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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA

ANDREW DENNIS JOHNSON,
                                                     Court of Appeals No. A-12180
                           Appellant,                Trial Court No. 3PA-12-581 CR

                    v.
                                                              OPINION
STATE OF ALASKA,

                           Appellee.                   No. 2596 — April 20, 2018


             Appeal from the Superior Court, Third Judicial District, Palmer,
             Kari C. Kristiansen, Judge.

             Appearances: Hanley Robinson, Attorney at Law, under
             contract with the Office of Public Advocacy, Anchorage, for
             the Appellant. Brittany L. Dunlop, Assistant District Attorney,
             Palmer, and Craig W. Richards, Attorney General, Juneau, for
             the Appellee.

             Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
             Judges.

             Judge WOLLENBERG.


             Andrew Dennis Johnson pleaded guilty to manslaughter. Pursuant to an
agreement with the State, Johnson agreed to his term of imprisonment, but his probation
conditions were left open to the superior court.
               On appeal, Johnson challenges several of the conditions imposed by the
court, including conditions that regulate Johnson’s contact with his wife and son. For
the reasons explained in this opinion, we reverse the condition regulating Johnson’s
contact with his wife, and we vacate and remand for reconsideration the condition
regulating Johnson’s contact with his son. We affirm the alcohol- and drug-related
conditions.


      Underlying facts
               On March 7, 2012, Andrew Johnson and his wife, Holly Johnson, got into
an argument. Holly left their home and went to the home of her friend, Jessica Smith.
               Later that night, Johnson asked Holly’s brother, David Carlton, to give him
a ride to Smith’s home. According to Johnson, he wanted to retrieve the truck Holly had
driven to Smith’s residence. He was also concerned that Holly might use drugs with
Smith, and he wanted Holly to return home.
               Carlton drove Johnson and Johnson’s son, Spencer Johnson, to Smith’s
home. At the time, Spencer was nineteen years old and had moved to Alaska two
months earlier to live with Johnson and Holly. Johnson said he took Spencer with him
because he (Johnson) did not have a driver’s license and he needed someone to drive his
truck from Smith’s residence.
               Upon arriving at Smith’s home, Johnson told Carlton to stay in the car, and
he told Spencer to start the truck belonging to Johnson and Holly. Johnson went alone
to the front door of the house. Smith’s fiancé, Michael Plummer, came to the door, and
Johnson and Plummer began shoving each other. Johnson told Plummer to tell him
where Holly was, and Plummer questioned Johnson about who he was and what he was
doing there.



                                           –2–                                       2596

             Seeing the altercation, Spencer ran to the house to intervene, and he stabbed
Plummer in the throat with a knife. Smith retrieved a gun and shot at Johnson, Spencer,
and Carlton (who had also entered the home), hitting Johnson. The three men fled.
             Plummer died at the scene.


       Proceedings
             The State secured an indictment against Johnson for alternative counts of
second-degree murder, manslaughter, and criminally negligent homicide, and two counts
of first-degree burglary.1 The State also charged Spencer Johnson with first-degree
murder and related charges. Carlton was not charged.
             Pursuant to a plea bargain with the State, Johnson pleaded guilty to
manslaughter. The plea bargain called for Johnson to receive a sentence of 15 years with
5 years suspended (10 years to serve) and 5 years of probation. The State dismissed the
remaining charges against Johnson. The agreement left Johnson’s probation conditions
open to the sentencing court.
             Prior to sentencing, the author of the presentence report proposed a series
of probation conditions. These conditions included (1) a condition that precluded
Johnson from knowingly associating with another felon absent permission by a probation
officer, and (2) a condition that absolutely barred Johnson from having contact with his
son and co-defendant, Spencer Johnson, who was still awaiting trial at that time.
             Johnson’s attorney objected to several of these conditions. First, Johnson’s
attorney challenged the condition that restricted Johnson from knowingly associating
with another felon, noting that the condition would restrict Johnson from having contact



