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Kevin Dalton v. State of Alaska (11/6/2020) ap-2682

Kevin Dalton v. State of Alaska (11/6/2020) ap-2682

                                                                     NOTICE
  

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              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
  

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                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



KEVIN DALTON,  

                                                                                        Court of Appeals No. A-13149  

                                               Appellant,                            Trial Court No. 3AN-17-04785 CR  



                                   v.  

                                                                                                       O P I N I O N  

STATE OF ALASKA,  



                                               Appellee.                               No. 2682 - November 6, 2020  



                       Appeal  f                

                                       rom  the  Superior  Court,  Third  Judicial  District,  

                       Anchorage, Michael D. Corey, Judge.  



                       Appearances:  Margi A. Mock, under contract with the Public  

                                                 

                       Defender  Agency,  and  Samantha  Cherot,  Public  Defender,  

                                                                 

                       Anchorage,  for  the  Appellant.                          Nancy  R.  Simel,  Assistant  

                                                                                              

                       Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                       

                       Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.  

                                                                         



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

                                                                

                       Judges.  



                       Judge HARBISON.  


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

                       Kevin Dalton pleaded guilty, pursuant to a plea agreement, to second-                                            



                                                     1  

degree sexual abuse of a minor.                                                                                                    

                                                       On appeal, Dalton challenges two probation conditions,  



                                                                                                                                                 

which implicate his constitutional rights to familial association and free speech.  As we  



                                                                                                                                                 

have previously recognized, probation conditions that infringe constitutional rights are  



                                                                                                                                      

subject to special scrutiny and require the sentencing court to "affirmatively consider,  



                                                                                                                       2  

                                                                                                                                         

and have good reason for rejecting, any less restrictive alternatives."                                                   For the reasons  



                                                                                                                                              

explained in this decision, we remand this case for the trial court to reconsider both  



                                                          

conditions under the appropriate standard.  



                                                       

           Factual and procedural background  



                                                                                                                                                

                       In June2017, twelve-year-oldH.D.reportedthat her stepfather, Dalton, had  



                                                                                                                                   

entered her bedroom in the middle of the night and sexually penetrated her.  According  



                                                                                                  

to H.D., Dalton gave her two pills of what she believed was a "muscle relaxer" earlier  



                                                                                                                                                

in the evening. (Dalton later admitted that the pills were sleeping pills.) After taking one  



                                                                                                                                           

of the pills, H.D. fell asleep. She later awoke to find Dalton touching her vagina. Dalton  



                                                                      

then penetrated her anus with his penis.  



                                                                                                                                                       

                       H.D. reported the abuse to her mother, and her mother contacted the police.  



                                                                                                                                        

Pursuant to a search warrant, the police searched Dalton's iPad and discovered multiple  



                                                                                                                                           

visits, in the seventy-two hours preceding the abuse, to a pornography website, where  



                                                                                                                                     

Dalton viewed files including, "Dad fucks sleeping step daughter 01," and "Surprise  



                 

buttsex."  



      1     AS 11.41.436(a)(2).
  



      2    Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014). 
 



                                                                      - 2 -                                                                  2682
  


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

                      Dalton was charged with two counts of first-degree sexual abuse of a                                                 



           3  

minor.                                                                                                                            

             He later pleaded guilty, pursuant to a plea agreement, to a single reduced charge  



                                                                  4  

                                                                                                                                  

of second-degree sexual abuse of a minor,  with a stipulation that his conduct was among  



                                                                                                    5 

                                                                                                                                        

the most serious included within the definition of the offense.   The agreement left the  



                                                                                                                       

length and terms of Dalton's sentence to the discretion of the trial court.  



                                                                                                                               

                      The trial court ultimately imposed a sentence of 20 years with 10 years  



                                                                                                                             

suspended (10 years to serve), as well as 10 years of probation. Over Dalton's objection,  



                                                                                                                                      

the court also imposed probation conditions that:  (1) restricted his contact with "the  



                                                                                                                                      

victim(s) of[his]crime(s)"and (2) prohibited internet access without prior approval from  



                       

his probation officer.  



