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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


FALEALO MANUELE PULUSILA,
                                                      Court of Appeals No. A-12783
                            Appellant,               Trial Court No. 3AN-13-5018 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                    No. 2599 — May 18, 2018


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Paul E. Olson, Judge.

              Appearances: Callie Patton Kim, Assistant Public Defender,
              and Quinlan Steiner, Public Defender, Anchorage, for the
              Appellant. Patricia L. Haines, Assistant Attorney General,
              Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,
              Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.


              In September 2016, Falealo Manuele Pulusila was on felony probation, and
his driver’s license was suspended. Pulusila borrowed another man’s truck. The


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
Anchorage police contacted Pulusila; one thing led to another; and the police searched
the truck.
              Inside the front console, the police found a small explosive device.
Underneath a pile of clothes in the back seat, they found ammunition for a firearm. And
inside a backpack in the back seat, they found a methamphetamine pipe.
              One of Pulusila’s conditions of probation prohibited him from having any
ammunition or explosives in his “custody, residence, or vehicle”. Another of Pulusila’s
conditions of probation prohibited him from having any drug paraphernalia in his
“residence or ... any vehicle under [his] control”. Based on the discovery of the
explosive device, the ammunition, and the meth pipe in the truck that Pulusila was
driving, the State petitioned the superior court to revoke Pulusila’s probation.
              Pulusila contested the State’s petition. He pointed out that the truck was
borrowed, and he asserted that he was unaware that the truck contained the explosive
device, the ammunition, and the meth pipe.
              The superior court did not resolve the question of whether these items
belonged to Pulusila, or whether Pulusila was even aware that the truck contained these
items. Instead, the superior court ruled that it did not make any difference whether
Pulusila knew that these items were in the truck.
              More specifically, the superior court ruled that Pulusila’s probation could
lawfully be revoked if the State proved (1) that Pulusila was aware of the two probation
conditions that prohibited him from having these items, and (2) that the prohibited items
were present in a vehicle that was under Pulusila’s control, even if Pulusila did not know
about them.
              According to the court, it was no defense that Pulusila was unaware that the
prohibited items were in the vehicle. If the law were otherwise, the superior court



                                          –2–                                        2599

declared, this would “give free rein” to anyone on probation to say, “It’s not my car”, or,
if the car was rented, “[Those items were] left in there by [a] previous renter.”
              Based on this ruling, the superior court revoked Pulusila’s probation and
imposed all of Pulusila’s remaining suspended jail time.
              Pulusila now appeals the superior court’s decision.
              Pulusila’s first argument is that, contrary to the superior court’s ruling, his
two probation conditions did not make him strictly liable for any prohibited items that
might be found in his residence or vehicle. Pulusila contends that his probation
conditions prohibited him from knowingly possessing ammunition, explosives, or drug
paraphernalia.
              Pulusila next argues that if his probation conditions did, in fact, make him
strictly liable for any prohibited items found in the borrowed truck, then those probation
conditions violated the constitutional guarantee of due process of law.
              The State responds that Pulusila’s probation conditions did, indeed, impose
strict liability for any prohibited items found in the borrowed truck. The State contends
that even if Pulusila had no reason to know that the truck contained these prohibited
items, Pulusila nevertheless had a duty to make sure, before he borrowed the truck, that
the vehicle did not contain any items that he was prohibited from having.
              The State further contends that this kind of strict liability is lawful. More
specifically, the State argues that, under Alaska law, a court can properly revoke a
defendant’s probation even when it is clear that the defendant was not at fault and did not
act with any culpable mental state. According to the State, the defendant’s lack of fault
is a matter that a court should consider at the disposition hearing (i.e., at sentencing) —
after the court has found that the defendant violated their probation.
              We will address these contentions in reverse order. We will first discuss
the State’s claim that Alaska law allows a court to hold a defendant strictly liable for any