   1
       AS 11.41.110(a)(3); AS 11.41.120(a)(1); AS 11.41.130; and AS 11.46.300(a)(1),
respectively.

                                          –3–                                        2596

with his wife, Holly (who had a felony conviction), and potentially his son, Spencer
(who might soon become a felon). He also challenged the condition absolutely barring
Johnson from having contact with Spencer. Second, Johnson’s attorney challenged the
conditions prohibiting Johnson’s use and possession of alcohol and illegal controlled
substances, as well as related conditions precluding Johnson from residing in a residence
where alcohol is present or entering an establishment where alcohol is the main item for
sale, and requiring Johnson to submit to random testing, warrantless searches for drugs
and alcohol, and a substance abuse assessment.
             At sentencing, the prosecutor agreed that Holly had a felony conviction and
that the proposed condition generally precluding Johnson from having contact with
felons applied to contact between them. But rather than propose an exception that would
simply permit Johnson to have contact with Holly, the State proposed that the couple
could have contact so long as they were both “in compliance with their respective
probation officers.” Superior Court Judge Kari C. Kristiansen adopted a version of the
State’s proposal, permitting contact between Johnson and Holly so long as “both parties
are compliant with parole/probation.”
             The prosecutor opposed any contact between Johnson and Spencer. The
prosecutor argued that this condition was necessary because Johnson and Spencer
“conspired together” on the way to Smith’s house to get Holly back at any cost.
Johnson’s attorney disputed the notion that anyone in the car was getting “tuned up” on
the way to the Smith residence. And he argued that, in any event, a no-contact order was
neither necessary nor the least restrictive condition, given the father-son relationship
between Johnson and Spencer.
             The court ultimately deleted the condition absolutely barring Johnson from
having contact with Spencer, explaining that once sentencing was completed in both
cases and the defendants were out of custody, “I don’t see why Mr. Johnson can’t have

                                          –4–                                       2596

contact with his son.” But, as it had with Holly, the court made this contact contingent
— only if “both parties are in compliance with probation/parole.”
              (The court also imposed a condition allowing Johnson to have contact with
Spencer while Spencer’s case was in presentencing status, “so long as neither talks about
the case while they are incarcerated.” Johnson does not directly challenge this condition
on appeal, and we note that Spencer has since been convicted and sentenced.2)
              Johnson now appeals the challenged probation conditions.


       The State’s jurisdictional argument
              The State argues that this Court lacks jurisdiction to consider Johnson’s
appeal. If raised by a party or identified by the court, a potential flaw in subject-matter
jurisdiction is a threshold issue that we must decide before addressing other issues
presented in an appeal.3
              Alaska Statute 12.55.120(a) limits a criminal defendant’s right of sentence
appeal. Under AS 12.55.120(a), a defendant who has received a felony sentence
exceeding two years to serve or a misdemeanor sentence exceeding 120 days may appeal
the sentence to this Court on the ground that it is excessive “unless the sentence was
imposed in accordance with a plea agreement . . . and that agreement provided for
imposition of a specific sentence[.]” This Court’s jurisdictional statute, AS 22.07.020,
specifically incorporates the limitations set out in AS 12.55.120.4




   2
       Spencer was convicted of second-degree murder and first-degree burglary. See State
v. Johnson, Judgment and Order of Commitment/Probation, 3PA-12-547 CR.
   3
       See Totemoff v. State, 905 P.2d 954, 957 (Alaska 1995).
   4
       See AS 22.07.020(b).