                                                                                                                               

           The probation condition prohibiting contact must be narrowly tailored to  

                                                                                                                

           avoid infringement on Dalton's constitutional right to familial association  



                                                                                                                                       

                      On appeal, Dalton first challenges a probation condition that prohibits him  



                                                                                                                                        

from contacting "the victim(s) of [his] crime(s)" without written permission from his  



                                                                                                                                         

probation officer and his sex offender treatment provider. Dalton does not argue that he  



                                                                                                                                          

should be permitted to contact H.D. However, in this context, the statutory definition of  



                                                                                                                                           

"victim" includes not only H.D., but also H.D.'s mother, Alicia D., because H.D. is a  



           6  

minor.                                                                                                                                 

             Because Alicia D. and Dalton have two young sons together, Dalton argues that  



      3    AS 11.41.434(a).  



     4     AS 11.41.436(a)(2).  



      5    AS 12.55.155(c)(10).  



      6    See AS 12.55.185(19) (defining "victim" to include:  "(A) a person against whom  an  



offense has been perpetrated; [and] (B) one of  the following, not the perpetrator, if  the person  

specified in (A) of  this paragraph is a minor, incompetent, or incapacitated:  (i) an individual  

                                                                                                                       (continued...)  



                                                                  - 3 -                                                              2682
  


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

this condition will unduly restrict his familial association with his biological children, as                                                                                                                                                                                                                                                             



well as with Alicia D. herself.                                                                                              



                                                       Both parties agree that this condition must be construed narrowly to avoid                                                                                                                                                                                                           



infringement of Dalton's constitutional right to familial association.                                                                                                                                                                                                                   Both parties also   



agree that Alicia D., rather than a probation officer and treatment provider, should have                                                                                                                                                                                                                                                      



the power to determine whether and to what extent to allow contact.                                                                                                                                                                                                                           Indeed, the trial                                   



court also agreed with this premise, and stated its intent "to leave contact in the hands of                                                                                                                                                                                                                                                              



the victims and their election."                                                                                                     The probation condition ultimately imposed fails to                                                                                                                                                                 



effectuate this intent, instead allowing a probation officer and treatment provider to                                                                                                                                                                                                                                                                   



potentially override Alicia D.'s wishes.                                                                                                                            



                                                       The State concedes that we should remand this probation condition to the                                                                                                                                                                                                                       



trial court for further proceedings.                                                                                                            We have reviewed the record, and we agree that a                                                                                                                                                             



remand is required to ensure that the no-contact condition is appropriately narrow to                                                                                                                                                                                                                                                                    

avoid any unnecessary interference with Dalton's constitutional rights.                                                                                                                                                                                                                            7  



                                                                                                                                                                                                                                                                                                                         

                            The  probation  condition  making  all  internet  access  contingent  on  

                                                                                                                                                                                                                                                        

                          probation officer discretion unduly restricts Dalton's liberty  



                                                                                                                                                                                                                                                                                                                                            

                                                       Dalton  also  challenges  a  probation  condition  that  prohibits  him  from  



                                                                                                                                                                                                                                                                                                                                                   

accessing the internet without his probation officer's permission.  Dalton contends that  



                                                                                                                                                                                                                                                                                                                                    

this condition  impermissibly delegates the sentencing court's duty  to  apply  special  



              6             (...continued)  



living in a spousal relationship with the person specified in (A) of this paragraph; or (ii) a  

                                                                                                                                                                                                                                                                       

parent, adult child, guardian, or custodian of the person").  

                                                                                                                                                                                 



              7            See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to  



independently evaluate any concession of error by the State in a criminal case).  



                                                                                                                                                                        - 4 -                                                                                                                                                                    2682
  


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

                                                                                                                      8  

scrutiny to a condition implicating Dalton's First Amendment rights.                                                     The State urges     



                                                                                                                         9  

us to uphold the condition based on our decisions in                                         Dunder v. State                                     

                                                                                                                            and Diorec v.  