                                            –3–                                         2599

violation of probation, regardless of the defendant’s lack of fault. As we explain in this
opinion, the State’s argument is partially correct. There are circumstances when a court
can revoke a defendant’s probation for a violation of probation that was not the
defendant’s fault. But there is no universal rule that a defendant’s lack of fault is
irrelevant.
              Rather, under Alaska law, a court can revoke a defendant’s probation when
the defendant’s violation of probation supports the conclusion that the aims of probation
are not being met, and that the defendant’s continued release on probation would be at
odds with the goals of protecting society and fostering the defendant’s rehabilitation.
When a court makes this determination, the defendant’s fault (or lack of fault) may
sometimes have little relevance — but conversely, the defendant’s fault or lack of fault
may sometimes be a crucial factor in the court’s decision.
              We will then address the question of how to interpret Pulusila’s conditions
of probation, given our construction of Alaska probation law. As we explain in this
opinion, we agree with Pulusila that his conditions of probation only prohibited him from
knowingly possessing the ammunition, explosives, and drug paraphernalia. And because
of this, the superior court was required to resolve the contested issue of whether Pulusila
was aware that these prohibited items were present in the vehicle.


       The question of whether a defendant’s probation may be revoked even
       when the defendant bears no fault for their failure to abide by the
       conditions of probation


              As we just explained, the State takes the position that a defendant’s
probation can be revoked even when the defendant’s action (or the defendant’s failure
to act) was not accompanied by any culpable mental state — in other words, even when
the failure to abide by the conditions of probation was not the defendant’s fault. The

                                           –4–                                        2599

State bases this argument on our supreme court’s decision in Trumbly v. State, 515 P.2d
707 (Alaska 1973).


          (a) The Alaska Supreme Court’s decision in Trumbly


               In Trumbly, the State petitioned the sentencing court to revoke a
defendant’s probation because the defendant failed to promptly report to his probation
officer upon his release from prison. In fact, Trumbly left Alaska without obtaining his
probation officer’s permission. 1
               Trumbly defended by asserting that he was mentally ill, that his mental
disease or defect “deprived him of the substantial capacity to conform his conduct to the
conditions of [his] probation”, and that he therefore should not be held accountable for
his failure to report and for his unauthorized departure from the state. 2
               This phrasing— “substantialcapacity” to “conform [one’s] conduct” to the
requirements of the law — is drawn from the second prong of the American Law
Institute’s formulation of the insanity defense. See § 4.01(1) of the Model Penal Code
(Official Draft, 1962). This was the version of the insanity defense that was in effect in
Alaska when Trumbly’s case was litigated. See Schade v. State, 512 P.2d 907, 911 &
n. 2 (Alaska 1973).
               The supreme court concluded that even if Trumbly lacked the substantial
capacity to obey his conditions of probation because of mental disease or defect, this did
not prevent the sentencing court from revoking Trumbly’s probation.




   1
       Trumbly, 515 P.2d at 708.
   2
       Ibid.

                                           –5–                                       2599

              The question, according to the supreme court, was not whether Trumbly
was morally blameworthy or potentially criminally liable for failing to abide by the
conditions of his probation. Rather, the question was whether the sentencing court could
reasonably conclude that the aims of probation were not being met, and that Trumbly’s
continued release on probation “would be at odds with the need to protect society and
society’s interest in [Trumbly’s] rehabilitation”:

                      [T]he defense of insanity is irrelevant to the issues
              which are to be determined in a probation revocation hearing.
              At such a hearing, the inquiry is focused on whether the
              probationer engaged in conduct violative of the conditions
              under which he was permitted to [remain free on probation].
              ... [A] probationer should [not] be able to prevail upon an
              assertion that his probation should not be revoked because
              mental illness renders him unable to conform his conduct to
              the terms of his probation. Conformity to reasonable and
              lawful terms of probation is a prerequisite to the continuation
              of probationary status.

Trumbly, 515 P.2d at 708-09.
              The supreme court then described the procedures that a court should follow,
and the decisions that a court must make, when the government petitions the court to
revoke a defendant’s probation:

                     The first step in a [probation] revocation decision
              involves a wholly retrospective factual question: whether the
              [probationer] has in fact acted in violation of one or more of
              the conditions of his [probation]. Only if it is determined that
              the [probationer] did violate the conditions does the second
              question arise: should the [probationer] be recommitted to
              prison[,] or should other steps be taken to protect society and
              improve chances of rehabilitation.