                                           –5–                                        2596

               The State argues that this Court lacks jurisdiction to hear Johnson’s appeal
because he agreed to his term of imprisonment as part of a plea agreement. The answer
to the State’s argument is found in our decision in Allen v. Anchorage.5
               In Allen, we held that we had jurisdiction to hear “non-term-of­
imprisonment sentence appeals” even when the term of imprisonment imposed by the
trial court does not exceed the threshold amount to serve set out in AS 12.55.120(a).6
Like Johnson, Allen challenged the trial court’s imposition of a probation condition.7
We declared that we had jurisdiction to consider Allen’s claim even though she had
received a term of imprisonment of only 30 days to serve, well below the threshold
amount in AS 12.55.120(a) for a misdemeanor offense.8 We interpreted the threshold
amounts in AS 12.55.120(a) (and by extension, our jurisdictional statute
AS 22.07.020(b)) as solely limiting our ability to hear appeals challenging the
excessiveness of a defendant’s term of imprisonment — but placing no restrictions on
our jurisdiction to hear appeals challenging other terms of a defendant’s sentence.9 We
recently reaffirmed Allen’s core holding in Maguire v. State.10
               Here, Johnson agreed to his term of imprisonment, and thus, he has no right
to appeal that term of imprisonment.11 But Johnson is not appealing his term of
imprisonment; he is appealing his probation conditions, which he actively contested in

   5
        Allen v. Anchorage, 168 P.3d 890 (Alaska App. 2007).
   6
        Id. at 894.
   7
        Id. at 891.
   8
        Id. at 891-92.
   9
        Id. at 895.
   10
        Maguire v. State, 390 P.3d 1175, 1177-78 (Alaska App. 2017).
   11
        AS 12.55.120(a).

                                           –6–                                        2596

the superior court. Consistent with our holdings in Allen and Maguire, we conclude that
we have jurisdiction to decide Johnson’s non-term-of-imprisonment appeal.12


        Johnson’s challenges to the limitations on his association with Holly
        Johnson and Spencer Johnson
              Johnson argues that the conditions regulating his contact with his wife,
Holly, and his son, Spencer, unduly restrict his right to familial association and therefore
violate his constitutional rights to due process, privacy, and freedom of association. In
particular, Johnson challenges Special Condition No. 9, which provides that Johnson
“may have contact with Holly Johnson [only] as long as both parties are compliant with
parole/probation.” Johnson also challenges Special Condition No. 11, which provides
that Johnson “may have contact with Spencer Johnson post[-]sentence [only] if both
parties are in compliance with probation/parole.”
              In general, a sentencing court has broad authority to fashion conditions of
probation so long as they are “reasonably related to the rehabilitation of the offender and
the protection of the public and [are] not unduly restrictive of liberty.”13 But when a
probation condition restricts an individual’s constitutional rights, that condition is subject
to special scrutiny.14 Here, both Special Condition No. 9 and Special Condition No. 11




   12
      See, e.g., Keeling v. State, 2017 WL 1291140 (Alaska App. Apr. 5, 2017)
(unpublished) (on rehearing); see also Alaska R. App. P. 215(a)(2) (providing that a
defendant may appeal a sentence of any length on grounds other than excessiveness).
   13
      Thomas v. State, 710 P.2d 1017, 1019 (Alaska App. 1985) (quoting Roman v. State,
570 P.2d 1235, 1240 (Alaska 1977) (internal quotation marks omitted).
   14
       Roman, 570 P.2d at 1241 (quoting United States v. Consuelo-Gonzalez, 521 F.2d 259,
265 (9th Cir. 1975)); see also Diorec v. State, 295 P.3d 409, 417 (Alaska App. 2013).

                                            –7–                                          2596

restrict Johnson’s familial associations with his wife and son, and thus plainly implicate
his constitutional rights.15
              Thus, before the superior court could impose these conditions, or otherwise
restrict Johnson’s contact with Holly or Spencer, the court needed to subject these
conditions to special scrutiny. To survive special scrutiny, a probation condition must
be both “reasonably related to the rehabilitation of the offender and protection of the
public” and “narrowly tailored to avoid unnecessary interference” with a defendant’s
constitutional rights.16 The court must “affirmatively consider and have good reason for
rejecting lesser restrictions.”17


        Why we reverse any limitation on Johnson’s contact with Holly Johnson
              The record shows that the superior court did not apply the necessary
heightened level of scrutiny to the probation condition restricting Johnson’s contact with
Holly. Rather than start with the premise that Johnson had a constitutional right to
unrestricted contact with his wife absent a compelling reason to limit that contact, the
court started with the premise that Holly’s status as a felon permitted the court to restrict
Johnson’s contact with her, as long as that restriction did not absolutely prohibit their
contact. The court stated, “That’s his wife, and I don’t see any reason why we should