          10  

State.        



                                                                                                                                   

                       In Dunder v. State, we reviewed a probation condition that prohibited  



                                                                                                                                                

possession  of  "any  device  capable  of  accessing  the  internet,  storing  movies,  or  



                                                                                                                                      

photographs[,] or [that] has a wireless capability such as an iPod, MP3 player device[,]  



                            11  

                                                                                                                                   

or a cell phone."                We recognized the burden such a condition placed on an offender's  



                                              

reintegration into society:  



                                                                                                                 

                       Dunder points out that it is difficult to function in modern  

                                                                          

                       society without access to the technology that Judge Smith's  

                                                                                                               

                       order prohibits him from possessing.   He further suggests  

                                                                                                                          

                       that,  by  the  time  he  is  released  from his  lengthy  term of  

                                                                                                                

                       imprisonment, it will likely be even more difficult to function  

                                                                                                                               

                       in society "without the use of at least one electronic device."  

                                                                                                                          

                       Given the rapid advance  of technology and the length of  

                                                                                                                    

                       Dunder's  sentence  of  imprisonment,  we  agree  that  some  

                                                                                                             

                       degree of access to these devices will probably be necessary  



                                                                                        [12]  

                                                                            

                       to Dunder's reintegration into society. 



      8     Cf.  Packingham  v.  North  Carolina,  137  S.Ct.  1730,  1737  (2017)  (holding  that  



prohibiting  all  access  to  social  networking  websites  impermissibly  infringed  the  First  

                                                                                                                     

Amendment rights of registered sex offenders).  



      9    Dunder v. State , 2009 WL 1607917 (Alaska App. June 10, 2009) (unpublished).   



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



      11   Dunder , 2009 WL 1607917, at *1 (alteration in original).  



      12   Id.  



                                                                      -  5 -                                                                 2682
  


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

                           As an alternative to a total ban, we approved a probation condition "that                                           



prohibited Dunder from using or possessing Internet-capable, wireless, and electronic                                         



                                                                                                                                                                     13  

storage devices unless he obtains permission from his probation or parole officer."                                                                                        



                                                                                                                                                                    

                           Similarly,  in  Diorec  v.  State,  we  upheld  a  probation  condition  that  



                                                                                                                                                                    

prohibited a defendant "from opening an Internet account or accessing the Internet from  



                                                                                                                                                                           14  

                                                                                                                                                                               

another person's account without the prior written permission of his probation officer." 



                                                                                                                                                                         

In holding that "[i]t was reasonable for the [trial] court to conclude that supervision of  



Diorec's access to the Internet could promote his rehabilitation and protect the public,  



                                                                                                                                                                          

and that Diorec's probation officer [would] allow any reasonable Internet use that is  



                                                                                                                                                               

important for his rehabilitation," we noted that, "[m]any courts have approved similar  



                                                                                                                                                                         15  

                                                                                                                                                         

conditions when the Internet ban can be relaxed or modified by a probation officer." 



                                                                                                                                                                  

                           We decided Dunder in 2009 and Diorec in 2013.  In the intervening years,  



                                                                                                                                                                        

the role of the internet in society has only grown - and the "many courts" we relied on  



                                                                                                                                                                        

in upholding the conditions in Dunder and Diorec no longer concur with each other on  



                                                                                                                                                       

whether a total internet ban, subject to modification by a probation officer, is sufficiently  



                                                                                                                                                                

narrowly tailored to survive special scrutiny.  Of the seven United States Circuit Courts  



                                                                                                                                                            

of Appeals we cited in Diorec, nearly half have since held that probation officer approval  



                                                                                                                                              16  

                                                                                                                               

is not a sufficient safeguard for First Amendment rights in this context. 



       13    Id.  



       14    Diorec v. State , 295 P.3d 409, 412, 418 (Alaska App. 2013).  



       15    Id.  at 418 & n.25 (citing decisions from several federal circuit courts of appeals);                                                                    see  



also Dunder, 2009 WL 1607917, at *1 n.7 (citing decisions upholding similar conditions).  