                                           –6–                                      2599

                       The requirement that probation revocation follow after
               a showing of “good cause” [see AS 12.55.110] requires the
               trial judge to find that [a] continuation of probationary status
               would be at odds with the need to protect society and
               society’s interest in the probationer’s rehabilitation.
               Revocation should follow [a defendant’s] violation of a
               condition of probation when that violation indicates that the
               corrective aims of probation cannot be achieved.

Trumbly, 515 P.2d at 709.


            (b) The State’s suggested interpretation of Trumbly


               The State argues that we should draw two conclusions from the Trumbly
decision.
               First, the State suggests that probation revocation proceedings should be
viewed as having two parts. According to the State, the first part of the proceedings is
an adjudication phase, where the court determines the historical facts and decides
whether the defendant has violated the terms of probation. Then, if the court finds that
the defendant has violated their probation, the proceedings move to a disposition phase,
where the court decides what should be done about the defendant’s violation of probation
— which could range from simply returning the defendant to probation, all the way to
imposition of the entirety of the defendant’s remaining suspended sentence.
               Second, the State suggests that Trumbly stands for the proposition that a
defendant’s lack of fault is irrelevant in the adjudication phase of the proceedings.
According to the State, the fact that a defendant lacked any culpable mental state, and
that a defendant may have done their best to conform to the conditions of probation, only
becomes relevant during the disposition phase of the proceedings. Even if the defendant
was not at fault, this does not prevent the sentencing court from finding that the

                                            –7–                                     2599

defendant violated the conditions of probation. The defendant’s lack of fault only
matters when the court decides what consequences should be imposed for the violation.
                We conclude that both of the State’s assertions mischaracterize the supreme
court’s decision in Trumbly.
                First, even though Trumbly appears to describe probation revocation
proceedings as having two stages, it is clear from the supreme court’s discussion that a
sentencing court must perform three duties. The court’s first duty is to ascertain the
historical facts of the case. The court’s second duty is to decide whether, given those
facts, there is good cause to revoke the defendant’s probation. (Under AS 12.55.110(a),
a defendant’s probation can only be revoked for good cause.) The court’s third duty —
which arises only if the court has found good cause to revoke the defendant’s probation
— is to determine what consequences, if any, should be imposed on the defendant.
                The problem with describing probation revocation proceedings as having
two phases — an “adjudication” phase and a “disposition” phase — is that this
description can mask the underlying reality that the court must perform three separate
duties. This problem becomes acute when, as in Pulusila’s case, the State argues that the
“adjudication” phase encompasses both the court’s duty to ascertain the historical facts
and the court’s duty to decide whether those facts constitute good cause for revokingthe
defendant’s probation.
                By grouping both of these duties into the adjudication phase, and then
arguing that a defendant’s lack of fault is irrelevant to the entire adjudication phase, the
State reaches the conclusion that a defendant’s lack of fault is irrelevant to the question
of whether there is good cause to revoke the defendant’s probation. But Trumbly says
the opposite.
                In Trumbly, the supreme court expressly recognized that, whatever the
historical facts of a specific case might be, our law forbids a sentencing court from

                                            –8–                                        2599

revoking a defendant’s probation unless the court finds that those facts constitute “good
cause” to revoke probation. Id. at 709. The supreme court then defined “good cause”
as a finding that “the corrective aims of probation cannot be achieved”, and that
“continuation of [the defendant’s] probationary status would be at odds with the need to
protect society and society’s interest in the probationer’s rehabilitation.” Ibid.
              The Trumbly court did not say that a defendant’s lack of culpability was
irrelevant to this determination. Rather, the Trumbly court said that a defendant’s lack
of responsibility under the second prong of the American Law Institute’s test forinsanity
was irrelevant to this determination.
              As we have already explained, Trumbly asserted that his probation should
not be revoked because he met the second prong of the American Law Institute’s test for
insanity — i.e., he suffered from a mental disease or defect, and this mental disease or
defect deprived him of “the substantial capacity to conform his conduct to the conditions
of [his] probation”.
              This was not a claim that Trumbly lacked any culpable mental state when
he violated his probation. Rather, Trumbly was claiming that, despite his awareness that
he should be reporting to his probation officer, and that he should not leave Alaska
without permission, his failure to abide by these duties should be excused because his
mental disease or defect deprived him of the capacity to conform his conduct to the
requirements of his probation.
              We explained this point of law in Hart v. State, 702 P.2d 651 (Alaska App.
1985):