   15
       See Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014); Hinson v. State,
199 P.3d 1166, 1174 (Alaska App. 2008); see also Dawson v. State, 894 P.2d 672, 680
(Alaska App. 1995) (recognizing that “[a] condition of probation restricting marital
association plainly implicates the constitutional rights of privacy, liberty and freedom of
association and . . . must be subjected to special scrutiny”).
   16
        Simants, 329 P.3d at 1039 (internal quotations omitted).
   17
      Peratrovich v. State, 903 P.2d 1071, 1079 (Alaska App. 1995); Dawson, 894 P.2d at
680-81.

                                            –8–                                         2596

further restrict their association so long as they’re compliant on probation and parole
while they’re being monitored.” (Emphasis added.)
              But when a defendant’s spouse is a felon, the court must consider whether
any restriction on contact with that person, however slight, is necessary.18 If the court
imposes a restriction, it must “affirmatively consider and have good reason for rejecting
lesser restrictions.”19
              Although we would generally remand this issue to the superior court for
application of special scrutiny, we conclude that there is nothing in the record to support
a restriction on Johnson’s contact with Holly.20 The restriction appears to have been
based solely on the fact that Holly had a prior, unrelated (and unspecified) felony
conviction. Johnson was not charged with engaging in criminal conduct together with,
or against, Holly, and the prosecutor did not argue that there were any past instances of
assaultive or other criminal conduct between them. The prosecutor also did not argue
that Holly’s past conviction would actively undermine Johnson’s rehabilitation, and the
court’s comments underscore that the court itself did not believe that Johnson’s contact
with Holly would actively undermine Johnson’s rehabilitation or the safety of the public.




   18
       See Dawson, 894 P.2d at 680-81 (recognizing that “precluding association between
marital partners” is “an extreme restriction of liberty” and vacating a condition that precluded
contact between the defendant and his co-defendant wife absent probation officer approval
where the trial court had not narrowly tailored the restriction or explained why Dawson’s
other probation conditions were insufficient to address the court’s concerns).
   19
        Peratrovich, 903 P.2d at 1079; Dawson, 894 P.2d at 680-81.
   20
        See Dawson, 894 P.2d at 680-81.

                                             –9–                                           2596

               We acknowledge that restrictions on familial association may be justified
by “actual necessity and the lack of less restrictive alternatives.”21 But the State did not
establish, the court did not identify, and the record fails to otherwise disclose, why any
restriction on Johnson’s contact with Holly was necessary in this case.
               Accordingly, we reverse Special Condition No. 9.


        Why we direct the superior court to reconsider Special Condition No. 11,
        which restricts Johnson’s contact with Spencer Johnson
               We reach a slightly different conclusion with regard to the restriction on
Johnson’s contact with his son, Spencer. Here, given the status of Johnson and Spencer
as co-defendants, there may be some reason to impose a limited restriction on their
contact. But as with the condition regulating Johnson’s contact with Holly, the superior
court failed to subject this condition to the necessary special scrutiny. We also have
concerns about the way the imposed restriction will operate in practice. Accordingly,
we vacate and remand this condition for reconsideration.
               Like conditions that restrict marital association, conditions of probation that
restrict the parent-child relationship implicate constitutional rights and are subject to
special scrutiny to ensure that they are “narrowly tailored to avoid unnecessary
interference with family relationships.”22 Although Johnson and Spencer were co-
defendants, their status as co-defendants (or felons) alone did not override the
importance of their familial relationship.23