       16    See United States v. Holena, 906 F.3d 288, 290-95 (3d Cir. 2018); United States v.  



                                      

LaCoste , 821 F.3d 1187, 1191-92 (9th Cir. 2016);  United States v. Blair, 933 F.3d 1271,  

 1275-81 (10th Cir. 2019).  



                                                                                  -  6 -                                                                            2682
  


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

                         For   instance,   in   United   States   v.   Holena,   the   Third   Circuit   vacated  



probation conditions prohibiting a probationer from possessing or using computers, or                                                                          

otherwise accessing the internet without his probation officer's approval.                                                                 17  The Third  



                                                                                                                                                       

Circuit acknowledged that restricting Holena's internet access was "necessary to protect  



                                                                                                                                                        

the public," in light of the role the internet had played in his underlying offense, which  



                                                                                                                                                 

involved repeatedly visiting an online chat room and attempting to entice a fourteen- 



                                                                                                                   18  

                                                                                                                                                          

year-old boy to meet him in person to engage in sexual acts.                                                            Nonetheless, the court  



                                                                                                                                                       

concluded that the internet restriction was overbroad and unduly restrictive of liberty  



                                                                                                                                                                

because it "gave the probation office no guidance on the sorts of internet use that it  



                                19  

                                                                                                                                                  

should approve."                    The court found "no justification for stopping Holena fromaccessing  



                                                                                                                                                                     

websites where he will probably never encounter a child, like Google Maps or Amazon.  



                                                                                                                                                     

The same is true for websites where he cannot interact with others or view explicit  



                                                                                                         20  

                                                                                        

materials, like Dictionary.com or this Court's website." 



                                                                                                                                              

                         In  United States v. Blair, the Tenth Circuit reached a similar conclusion,  



                                                                                                                                                           

explaining  why  a  condition  that  may  have  been  upheld  under  prior  case  law  was  



                                                            

nonetheless unduly restrictive:  



       17   Holena, 906 F.3d at 290.  



       18   Id.  



       19   Id. at 293.  



      20    Id. ; see also LaCoste, 821 F.3d at 1192 ("When a total ban on Internet access cannot   



be justified, as is the case here, we have held that a proviso for probation-officer approval   

does not cure the problem.  And for good reason:  If a total ban on Internet use is improper      

but a more narrowly tailored restriction would be justified, the solution is to have the district   

court  itself   fashion  the  terms  of   that  narrower  restriction.    Imposing  a  total  ban  and  

transferring open-ended discretion to the probation officer to authorize needed exceptions  

is not a permissible alternative.") (citation omitted).  



                                                                             -  7 -                                                                        2682
  


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

                               In [  United States v. Ullmann                                  , 788 F.3d 1260, 1261 (10th Cir.                               

                               2015)],              we         described                  the        Internet              as        "a       means              of  

                               communication that has become a necessary component of                                                                             

                               modern life."   Four years later, the role that computers and                                                                  

                               the Internet play in our everyday lives has become even more                                                                

                               pronounced, and we expect that trend to continue.                                                                        Thus,  

                               what   was   a   reasonable   restriction   on   Internet-use   in   our  

                               earlier cases may be different from what is reasonable today.                                                                            

                               We must read our prior cases in light of the evolution of the                                                                    

                               Internet and the public's dependency on it.                                                      [21]  



                                                                                                                                                                 22  

                                                                                                                                                                                

                               Several of our sister states have adopted a similar approach.                                                                           For example,  



                                                                                                                                                                                        

 in State v. R.K., the Appellate Division of the New Jersey Superior Court struck down  



                                                                                                                                                                                              

 a parole condition allowing access to social media only with prior permission from the  



                                                            23  

                                                                                                                                                                    

 district parole supervisor.                                       The court rejected the argument that the district parole  



                                                                                                                                                                                              

 supervisor's ability to modify the ban acted as an appropriate "escape valve" to save the  



                                                                                                                                                                                   

ban from "constitutional fatality":  "Neither the [Parole] Board nor its parole officers  



        21      United States v. Blair, 933 F.3d 1271, 1277 (10th Cir. 2019).  



        22      See,  e.g.,  Weida   v.  State,  94  N.E.3d  682,  691-93  (Ind.  2018)  (concluding  that  a  



 condition making internet access contingent upon prior probation officer approval "reaches  

beyond reasonableness into unreasonableness");                                                         State v. R.K., 232 A.3d 487, 502 (N.J. Super.  