                    [W]hatever insanity defense exists [under the
              “substantial capacity” test], it is different from ... [a negation
              of] the prosecution’s proof that the defendant had the
              necessary mens rea to commit a particular offense ... . [See]


                                            –9–                                      2599

              Mill v. State, 585 P.2d 546 (Alaska 1978) (mental disease or
              defect can prevent formation of specific intent but not general
              intent). ... [E]ven if the Alaska legislature ... entirely
              repeal[ed] any insanity defense, it would stillbe necessary for
              the state to prove beyond reasonable doubt that the defendant
              engaged in conscious voluntary acts, [see AS 11.81.600(a)],
              and [that the defendant] possessed the requisite mens rea for
              the offense. AS 12.47.020.

Hart, 702 P.2d at 655-56.
              In other words, under the American Law Institute’s test, proof that a
defendant lacked the substantial capacity to conform their conduct to the requirements
of the law was not a negation of the defendant’s mens rea. Rather, it was an additional
factor that excused the defendant’s mens rea. 3
              This is the context for the supreme court’s statement in Trumbly that, even
assuming Trumbly could establish the second prong of the American Law Institute’s
insanity test, Trumbly’s inability to stop himself from violating the conditions of
probation was not a valid defense to a probation revocation proceeding — because, if
Trumbly could not stop himself from violating his probation, then it was clear that the
aims of Trumbly’s probation were not being met, and that Trumbly’s continued release



   3
      For an example of the supreme court’s application of this principle, see Smith v. State,
614 P.2d 300, 304 (Alaska 1980):

       All the evidence points to a finding that Smith ... appreciate[d] the wrongfulness
   of his conduct when he shot Officer Jordan. Smith admitted ... that what he did was
   illegal and morally wrong. All three medical experts testified that Smith, even if
   suffering from a mental illness, could appreciate the wrongfulness of his conduct.
   The record contains no contrary evidence. Thus, [our] focus ... is on the second prong
   of the legal responsibility test: whether Smith had substantial capacity to conform his
   conduct to the requirements of the law when he shot Officer Jordan.

                                            – 10 –                                       2599

on probation “would be at odds with the need to protect society and society’s interest in
[his] rehabilitation”.
              Thus, the State misreads Trumbly when the State asserts that Trumbly
stands for the proposition that a defendant’s lack of culpability for a probation violation
is never relevant when assessing whether there is good cause to revoke the defendant’s
probation.
              For example, nothing in Trumbly suggests that the supreme court would
have upheld a revocation of Trumbly’s probation if Trumbly had failed to report to his
probation officer because he was involved in a car accident on his way to the probation
office and was taken to the hospital. Similarly, nothing in Trumbly suggests that the
supreme court would have upheld a revocation of probation if Trumbly’s probation
officer had moved up Trumbly’s appointment at the last minute, and if Trumbly did not
arrive until his normally scheduled time because he never received notice of the new,
earlier time for his appointment.
              These circumstances — the lack of a voluntary act in the first example, and
the lack of a culpable mental state in the second example — would be relevant to a
determination of whether there was good cause to revoke Trumbly’s probation. We
therefore reject the State’s contention that Trumbly stands for the proposition that a
defendant’s lack of culpability is completely irrelevant when a court decides whether the
facts establish good cause to revoke the defendant’s probation.
              Instead, we interpret the supreme court’s decision in Trumbly as consistent
with the approach reflected in State v. Leach, 20 P.3d 709 (Idaho App. 2001). Like
Trumbly, the Leach decision emphasizes that the ultimate issue to be decided is whether
the defendant’s conduct demonstrates that the conditions of probation are not ensuring
the public safety or fostering the defendant’s rehabilitation — and that sometimes there