   21
        Id.

   22
        Simants, 329 P.3d at 1038-39; see also Hinson, 199 P.3d at 1174.

   23
        Dawson, 894 P.2d at 680-81.


                                            – 10 –                                       2596

                The superior court recognized this by rejecting a complete bar on Johnson’s
contact with Spencer. But the court did not further explain why the restriction in Special
Condition No. 11 was necessary, what this limitation on Johnson’s contact with Spencer
was designed to accomplish, and whether the limitation was the least restrictive option
available.
                We note that although Johnson and Spencer were co-defendants, the State
presented no information about whether Spencer — who was nineteen years old when
he committed this offense — had a prior criminal history, nor was there any indication
that Johnson and Spencer had engaged in criminal conduct together in the past or that
they were likely to do so in the future. While the prosecutor argued at sentencing that
Johnson and Spencer were getting “angry” and “ramped up” on the car ride over to the
Smith residence, Johnson’s attorney disputed the factual basis of the prosecutor’s
conclusion. The superior court did not expressly resolve or make factual findings on this
issue.
                Citing the limited nature of the restriction, the State analogizes this case to
Diorec v. State.24 But Diorec is distinguishable. In Diorec, we upheld a probation
condition that made contact between Diorec and his biological daughter contingent on
a family court judge’s order in Diorec’s divorce proceedings.25 Because Diorec had been
convicted of a crime against his stepdaughter, we found it reasonable for the sentencing
court to act to protect other members of Diorec’s family.26 And because the divorce
court had already ordered that any contact between Diorec and his biological daughter



   24
         Diorec v. State, 295 P.3d 409 (Alaska App. 2013).

   25
         Id. at 414.

   26
         Id.


                                             – 11 –                                       2596

had to be approved by her counselor, the sentencing court’s restriction was narrowly
tailored and avoided potentially conflicting court orders.27
              In contrast, Johnson was not convicted of a crime against a family member.
And there was no separate proceeding where a potentially inconsistent order had been,
or would be, issued.
              Indeed, by rejecting any restrictions on Johnson’s contact with Spencer
while both were in compliance with probation and parole, the court appears to have
concluded that such contact was not likely to cause the problems envisioned by the
prosecutor or to present any other danger to the public or undermine Johnson’s
rehabilitation. These findings suggest that the court may conclude, after application of
special scrutiny, that no restriction on Johnson’s contact with Spencer is necessary to
ensure Johnson’s rehabilitation and the safety of the public.
              If, however, the court concludes that some limitation on Johnson’s contact
with Spencer is required, the court must ensure that the limitation is the least restrictive
necessary and that the condition does not suffer from certain problems of vagueness and
overbreadth that are present in the current limitation.
              Special Condition No. 11 allows Johnson to have contact with Spencer as
long as both parties are “in compliance with probation/parole.” The court did not define
“compliance.” It is therefore unclear whether the bar on contact is triggered by any
violation of probation or parole, or only those violations for which the probation officer
initiates a formal revocation proceeding. As a result, the limitation does not adequately
inform Johnson when he is required to cut off contact, and his contact with Spencer
could seemingly be cut off for trivial infractions.




   27
        Id.

                                          – 12 –                                       2596

             And by making contact dependent on the compliance of “both parties,” the
court has seemingly subjected Johnson to possible revocation and imprisonment if he
initiates contact when Spencer is out of compliance with probation or parole, even absent
proof that Johnson knew of Spencer’s violation. In addition to raising significant due
process issues, sanctioning Johnson in such circumstances lacks any apparent connection
to his rehabilitation. And even if Johnson were aware of Spencer’s violation status,
limiting Johnson’s ability to contact his immediate family members when he himself
otherwise remains compliant with his own supervision would preclude him from
discussing important matters with Spencer, including bail.
             Accordingly, we vacate Special Condition No. 11 and remand for
reconsideration. If, on remand, the State wishes to renew its request for a restriction on
Johnson’s contact with Spencer when both men are out of custody, the superior court
may consider whether a better defined, more fully explained restriction is necessary.
             Johnson makes one additional point with respect to the conditions
regulating his contact with Spencer. Johnson notes that his conditions fail to address the
likely situation in which Johnson is released from custody but Spencer remains
incarcerated. We agree that when Special Conditions Nos. 10 and 11 are read together,
they fail to expressly account for that scenario and therefore fail to give Johnson notice
about whether he may contact Spencer in prison during that period.
             We note, however, that the court’s comments suggest that it did not intend
to limit contact while at least one person was incarcerated (and thus, subject to
monitoring). We agree that a restriction on contact under those circumstances is not
warranted.