App.  Div.  2020)  ("[T]he  parole  officer  should  not  be  given   the  authority   to  make  [an  

 internet] ban constitutional when we have determined it is unconstitutional."); In the Matter  

 of the Personal Restraint of Sickels, 461 P.3d 322, 335 (Wash. App. 2020) ("Delegating   

                                                                                                                

 authority to Mr. Sickels's supervising [community corrections officer] to approve internet  

 access does not solve the problem; a sentencing court may not wholesaledly abdicate its                                                                                    

                                                                                                                                          

judicial responsibility for setting the conditions of [community custody]."); Mutter v. Ross ,  

 811 S.E.2d 866, 873 n.38 (W. Va. 2018) ("[T]he fact that Defendant may use the Internet if   

                                                                                                                                     

he obtains prior written approval from his probation officer cannot salvage this otherwise  

                

 overly broad restriction." (citing United States v. Maxson, 281 F.Supp.3d 594, 600 (D. Md.  

 2017))).  



        23     R.K., 232 A.3d at 490.  



                                                                                             -  8 -                                                                                       2682
  


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

should    be    the    gatekeeper    to    determine    whether    a    person's,    even    a    parolee's,  



                                                                                                                                  24  

constitutional free speech rights via access to social media should be unlocked."                                                     



                                                                                                                             

                      Likewise, in Weida v. State, the Indiana Supreme Court vacated probation  



                                                                                                                       25  

                                                                                                                                       

conditions prohibiting internet access without probationofficer permission.                                                Weidawas  



                                                                                                                                    

convicted of felony incest after he had sexual intercourse with his sixteen-year-old niece,  



         26  

K.M.                                                                                                                             

              Leading up to this offense, Weida used his cell phone to search for explicit  



                                                                                      27  

                                                                                                                                      

pictures on the internet, which he then showed to K.M.                                    The court concluded that a total  



                                                                                                                                      

internet  ban,  subject  only  to  the  exercise  of  a  probation  officer's  discretion,  was  



                         

unreasonable:  



                                                                                                                   

                      Here, the record reveals Weida has no history of misusing the  

                                                                                                        

                      internet or using the internet to perpetrate a crime. However,  

                                                                                              

                      the record does show that Weida used the internet shortly  

                                                                                                         

                      before committing incest with K.M.  He admitted googling  

                                                                                                         

                      explicit  photos  and  showing  them  to  K.M.                               He  likewise  

                                                                                                                

                      admitted viewing an incest website before having sex with  

                                                                                                       

                      K.M.  We cannot ignore that when Weida enjoyed unfettered  

                                                                                                                   

                      internet  access  he  committed  incest.                         Whether  or  not  he  

                                                                                                                  

                      intentionally groomed K.M. for sex, there is no doubt the two  

                                                                                                          

                      went from talking, to looking at sexually explicit material  

                                                                                                    

                      online,  to  having  sex.               But  Weida's  troubles  recognizing  

                                                                                                                      

                      sexual boundaries in person and online should not result in a  



                                                                          [28]  

                                                                    

                      far-reaching, broad internet ban. 