                                          – 11 –                                      2599

will be good cause to revoke the defendant’s probation even when the defendant’s
violation of probation was not willful or was beyond the defendant’s control. 4
               (The State cites dozens of cases from other jurisdictions in support of its
overly expansive reading of Trumbly. Many of these cases do, indeed, include language
suggesting that a defendant’s lack of culpability is no excuse in a probation revocation
proceeding. But most of these cases involve the same issue presented in Trumbly — i.e.,
whether a defendant’s violation of probation should be excused because of the
defendant’s mental disease or defect. 5 And in several other cases, the expansive
language that the State relies on is dictum — because those courts ultimately based their
decisions on findings by the sentencing court that the defendant did act with a culpable
mental state. 6 )




   4
        See Leach, 20 P.3d at 713: “In deciding whether revocation of probation is the
appropriate response to a violation, the court considers whether the probation is achieving
the goal of rehabilitation and whether continued probation is consistent with the protection
of society. ... [If] a probationer’s violation of a probation condition was not willful, or was
beyond the probationer’s control, a court may not revoke probation and order imprisonment
without first considering alternative methods to address the violation. Only if the trial court
determines that alternatives to imprisonment are not adequate in a particular situation to meet
the state’s legitimate interest in punishment, deterrence, or the protection of society, may the
court imprison a probationer who has made sufficient, genuine efforts to obey the terms of
the probation order.” (Citations omitted)
   5
      See, e.g., United States v. Gallo, 20 F.3d 7, 14-15 (1st Cir. 1994); United States v.
Brown, 899 F.2d 189, 194 (2nd Cir. 1990); Knight v. Estelle, 501 F.2d 963, 964-65 (5th Cir.
1974); United States v. Pinjuv, 218 F.3d 1125, 1127, 1130-31 (9th Cir. 2000).
   6
      See, e.g., United States v. Jones, 133 F.Appx 824, 826 (3rd Cir. 2005); United States
v. Warner, 830 F.2d 651,657-58 (7thCir. 1987); Vann v. State, 143 So.3d 850, 861-62 (Ala.
Crim. App. 2013); State v. Joe, unpublished, 2008 WL 2838501 at *4 (Ariz. App. 2008);
People v. Colabello, 948 P.2d 77, 79-80 (Colo. App. 1997).

                                             – 12 –                                        2599

       Why we conclude that Pulusila’s conditions of probation prohibited him
       from knowingly possessing the prohibited items in the borrowed vehicle


              As we explained in the introductory section of this opinion, the superior
court ruled that Pulusila’s conditions of probation made him strictly liable for the
presence of the explosive device, the ammunition, and the meth pipe in the truck, even
if Pulusila had no reason to know that the truck contained these prohibited items.
              However, the superior court did not take testimony (or consider any other
evidence) when it construed the meaning of Pulusila’s two probation conditions. Instead,
the superior court based its ruling on the wording of the conditions — and on the
perceived benefits of a policy that would allow sentencing courts to revoke a defendant’s
probation based on prohibited items that were left in a rental car by a previous renter.
              In these circumstances, we do not owe deference to the superior court’s
interpretation of the two probation conditions. Instead, we will independently determine
how a reasonable person in Pulusila’s place would have understood these probation
conditions, “taking into consideration the language of the disputed provision[s] ... and
the case law interpreting similar provisions”. 7
              Here is the text of the two provisions at issue:

                      You shall not own, possess, purchase, transport,
              handle[,] or have in your custody, residence, or vehicle, any
              firearm, ammunition, explosives, or weapon(s) ... capable of
              inflicting bodily harm or incapacitation.

                    You shallnot use, possess, handle, purchase, give[,] or
              administer any controlled substance, including marijuana,
              without a valid prescription. ... You shall not have on your

   7
      Joubert v. State, 926 P.2d 1191, 1193 (Alaska App. 1996), citing Peterson v. Wirum,
625 P.2d 866, 872 n. 10 (Alaska 1981).

