila v. State                                     .     In Pulusila, we rejected the State's contention "that a defendant's lack  


of culpability is completely irrelevant when a court decides whether the facts establish  



                                                                                                                                                                                         Instead,  we  concluded  that  a  

good  cause  to  revoke  the  defendant's  probation." 


defendant's mental state and a defendant's "blameworthiness" for the violation could be  


critical to the determination of whether the defendant's probation should be revoked, and  



to the determination of how much, if any, suspended time should be imposed. 


                                            As  we  explained  in  Pulusila,  the  ultimate  question  in  any  probation  


revocation  proceeding  is  whether  "good  cause"  exists  to  revoke  the  defendant's  



                                        To find good cause to revoke a defendant's probation, a trial judge must find  

           4          Pulusila v. State, 425 P.3d 175 (Alaska App. 2018).  

           5          Id. at 181.  

           6          Id. at 177, 179.  

           7          See AS 12.55.110(a); Trumbly v. State, 515 P.2d 707, 709 (Alaska 1973); Pulusila,  

425 P.3d at 179.  

                                                                                                                                        - 6 -                                                                                                                                2630

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

that "continuation of probationary status would be at odds with the need to protect                                                               


society and society's interest in the probationer's rehabilitation."                                                                               

                                                                                                                            Revocation should  


follow a violation of a condition of probation only when "that violation indicates that the  



corrective aims of probation cannot be achieved." 


                         Our holdingin Pulusila is in accord with theUnited States SupremeCourt's  



opinion in Bearden v. Georgia.                               In Bearden, the United States Supreme Court held that  


a defendant's probation cannot be revoked solely based on the defendant's failure to pay  


a fine or restitution if the defendant made "sufficient bona fide efforts" to fulfill his  


financial obligations under the terms of his probation but was nevertheless unable to do  



           As the Court explained, imprisonment in such a case would be contrary to the  


"fundamental  fairness  required  by  the  Fourteenth  Amendment"  because  it  "would  


deprive the probationer of his conditional freedom simply because, through no fault of  



his own, he cannot pay the fine."                             The Court also noted, however, that if the probationer  


willfully refused to pay the fine or failed to make bona fide efforts to pay, revocation of  



the defendant's probation and imposition of suspended time could be justified. 


                         In the current case, the superior court found that Charles had failed to take  


reasonable steps to keep track of his polygraph appointment.  The court also found that  


Charles's  failure  to  keep  track  of  this  appointment  was  part  of  a  larger  pattern  of  


noncompliance with his probation obligations and a failure to fully engage in treatment.  

      8     Pulusila, 425 P.3d at 178-79 (quoting Trumbly, 515 P.2d at 709).  

      9     Id. at 179 (quoting Trumbly, 515 P.2d at 709).  

      10    Bearden v. Georgia, 461 U.S. 660 (1983).  

      11    Id. at 660-61.  

      12    Id. at 672-73.  

      13    Id. at 672.  

                                                                           -  7 -                                                                    2630

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

The court was also clear that it would not have found a violation if Charles's failure to                                                                                                                                             

attend his appointment had been due to circumstances outside his control - such as                                                                                                                                                   

getting in a car accident or being at the hospital.                                                         

                                    Onappeal, Charles asserts that                                                    thecourt                essentially foundthatheacted only                                                 

with "criminal                           negligence" when he failed to attend the polygraph appointment. Charles    

then argues that a higher culpable mental state - recklessly or knowingly - is required                                                                                                                              

before revocation of a defendant's probation can occur. In support of this claim, Charles                                                                                                                              

cites  Hamrick v. State,                                         a 2003 case in which we reversed the defendant's probation                                                                                     

revocation because we concluded that the State had failed to show a "willful violation"                                                                                                                         

of Hamrick's probation.                                           14  


                                    But Hamrick  is distinguishable from the present case.   In Hamrick, we  


reversed the trial court's anticipatory revocation of Hamrick's probation because we  


concluded that the Department of Corrections had failed to provide sufficient notice to  



                                                                                                                                                                                              As we explained  

Hamrick that his actions would constitute a violation of his probation. 


in our decision, the problem in Hamrick  arose primarily from the ambiguity of the  



probation condition.                                                                                                                                                                                  

                                                                 Hamrick's probation condition required him to "successfully  


complete an approved sexual offender treatment program as directed by the Department  



of Corrections."                                    We concluded that "as directed by the Department of Corrections"  


meant that the department  could  potentially petition the court to revoke Hamrick's  

          14      Hamrick v. State, 64 P.3d 175 (Alaska App. 2003).  

          15      Id.   at 178 ("[I]n order to find a willful violation, we believe that the department   

needed to establish that Hamrick was fully aware that his behavior was in violation of his                                                                                                                                         

conditions of probation and would result in his revocation.")  

          16      Id. at 178.  

          17      Id. at 176.  

                                                                                                               -  8 -                                                                                                        2630

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

probation if he failed to file a timely second application for treatment (Hamrick's first                                                                             

application was lost), but only if the department had made it sufficiently clear to Hamrick                                                                  


that he was required to file the second application as part of his probation condition.                                                                                         


Because the record showed that Hamrick had never been directly ordered to file the  


second application or to file the second application by a particular time, and that he had  


never been informed that filing the second application was part of his obligations under  



his probation condition, we reversed Hamrick's probation revocation. 


                           Thus, the underlying issue in Hamrick was not whether Hamrick purposely  


or willfully delayed submitting his treatment application on time.  Instead, the problem  


was the lack of proper notice to Hamrick that a delay in filing a second application would  


constitute a violation of the conditions of his probation.  


                           There is no such lack of notice in Charles's case.   Here, the probation  


condition and Charles's duties under the probation condition were both unambiguously  


communicated to Charles.   As Charles himself concedes, he was aware that he was  


required to abide by any specific instructions of his probation officer, and he was also  


aware that his probation officer had instructed him to attend the polygraph appointment.  


Charles further concedes that he was given proper notice of the date of the polygraph  


appointment, and there was no confusion over his obligation to attend this appointment.  


Although  the  superior  court  found  that  Charles  may  not  have  consciously  made  a  


decision to miss that appointment, the superior court also found that Charles's failure to  


keep track of and attend the polygraph appointment was part of a larger pattern of  

       18    Id.  at 178-79 ("[I]n order to revoke Hamrick's probation for failing to file a timely   

application, we believe that the Department of Corrections had the duty to make Hamrick's                                                 

duties clear to him and to make sure that Hamrick understood that his failure to comply              

would violate his probation.").  

       19    Id.  


                                                                                  -  9 -                                                                           2630

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

noncompliance and failure to engage in the treatment-related obligations of his sex                                                                                                             

offender probation.                            Thus, the court could reasonably conclude that Charles's violation                                                                   

indicated   that   "the   corrective   aims   of   probation"   could   not   be   achieved   without  

revocation of Charles's probation.                                               20  



                               For the foregoing reasons, we AFFIRM the judgment of the superior court.  

        20     Pulusila v. State, 425 P.3d 175, 179 (Alaska App. 2018) (quoting Trumbly v. State,  

515 P.2d 707, 709 (Alaska 1973)).  

                                                                                             -  10 -                                                                                        2630  

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