     24    Id. at 501-02.  



     25    Weida, 94 N.E.3d at 693.  



     26    Id. at 686.  



     27    Id.  



     28    Id. at 693.  



                                                                  -  9 -                                                             2682
  


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

                                We agree with the reasoning of those courts that have recognized the                                                                                                    



growing necessity of internet access for full participation in modern society, and for the                                                                                                               



                                                                29  

rehabilitation of offenders.                                                                                                                                                          

                                                                      In particular, we agree with the Tenth Circuit's conclusion  



                                                                                                                                                                                                          

that "what was a reasonable restriction on Internet-use in our earlier cases may be  



                                                                                                                                                                                                         

different from what is reasonable today.  We must read our prior cases in light of the  



                                                                                                                                                  30  

                                                                                                                                                        

evolution of the Internet and the public's dependency on it." 



                                                                                                                                                                                             

                                Since our decision in Diorec in 2013 - and especially since our decision  



                                                                                                                                                                                                 

in Dunder more than a decade ago - dependence on the internet in daily life has grown  



                                 31  

considerably.                                                                                                                                                                     

                                        Accordingly, the burden that an internet ban places on probationers  



                                                                                                                                                                    32  

                                                                                                                                                                                                     

seeking to reintegrate into society has likewise grown considerably.                                                                                                      What may have  



        29      See, e.g., United States v. Eaglin, 913 F.3d 88, 98 (2d Cir. 2019) ("[A]ccess to the                                                                     



Internet is essential to reintegrating supervisees into everyday life, as it provides avenues for                                                       

seeking employment, banking, accessing government resources, reading about current events,                              

and  educating  oneself.");   Weida,  94  N.E.3d   at  687  ("We  live  in  the  internet  age.   The  

internet, cyberspace, the World Wide Web, whatever moniker you choose, pervades our daily   

lives. For many, we even carry the internet around in our pockets or purses. Our cell phones                                                                                 

provide the gateway into cyberspace's vast domains.                                                                          [Indiana citizens] accomplish life's   

most meaningful and mundane everyday tasks with cyberspace at our fingertips.                                                                                                             We apply  

for jobs, we file tax returns, we pay bills, we attend college, we read the news, we navigate,   

we communicate, we shop - all online.").  



        30       United States v. Blair, 933 F.3d 1271, 1277 (10th Cir. 2019).  



        31      See Pew Research Center, Internet/Broadband Fact Sheet , Internet Use Over Time,  

                          

https://www.pewresearch.org/internet/fact-sheet/internet-broadband (reporting that 90% of  

adults in the United States used the internet in 2019, compared to 84% in 2013 and 76% in  

2009);  Pew  Research  Center,  About  Three-in-Ten  U.S.  Adults  Say  They  Are  'Almost  

C        o      n       s      t     a      n       t     l     y      '                O        n      l      i     n      e      ,                F      A        C        T       A       N        K        ,  

https://www.pewresearch.org/fact-tank/2019/07/25/americans-going-online-almost-consta  

ntly (reporting that 81% of Americans used the internet on a daily basis in 2019).  



        32      See, e.g., United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016) ("Use of the  

                                                                                                                                                                                                          

                                                                                                                                                                                  (continued...)  



                                                                                                 -  10 -                                                                                              2682
  


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

been an inconvenience a decade ago - though admittedly a substantial one - may now                                                                             



be an almost total hindrance to reentry into modern society and meaningful participation                                                       



                                       33  

in public discourse.                                                                                                                                               

                                            These developments have called into question our decisions in  



                        

Diorec and Dunder .  



                                                                                                                                                                

                          But Dalton does not ask us to overrule those cases; instead, he argues that  



                                                                                                                                                             

they are factually distinguishable. We agree, and we accordingly resolve Dalton's claim  



                                                                                       

narrowly.  On the record before us, we hold that conditioning Dalton's internet access  



                                                                                                                           

on probation officer approval unduly restricts Dalton's liberty.  



                                                                                                                                                         

                          The internet's role in Dalton's offense does not approach its role in Dunder  



                                                                                                                                                         

and Diorec . Dunder's offenses "directly involved the use of a computer and the Internet  



                                                                                                                                                                     

to commit serious sexual offenses against minors," i.e., two counts of sexual abuse of a  



                                                                                             34  

                                                                                                                                                           

                                                                                                  Diorec's offenses involved a seven- 

minor and the distribution of child pornography. 