                                          – 13 –                                     2596

       Why we uphold the alcohol- and drug-related conditions
              Johnson’s final challenge is to the alcohol- and drug-related probation
conditions. Specifically, Johnson challenges General Condition No. 9 and Special
Conditions Nos. 1-8, which: (1) prohibit Johnson from possessing and consuming
alcohol and illegal controlled substances; (2) require Johnson to submit to testing at the
direction of a probation officer to determine his use of drugs or alcohol; (3) preclude
Johnson from living in a residence where alcohol is present or entering an establishment
where alcohol is the main item for sale; (4) require Johnson to obtain a substance abuse
evaluation and complete any recommended treatment (including up to six months of
residential treatment, if recommended); and (5) subject Johnson to warrantless searches
of his person, personal property, residence, or any vehicle in which he is found for the
presence of alcoholic beverages or drug paraphernalia. Johnson argues that these
conditions are not reasonably related to his rehabilitation or the protection of the public.
              In imposing these conditions, the superior court relied primarily on
Johnson’s criminal history. The court specifically found that Johnson’s use of alcohol
or controlled substances would undermine his rehabilitation, and the court concluded,
based on this history, that testing and monitoring for these substances were reasonably
related to Johnson’s rehabilitation.
              At the time of sentencing, Johnson was forty-one years old. The record
shows that he has a lengthy criminal history of assaultive, property-related, and driving
offenses dating back to the time he was a juvenile. His criminal history includes two
convictions for driving under the influence and a drug-related conviction. One of
Johnson’s convictions for driving under the influence arose from events in August 2003
in which, while intoxicated, Johnson drove over a center divider, struck another vehicle
in oncoming traffic, and then assaulted other drivers after exiting his truck. For this
conduct, Johnson was convicted of second-degree robbery, second- and fourth-degree

                                          – 14 –                                       2596

assault, and driving under the influence. Shortly after his release from custody in 2007,
Johnson was arrested for felony driving under the influence, felony eluding, and resisting
arrest, and although he was not separately convicted for these crimes, he served his
remaining parole and probation time. And in 2010 and 2012, he violated his parole by
consuming alcohol and using cocaine, respectively.
             At the sentencing hearing, Johnson self-reported that he had recently
engaged in alcohol treatment. Johnson acknowledged that he had a “drinking problem”
in the past, but he asserted that he had “curbed” this problem “after [his] last DUI.” In
its comments, the superior court suggested that Johnson’s recent alcohol treatment
demonstrated there were still “alcohol issues at play.”
             Given Johnson’s substance-related criminal history and his recent alcohol
treatment, the superior court could validly conclude that conditions restricting Johnson’s
use of alcohol and illegal drugs, and requiring evaluation, testing, and monitoring for
alcohol and substance abuse, were reasonably related to Johnson’s rehabilitation.28 We
therefore conclude that the superior court did not abuse its discretion in imposing
General Condition No. 9 and Special Conditions Nos. 1-8.


        Conclusion
             We REVERSE Special Condition No. 9, which regulates Johnson’s contact
with Holly Johnson. We VACATE Special Condition No. 11, which regulates Johnson’s
contact with Spencer Johnson, and remand for reconsideration. Further, we direct the
superior court to expressly limit General Condition No. 7 (precluding contact with


   28
       See Phillips v. State, 211 P.3d 1148, 1153 (Alaska App. 2009) (noting that a
sentencing judge may impose a probation condition authorizing warrantless searches for
drugs and alcohol “when substance abuse in the defendant’s background suggests that
searches for drugs and alcohol may further the defendant’s rehabilitation”).

                                          – 15 –                                     2596

felons) so that it does not restrict Johnson from having contact with Holly Johnson, and
so that it does not restrict contact with Spencer Johnson beyond whatever limitations the
court may impose in a revised Special Condition No. 11.
             With these exceptions, we AFFIRM the judgment of the superior court.




                                         – 16 –                                     2596

