452 P.3d 688
Alaska Ct. App.2019Background
- Jason Ray pleaded guilty to second-degree theft under a plea agreement calling for a term of imprisonment with most time suspended and 3 years probation; he served the active jail term and was released on probation.
- Probation officer issued a one-week travel permit to Anchorage with instructions to stay at the Brother Francis Shelter; PO later alleged Ray left the shelter without written permission and was intoxicated there (PBT .121).
- At the probation-adjudication hearing the PO testified about the shelter departure and relayed the PBT result; the superior court found Ray violated probation.
- At disposition Ray announced he rejected further probation and sought a "flat-time" sentence; the judge nonetheless imposed an active jail term (leaving 90 days suspended) and continued Ray on unsupervised probation for 5 years with one condition: obey the law.
- Ray appealed, challenging (1) sufficiency of evidence for the two contested violations and (2) the legality of continuing probation after his expressed rejection; the Court of Appeals affirmed the revocation and rejected any constitutional right to refuse probation, but could not reach a majority on the statutory question (AS 12.55.090(f)) and certified that issue to the Alaska Supreme Court.
Issues
| Issue | Ray's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for leaving shelter | Ray: Brother Francis Shelter was not his "residence"; he notified PO he would stay at airport | State: PO testimony and Ray's messages show he left the agreed location without permission | Court: Evidence supported finding Ray left the shelter without permission; violation upheld |
| Sufficiency/weight of intoxication evidence (PBT) | Ray: PBT testimony lacked Daubert foundation; hearsay/insufficient to prove intoxication | State: Rules of evidence (and Daubert) do not govern revocation hearings; PBT result probative | Court: Hearsay objection properly overruled; Daubert argument not preserved; PBT (.121) sufficiently supported intoxication finding |
| Constitutional right to refuse probation | Ray: Rejecting probation is a constitutional right requiring a flat-time sentence | State: No constitutional right; any right derives from statute | Court: No constitutional right recognized; power to suspend/impose probation is statutory |
| Statutory right to reject probation (AS 12.55.090(f)) | Ray: Brown and precedent preserve statutory right to refuse probation; judge must give Chaney-compliant flat-time sentence | State: 2012 amendment (AS 12.55.090(f)) prevents unilateral reduction of bargained-for probation; defendant cannot unilaterally reject probation | Court: Split panel — no majority on interpretation; issue certified to Alaska Supreme Court (three opinions: Mannheimer — statute ambiguous, preserves right; Suddock — preserves right but mandates imposition of full suspended time if rejected; Allard — statute bars unilateral rejection) |
Key Cases Cited
- Brown v. State, 559 P.2d 107 (Alaska 1977) (recognized defendants’ statutory right to reject probation)
- State v. Chaney, 477 P.2d 441 (Alaska 1970) (sentencing criteria deriving from Article I, §12; Chaney factors govern probation-related sentencing)
- State v. Henry, 240 P.3d 846 (Alaska App. 2010) (when probationer rejects probation, sentencing court must apply Chaney rather than automatically imposing full suspended time)
- Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (U.S. 1993) (federal standard for admissibility of expert/scientific evidence)
- State v. Coon, 974 P.2d 386 (Alaska 1999) (Alaska adoption of the Daubert standard)
- Pete v. State, 379 P.2d 625 (Alaska 1963) (courts lack inherent power to suspend sentences and impose probation; authority must be statutory)
- Chinuhuk v. State, 413 P.3d 1215 (Alaska App. 2018) (upheld legislatively created non‑refusable probation scheme for sex offenders)