                                                                                                                                                                

month long scheme to pose as a sixteen-year-old boy on Twitter, and the use of that  



                                                                                                                                    

online  profile  to  contact  teenage  girls,  one  of  whom  was  his  fourteen-year-old  



       32    (...continued)  



                                                                

Internet is vital for a wide range of routine activities in today's world - finding and applying  

for  work,  obtaining  government  services,  engaging  in  commerce,  communicating  with  

                                                                                                                                                                

friends and family, and gathering information on just about anything, to take but a few  

                                                                                                                                                   

examples. Cutting off all access to the Internet constrains a defendant's freedom in ways that  

make it difficult to participate fully in society and the economy.").  



       33    See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017) ("While in the past  



there may have been difficulty in identifying the most important places (in a spatial sense)  

                                                          

for the exchange of views, today the answer is clear. It is cyberspace - the 'vast democratic  

                                                                                                 

forums  of  the  Internet'  in  general,  and  social  media  in  particular."                                                         (quoting  Reno  v.  

                                                                                                                                      

American Civil Liberties Union , 521 U.S. 844, 868 (1997))) (additional citations omitted).  



       34    Dunder v. State, 2009 WL 1607917, at *1 (Alaska App. June 10, 2009) (unpublished).  



                                                                              -  11 -                                                                         2682
  


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

                        35  

 stepdaughter.               Diorec then abused one of the internet's more benign purposes - online                                             



 shopping - to purchase a spy camera, which he installed in a smoke detector in his                                                                  



 stepdaughter's bedroom to record her surreptitiously, after giving her lubricant and a sex                                                         



       36  

                                                                                                                                                         

toy.        By contrast, Dalton's use of the internet was limited to viewing several files on a  



                                   

 child pornography website.  



                                                                                                                                                  

                        Dunder and Diorec do not stand for the proposition that a sentencing court  



                                                                                                                                                    

may impose an internet ban whenever there is a factual nexus between the internet and  



                                                                                                                                              

the defendant's underlying offense.  We acknowledge - and Dalton does not dispute  



                                                                                                                                                      

- that there is a nexus between Dalton's use of the internet and the sexual abuse he  



                                                                                                                                            

thereafter perpetrated against H.D. We cannot ignore the role of the internet in Dalton's  



                                                                                                                                            

offense, nor would we ask the sentencing court to ignore it.  But as the Indiana supreme  



                                                                                                                                                

court noted, a defendant's "troubles recognizing sexual boundaries in person and online  



                                                                                                 37  

                                                                                                                                                       

 should not result in a far-reaching, broad internet ban."                                            The internet played far less of  



                                                                                                                                   

 a role in Dalton's offense than it did in either Dunder's distribution of child pornography,  



                                                                                                                                                     

 or Diorec's seven-month-long campaign to sexually stimulate, record, and exploit his  



                                                                                                                                                

 stepdaughter.  In short, while we agree with the trial court that there was a factual nexus  



                                                                                                                                                   

justifying a restriction on Dalton's internet access, a complete internet ban, subject only  



                                                                                                                                                       38  

                                                                                                                                            

to the unconstrained discretion of a probation officer, unduly restricts Dalton's liberty. 



      35    Diorec v. State , 295 P.3d 409, 412 (Alaska App. 2013).  



      36    Id. at 412.  



      37     Weida v. State, 94 N.E.3d 682, 693 (Ind. 2018).  



      38    We held in Diorec that "a condition prohibiting Internet access could be reasonable  



                                                                                                                                                

only  if  the  condition  allows  a  probation  officer  to  allow  necessary  Internet  use  under  

                                                                                                                        

appropriate conditions."  Diorec , 295 P.3d at 418 (emphasis added).  We did not hold that  

                                                                                                                                                

a condition prohibiting internet access is necessarily reasonable whenever a probation officer  

                                                                                                                                   (continued...)  