                                           – 13 –                                    2599

              person, in your residence or vehicle[,] or [in] any vehicle
              under your control, any drugs or paraphernalia normally
              associated with the illicit use of drugs.

              The State asserts that these two provisions, on their face, prohibited Pulusila
from being in control of a vehicle that had these prohibited items in it — even if Pulusila
remained wholly ignorant of their presence.             This argument is based on a
misunderstanding of the law of possession.
              Under Alaska’s criminal law, to prove that a person “possessed” an item,
the government must prove that the person engaged in a voluntary act of possessing or
controlling the item. AS 11.81.600(a). In this context, a “voluntary” act of possession
means physical possession or control where the person “was aware of the physical
possession or control for a sufficient period to have been able to terminate it.”
AS 11.81.900(b)(66).
              The State points out that, strictly speaking, the definitions contained in
AS 11.81 apply only to the interpretation of the criminal statutes in Title 11. But
AS 11.81.600(a) and AS 11.81.900(b)(66) merely codify the common understanding of
what “possession” means. Reasonable people would not expect that a court could revoke
a person’s probation and send them to prison for “possessing” something that they had
no knowledge of.
              As the Supreme Court of California recently noted in People v. Hall, 388
P.3d 794, 799 (Cal. 2017), “knowledge of the contraband’s presence and of its restricted
nature is implicit in probation conditions restricting firearms and narcotics, regardless
of any minor variations in the wording of those conditions.”
              We conclude that Pulusila’s conditions of probation must be interpreted in
light of this common understanding. We do not believe that a reasonable person in
Pulusila’s circumstances would interpret his probation conditions as authorizing the

                                           – 14 –                                       2599

superior court to revoke Pulusila’s probation and send him to prison if his teenage child,
or one of his child’s friends, secretly brought marijuana into his home. Likewise, we do
not believe that a reasonable person in Pulusila’s circumstances would interpret his
probation conditions as authorizing the superior court to revoke Pulusila’s probation and
send him to prison if Pulusila borrowed or rented a car and, unbeknownst to him,
someone else had left a weapon or drugs in the car.
               This interpretation of the two probation conditions is also supported by the
rule laid down by our supreme court in Roman v. State, 570 P.2d 1235, 1240 (Alaska
1977) — the rule that conditions of probation must be “reasonably related to the
rehabilitation of the offender and the protection of the public[,] and [not] unduly
restrictive of liberty.”
               Roman counsels us that, if there is ambiguity in the meaning of a probation
condition, we should consider whether either of the two competing interpretations makes
more sense in light of the purposes of probation. Here, it is unclear what public benefit
would be achieved by sending probationers back to jail for “possessing” explosives,
ammunition, or drug paraphernalia that they did not know they had.
               For these reasons, we conclude that Pulusila’s two conditions of probation
prohibited him from knowingly possessing the listed prohibited items. Thus, without
proof that Pulusila knew that these items were in the truck, the superior court had no
basis for finding that Pulusila violated these conditions of his probation.
               In its brief to this Court, the State asserts that the superior court
affirmatively found that Pulusila was, in fact, aware of the presence of the prohibited
items in the vehicle — that Pulusila’s claim of ignorance was “simply not supported by
the facts”. But the record fails to support the State’s characterization of the superior
court’s ruling. The superior court expressly ruled that it did not make any difference
whether Pulusila knew that the prohibited items were present in the vehicle. Indeed, the

                                           – 15 –                                     2599

court declared that it would be contrary to good policy to require the State to prove that
Pulusila was aware of these items in the vehicle.
             Because of this ruling, the superior court never resolved the issue of
whether Pulusila was aware of the presence of the prohibited items in the truck. Instead,
the superior court mistakenly concluded that the resolution of this issue was irrelevant
to the question of whether Pulusila violated the conditions of his probation.


      Conclusion


             The superior court’s judgement is REVERSED. The State is free to renew
its petition to revoke Pulusila’s probation, but the State must prove that Pulusila
knowingly possessed the prohibited items.
             Given our resolution of this issue, we need not address Pulusila’s claim that
his probation revocation sentence was excessive.




                                          – 16 –                                     2599