                                                                        -  12 -                                                                   2682
  


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

                                  On   remand,   the   trial   court   must   narrowly   tailor   any   restrictions   on  

                                 Dalton's internet access                                                               



                                                                  The record shows that the trial court was troubled by the broad scope of the                                                                                                                                                                                                                                                                               



internet restriction and attempted to remedy it.                                                                                                                                                                                         The court recognized "[t]he reality . . .   



that Mr. Dalton is not going to be in jail forever. . . . [And] unless there's significant                                                                                                                                                                                                                                                                                            



changes in society between now and when Mr. Dalton's ultimately released, the genie's                                                                                                                                                                                                                                                                                                                  



out of the bottle.                                                                    And the internet . . . is not going away."                                                                                                                                                                           The court thus sought to                                                                                              



impose something less than a full internet ban, something that would allow Dalton access                                                                                                                                                                                                                                                                                                                    



to the internet with appropriate probation supervision, so that he could "establish a track                                                                                                                                                                                                                                                                                                                 



record of being able to [use the internet] in an acceptable fashion." To this end, the court                                                                                                                                                                                                                                                                                                                      



proposed modifying the condition to allow Dalton to open and maintain a single internet                                                                                                                                                                                                                                                                                                               



 account,   which   would   be   subject   to   warrantless   searches   and   probation  officer  



monitoring.   



                                                                  Dalton objected to the court's proposal, arguing that the internet is "the air                                                                                                                                                                                                                                                                              



that we all breathe now," and that any restriction on his internet access was impractical                                                                                                                                                                                                                                                                                          



 and unduly restrictive.                                                                                         After hearing an explanation of the probation office's standard                                                                                                                                                                                                                



procedure for granting internet access - including conducting an individualized risk                                                                                                                                                                                                                                                                                                                                   



 assessment, consulting with treatment providers, and considering available monitoring                                                                                                                                                                                                                                                                                              



tools such as software or supervised use - the court ultimately decided to impose the                                                                                                                                                                                                                                                                                                                                       



original condition rather than attempting to craft a narrower restriction.                                                                                                                                                                                                                                                                                        



                 38              (...continued)  



has discretion to allow exceptions to the ban.  Thus, Dunder and Diorec do not stand for the  

                                                                                                                                                                                                                                                                                                                                                 

broad proposition suggested by the State that a probation officer's discretion cures any  

                                                                                                                                                           

unconstitutionality in an otherwise overbroad internet restriction.  

                                                                                           



                                                                                                                                                                                                        -  13 -                                                                                                                                                                                                        2682
  


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

                         On remand, we encourage the trial court to resume its consideration of less                                                        



                                                                                                       39  

restrictive alternatives to limit Dalton's internet access.                                                                                          

                                                                                                            We note that the trial court's  



                                                                                                                                                       

proposed modification would allow Dalton to join the vast majority of American adults  



                                                                                                                                                        

who use the internet on a daily basis for a full range of  activities, including those  



                                                                                                                                                               

implicating First Amendment rights.  But it would also allow his probation officer to  



                                                                                                                                                  

monitor his internet use from a discrete access point, without having to police Dalton's  



                                                                                                                                                           

access to a potentially unlimited number of devices and accounts.  On remand, the trial  



                                                                                                                                                   

court  may  again  consider  this  potential  restriction  or  any  other  narrowly  tailored  



                                                                                               

condition consistent with the principles discussed above.  



             Conclusion  



                                                                                                                                                             

                         We REMAND Dalton's case to the trial court for reconsideration of the  



                                                                                                                                                  

probation conditions restricting contact with Alicia D. and Dalton's biological children,  



                                                                                                                                                   

as well as Dalton's access to the internet.  The trial court must apply special scrutiny  



                               

analysis to both conditions.  



      39    Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014) (holding that trial courts  



                                                                                                                                                            

must subject probation conditions implicating constitutional rights to special scrutiny and  

                                                                                                                

"affirmativelyconsider, and have good reason for rejecting, anyless restrictive alternatives").  



                                                                            -  14 -                                                                       2682
  

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